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2019 DIGILAW 1069 (JHR)

Biswanath Ghosh v. State of Jharkhand

2019-05-16

RAJESH SHANKAR

body2019
JUDGMENT : Both these petitions have been filed for quashing the FIR and the entire criminal proceeding against the petitioners in connection with Maheshpur (Radipur O.P.) P.S Case No. 14/2011 corresponding to G.R No. 68/2011 allegedly lodged for committing offences punishable under Sections 413/414/120B of IPC and rule 54 (appears to have been wrongly mentioned as rule 40) of Jharkhand Minor Mineral Concession Rules, 2004 now pending in the court of C.J.M Pakur. 2. The factual background of the case, as recorded in the self-statement of the informant- Shashi Bhusan Chaudhary, Sub-Inspector of Police who was the then in-charge of Radipur O.P., P.S.- Maheshpur, is that on 30.01.2011, he got secret information that some vehicles of West Bengal had loaded stones from Sundar Pahari Mines area for sale in the market of West Bengal in higher rates without legal papers. The informant after lodging Sanha, proceeded alongwith the police personnel and found the vehicles of West Bengal coming from Sundar Pahari and on seeing the police party, the drivers tried to escape but they were caught. On inquiry, they failed to show any valid paper relating to the loaded minerals and told that on the telephonic instruction given by the owners of the vehicles to the crusher owners, they loaded the stones and transported the same. The drivers also disclosed their name as well as name of the owners of the vehicles and crusher’s owners. 3. The learned counsel for the petitioner, at the outset, submits that in the instant case, the FIR has been lodged by Sub-Inspector of Police who is not the competent authority to lodge the same as per rule 57 of Rules, 2004. Therefore, the FIR lodged by the informant is liable to be quashed. 4. The learned APP appearing on behalf of the State of Jharkhand in both the cases, submit that the FIR sufficiently discloses the offence under Sections 413/414 of IPC. It is further submitted that the investigation of the case is still pending and as such the same may not be quashed at this stage. 5. 4. The learned APP appearing on behalf of the State of Jharkhand in both the cases, submit that the FIR sufficiently discloses the offence under Sections 413/414 of IPC. It is further submitted that the investigation of the case is still pending and as such the same may not be quashed at this stage. 5. To appreciate the contention of the learned counsel for the petitioners, I have perused the rule 57 of the Rules, 2004 which provides that no court shall take cognizance of the offence committed under Rules, 2004 unless a complaint is made in writing or FIR is lodged by the competent officer or Deputy Director of Mines or Additional Director of Mines or Director of Mines or any other officer empowered by the Government. 6. The Hon’ble Supreme Court in the case of State (NCT of Delhi) v. Sanjay reported in (2014) 9 SCC 772 has held as under:- “72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly.” 7. It would thus emerge that merely because there appears to be the violation of some special provision for which the complaint should be filed by a competent authority, the entire FIR cannot be thrown out if the content of the same sufficiently discloses commission of the offences under the IPC. 8. The petitioners are the owners of some seized trucks and the owners of the crushers. In the present case, undisputedly the FIR has not been lodged by the authority prescribed under rule 57 of Rules, 2004. As such, the question arises as to whether apart from the offences under Rules, 2004, the written report sufficiently discloses the offences under the provisions of IPC or not. 9. Section 413 of IPC provides punishment for the offence of habitually dealing in stolen property whereas section 414 of IPC provides punishment for assisting in concealment of stolen property. 10. As such, the question arises as to whether apart from the offences under Rules, 2004, the written report sufficiently discloses the offences under the provisions of IPC or not. 9. Section 413 of IPC provides punishment for the offence of habitually dealing in stolen property whereas section 414 of IPC provides punishment for assisting in concealment of stolen property. 10. In the present case, it appears from the written report that the vehicles were seized with stones and the drivers did not show any valid paper of the same and they allegedly confessed that they used to transport stones without any valid paper. As such, the informant alleging that the accused persons were habitually dealing in stolen stones lodged the present FIR under Sections 413/414/120B of IPC and rule 54 (appears to have been wrongly mentioned as rule 40) of the Rules, 2004. 11. In the case of State of Haryana & Ors. v. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335, some illustrations have been provided so as to quash the FIR or complaint in exercise of power under section 482 of Cr.P.C. 12. Paragraphs 102 and 103 of the said judgment are reproduced hereinbelow:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 13. Since in the present case, the FIR prima facie discloses the offences both under IPC and Rules, 2004, the present FIR, so far the offences under Sections 413/414/120B of IPC are concerned, cannot be quashed. 14. In view of the aforesaid factual and legal position, the present FIR lodged by the Sub-Inspector of Police who was not the competent authority under Rules, 2004 is quashed so far the offence under rule 54 (appears to have been wrongly mentioned as rule 40) of Rules, 2004 is concerned. However, since prima case has been found against the petitioners under the I.P.C., I do not find any infirmity in the said FIR relating to the offences under Sections 413/414/120B of IPC. Investigating Officer of the case is directed to complete the investigation forthwith and to submit the final report before the concerned court forthwith, if not already done. 15. The present petitions are accordingly disposed of with the aforesaid observations.