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2020 DIGILAW 27 (ORI)

Pankaj Kumar v. State of Odisha

2020-01-28

B.R.SARANGI

body2020
JUDGMENT : Dr. B.R. Sarangi, J. 1. By means of this application, the petitioner, who was appointed as Mines Manager for operation of the mines under Sections 17 and 18 of the Mines Act, 1952, has approached this Court to quash the order dated 04.12.2014 passed by the learned J.M.F.C., Barbil in 2(b) CC No. 20 of 2014 under Annexure-10 taking cognizance of the offence under Section 27 (3) (b) and (c) of the Orissa Forest Act, 1972 and also to quash the proceeding initiated against him. 2. The prosecution story as revealed from the FIR is that the original mining lease was granted for a period of 30 years over an area of 1437.719 hectors w.e.f. 17.01.1933 to 16.01.1963 and the said lease deed was executed on 17.01.1933 and registered for the area such as, Joda West, Khondbond and Katamati in favor of the then Maharaja, Keonjhar The first renewal of Joda West mining lease was granted for the period from 17.01.1963 to 16.01.1983 for period of 20 years. Similarly, the second renewal was granted for a period of 20 years w.e.f. 17.01.1983 to 16.01.2003 and the said lease deed was executed on 27.10.1984. Before expiry of the aforesaid 20 years period, the Joda West Iron Ore & Manganese Mine of M/s. Tata Steel Limited submitted necessary application on 07.12.2001 for third renewal of mining lease, but the said application was not disposed of within the prescribed period. Therefore, the lease period was extended by virtue of Rule 24-A (6) of Mineral Concession Rules, 1960 until such time the State Government decides the renewal application. 2.1. On 21.04.2014, the apex court in the case of Goa Foundation v. Union of India, (2014) 6 SCC 590 , held that the provisions for deemed extension of a mining lease under Rule 24-A (6) of the Mineral Concession Rules, 1960 cannot apply to a renewal under Section 8(3) of the MMDR Act, 1957, i.e., for second and subsequent renewals. Following the case of Goa Foundation mentioned supra, the apex Court in W P. (C) No. 114 of 2014 passed order on 16.05.2014 holding that unless "Express Orders" are issued under Section 8(3) of the MMDR Act, 1957, mining shall remain suspended in cases of second and subsequent renewals. As such, the Government of Odisha was directed to dispose of all the renewal applications within six months, i.e., by 16.11.2014. As such, the Government of Odisha was directed to dispose of all the renewal applications within six months, i.e., by 16.11.2014. In pursuance thereof, on 17.05.2014, the company received letter from the Deputy. Director of Mines, Joda Circle directing it to stop mining operations in its Joda West and Manganese Mine, in view of the order of the apex Court dated 16.05.2014 passed in W.P.(C) No. 114 of 2014 directing suspension of mining operations in all leases under the second and subsequent renewal stage, which were operating on the basis of Rule-24 A(6). On 31.05.2014, the State Government issued fresh express orders under Section 8(3) of the MMDR Act in respect of Joda West Iron Ore & Manganese Mines. Accordingly, the company was allowed to resume the mining operation w.e.f. 01.06.2014. 2.2. Opposite party no. 2-Divisional Forest Officer, vide letter dated 26.07.2014 addressed to the Head (Manganese Group of Mines) of M/s. Tata Steel Limited, issued show cause notice for violation of Section 27 and Section 81(4) of Orissa Forest Act, 1972, as well as and Section 2 of Forest (Conservation) Act, 1980 In compliance of the same, reply was submitted before the DFO by the company through Head (Manganese Group of Mines) on 01.08.2014 But, without taking the fact in proper perspective, the Forest Range Officer, Champua lodged written complaint on 13.11.2014 stating inter alia that Hon'ble Justice M.B. Shah, Commission of Inquiry on illegal mining in the State of Odisha has reported vide Annexure-III (A) of the report submitted to Government of India, that illegal production of ore has been taken up by the lessees in their lease hold area over periods in absence of approval under Section 2 of Forest (Conservation) Act, 1980 Production of ore in the mining lease in forest land in absence of requisite forest clearance amounts to violation of Section 2 of Forest (Conservation) Act, 1980. The Divisional forest Officer, Keonjhar, vide letter dated 23.07.2014, instructed to take immediate legal action under Orissa Forest Act, 1972 for illegal production of ore from forest land in absence of required approval under Section 2 of the Forest Conservation Act, 1980 pursuant thereto, Forest Range Officer, along with Forest In-charge, Joda, namely, Bijaya Kumar Mohanta on 04.08.2014 made an inquiry and convinced that illegal production of iron ore has been taken up by the lessee without required forest clearance and, therefore, FIR No. 281616/2550 dated 04.08.2014 was drawn for mining in forest without any authority, thereby violating section 27(3)(b) and (c) of Orissa Forest Act, 1972, as amended during 2006, and registered OR Case No. 83 of 2014-15 and taken up investigation of the case as per Rule 4 (2) of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980. In the said report, the illegal periods of mining operation were shown to be (1) 17.01.1983 to 16.01.2003, (2) 17.01.2003 to 11.05.2004, (3) 12.05.2005 to 17.07.2005, (4) 18.01.2006 to 22.01.2006 and (5) 23.07.2006 to 10.08.2007 Accordingly, prayer was made for issuance of non-bailable warrant against the accused person for commission of offence amounting to blatant violation of the law of the land. Consequentially, 2(b) CC No. 20 of 2014 was instituted in the court of learned J.M.F.C., Barbil-, who in turn, vide order dated 04.12.2014, took cognizance of offence under Section 27(3) (b) and (c) of the Orissa Forest Act, 1972 and issued non-bailable warrant against the accused person showing absconded. Hence this application. 3. Mr. S.P. Sarangi, learned counsel for the petitioner argued with vehemence and contended that lease has been granted in favour of Joda West Iron Ore and Manganese Mine of M/s. Tata Steel Limited in which the petitioner joined as a Manager on 16.08.2013. The illegal period of mining, as revealed from the prosecution report, covers for the period from 17.01.1983 to 10.08.2007 during which period the petitioner was not in employment. In the FIR lodged wherein the name of the petitioner has been shown as accused and father's name of the petitioner has been shown as "Joda West Manganese Mines of Tata Steel Limited", which is evident at page-53 of the application, and more, particularly the company has not been made as a party. Therefore, the proceeding against the officer, namely, the present petitioner is not maintainable. Therefore, the proceeding against the officer, namely, the present petitioner is not maintainable. It is contended that if there was no vicarious liability, in that case, the offence alleged against the petitioner cannot be attracted. Therefore, taking cognizance against the present petitioner by the learned JMFC on 04.12.2014 was an outcome of non-application of mind, particularly when there was no allegation against the petitioner. It is further contended that as per the provisions contained under Section 27(3)(b) and (c) "any person" violates, action should have been taken, but as the company against whom the allegations have been made having not been made party to the proceeding, the proceeding so initiated against the petitioner cannot sustain in the eye of law. To substantiate his contention, learned counsel for the petitioner has relied upon the judgments of the apex Court as well as of this High Court in the cases of S.K. Alagh v. State of Uttar Pradesh, (2008) 5 SCC 662 ; Sharad Kumar Sanghi v. Sangita Rane, (2015) 12 SCC 781 ; Odisha Mining Corporation Ltd. V. State of Odisha, 2019 (II) OLR 623 and Hari Charan Gupta v. State of Orisssa, WPCRL No. 1215 of 2011 disposed of on 31.01.2012. 4. Per contra, Mr. B. Senapati, learned Addl. Government Advocate contended that a prima facie case is made out against the petitioner for commission of offence under Section 27(3) (b) and (c) of the Forest Act, 1972. Before taking cognizance, notice was issued to the petitioner calling upon him to give reply and, as such, on submission of such reply since a case under Section 27(3) (b) and (c) of the Forest Act, 1972 was made out, to afford further opportunity, another notice was issued to the petitioner on 04.11.2014, to which the petitioner did not reply, and thereby it can be safely presumed that the petitioner is indulged in illegal mining which violates the provisions contained under Section 27(3) (b) and (c) of the Forest Act. Therefore, investigation was carried on and complaint was lodged by the Forest Range Officer, which was treated as FIR and accordingly cognizance was taken by the Magistrate on 04.12.2014. As such, investigation, in the matter has not yet been concluded and the same is still continuing. Therefore, investigation was carried on and complaint was lodged by the Forest Range Officer, which was treated as FIR and accordingly cognizance was taken by the Magistrate on 04.12.2014. As such, investigation, in the matter has not yet been concluded and the same is still continuing. Therefore, the Magistrate is well justified in taking cognizance against the petitioner for violation of the provisions contained under section 27(3) (b) and (c) of the Forest Act. It is contended that whatever contention raised by learned counsel for the petitioner, being subject matter of trial, this Court should not interfere with the same at this stage of cognizance and this Court should allow the court below to proceed with the matter by vacating the interim order passed on 11.05.2016. 5. This Court heard Mr. S.P. Sarangi, learned counsel for the petitioner; and Mr. B. Senapati, learned Addl. Government Advocate and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this application is being disposed of finally at the stage of admission. 6. For just and proper adjudication of the case, the relevant provisions contained in Section 27(3) are quoted below:- "27. Offences - (1) The person who XXX XXX XXX (3) Any person sets fire to a reserved forest or who in a reserved forest- xxx xxx xxx (b) quarries stone, burns lime or charcoal or collects, subjects to manufacturing process or removes any forest produce; (c) clears or breaks up any land for cultivation or for any other purpose, or cultivates or attempts to cultivate any land in any manner or puts up any sheds or other structure; or xxx xxx xxx shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and with fine which may extend to ten thousand rupees." 7. On perusal of the aforesaid provisions, it is made clear that any person who in a reserved forest quarries stone or removes any forest produce, clears or breaks up any land any other purpose, shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and with fine which may extend to ten thousand rupees. Admittedly, the company, i.e., Joda West Iron Ore and Manganese of Tata Steel Limited undertaken the mining operation in accordance with the terms and condition of mining lease deed and whatever mineral produced and dispatched from the leasehold area was in accordance with the permission/permit/orders issued by the competent authority/courts and the company has also paid royalty, taxes and other statutory dues in respect of the said mineral. May be the company may come within the fold of "any person" as provided under section 27(3)(b) and (c) of the Act itself, but the petitioner was appointed as Manager on 16.08.2013 and he was not an officer during the period in which allegations have been made for illegal mining, i.e., 17.01.1983 to 10.08.2007, more particularly there was no specific role attributed in the entire complaint against the petitioner alleging contravention of any provisions of law. As such, the complaint does not indicate any role played by the petitioner in the alleged commission of offence either in his individual capacity or any official capacity. But fact remains, there was allegation of contravention by the company, i.e. user agency. It is specifically contended that the company has extracted minerals without any forest clearance during the periods from 17.01.1983 to 17.07.2005, 18.01.2006 to 22.01.2006, and 23.07.2006 to 10.08.2007 within Joda West Iron Ore and Manganese of Tata Steel Limited for which mining lease was granted to the company. The company was engaged in the business of mining through certain mining lease granted by the State Government of Odisha and once such mining lease has been granted and operation was undertaken in contravention thereof, as alleged, may be against the company not against the petitioner individually and more so the offence alleged to be committed relates to the period from 1983 to 2007. Therefore, without giving any explanation for delay, the allegation made against the petitioner cannot sustain, as the delay defeats the present complaint particularly when there was no provision in the Act or Rules itself stipulating any vicarious liability on the petitioner for the alleged violation by the company. 8. In Sabitha Ramamurthy v. R.B.S. Channabasabaradhya, (2006) 10 SCC 581 , which is case under negotiable Instruments Act, 1981, the factual matrix of the said case is that two complaint petitions were filed by the respondent therein describing appellants therein as accused 6 and 8. 8. In Sabitha Ramamurthy v. R.B.S. Channabasabaradhya, (2006) 10 SCC 581 , which is case under negotiable Instruments Act, 1981, the factual matrix of the said case is that two complaint petitions were filed by the respondent therein describing appellants therein as accused 6 and 8. In the said complaint petitions it was stated that the company, which had been dealing with imparting of computer education in rural areas, borrowed a sum of Rs. 2,25,000 from the respondent on an interest of 24% per annum. Towards payment of the said loan the accused had issued two cheques allegedly on behalf of the company on 23.06.2001 and 30.06.2001 for a sum of Rs. 1,24,406/- each, in favour of the respondent, which upon being presented were dishonored, as the company did not have sufficient funds. The appellants were not the Directors of the said company at the material time. It was submitted by the complainant that the accused persons failed to clear the liability. It was further submitted that the accused, being the company, all the Directors were responsible for the clearance of liability under Section 141 of the Negotiable Instruments Act and that the acts and deeds of the accused persons were punishable under Section 138 of the Negotiable Instruments Act. Process were directed to be issued on the said statement for alleged commission of an offence under Section 138 of the Negotiable Instruments Act. The appellants filed an application under Section 482 Cr.P.C. praying for quashing of the process issued against them in the said proceeding and the High Court dismissed the said application. But, the apex Court allowed the said appeal and, while allowing the appeal, held as follows:- "A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefore. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefore. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance with the statutory requirements would be insisted upon. Not only the averments made in the complaint petitions do not meet the said statutory requirements, the sworn statement of the witness made by the son of the respondent herein does not contain any statement that the appellants were in charge of the business of the company. In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist upon strict compliance with the statutory requirement." 9. In S.K. Alagh mentioned supra, taking into consideration the law laid down in Sabitha Ramamurthy (supra), the apex Court in paragraph-19 held as follows:- "19. As admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If an when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicarious liable for any offence committed by the Company itself." (Emphasis supplied) 10. In Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475 , the apex Court held as follows:- "The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter, the Managing Director and the Directors of the Company should not have been summoned only because some allegations were against the company." (Emphasis supplied) In Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 669, the apex Court held as follows:- "The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exits in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability" Taking into consideration the law laid down in Keki Hormusji Gharda and Maksud Saiyed mentioned supra, this Court in Hari Charan Gupta (supra) held as follows: "In the Orissa Forest Act, there is no provision of fixing vicarious liability. So the petitioner cannot be vicariously liable for the offence under Section 27 (3) (a) and (c) of the Orissa Forest Act". By holding so, this Court allowed the WPCRL and quashed the criminal proceeding initiated against the petitioner therein in 2 (c) CC No. 11 of 2011 pending in the court of learned JMFC, Barbil. 11. Applying the above principles and law laid down by the apex Court, as well as of this High Court to the present case, since there is allegation against the company and, as such, not against the petitioner, in absence of any express provisions creating vicarious liability, no prosecution could have been lodged against the petitioner particularly when the vicarious liability of an offence has not been provided in the Forest offence. In absence of allegations of conspiracy in the case, which is simply futile to proceed with the criminal proceeding against the petitioner on a principle of vicarious liability when the concept does not exist in the Orissa Forest Act and more particularly the period for which the offence alleged to have been committed, the petitioner was not in employment. 12. In Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 , while considering the provisions contained in Negotiable Instruments Act with regard to criminal liability for dishonor of cheque drawn by company, the apex Court held that extent of deeming fiction in Section 141 is mandatory requirement of impleading company as one of the accused. Therefore, prosecution against, without arraigning company as accused, not maintainable. 13. In Sharad Kumar Sanghi (supra), the apex Court held that initiation of criminal proceedings against the Managing Director or any officer of company, the prerequisite was that, where company had not been arrayed as a party to the complaint, criminal proceedings initiated against the Managing Director were not maintainable and more so where there was no specific allegation against him and even the allegations made were of vague nature. Further, the apex Court taking into consideration the law laid down in Aneeta Hada (supra) in paragraph-11 held as follows:- "11. In the case at hand as the complainant's initial statement would reflect, the allegations are against the company, the company has not been made a party and, therefore, the allegations are restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations against the company. There is no specific allegation against the managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes." (Emphasis supplied) Similar view has also been taken by this Court in Odisha Mining Corporation Ltd. mentioned supra. 14. In view of such position, it appears that the complaint lodged against the petitioner does not disclose any offence against him. 14. In view of such position, it appears that the complaint lodged against the petitioner does not disclose any offence against him. Therefore, in view of the law laid down by the apex court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that a prosecution which is based on complaint and does not disclose any offence or is absurd or prohibited by legal bar or mala fide, is bound to be quashed and set aside. 15. In view of the law discussed above, this Court is of the considered opinion that the criminal proceeding so initiated against the petitioner in 2(b) CC No. 20 of 2014 pending in the court of learned J.M.F.C., Barbil is liable to be quashed and the same is hereby quashed. Consequentially, the order dated 04.12.2014 passed by the learned J.M.F.C., Barbil taking cognizance of the offence under Section 27 (3) (b) and (c) of the Orissa Forest Act, 1972 is also quashed. 16. The CRLMP is accordingly allowed. No order to costs.