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2021 DIGILAW 28 (MP)

Ashwani Kumar v. State of MP

2021-01-13

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This Criminal Revision under Section 397 of the CrPC has been filed against the order dated 11/11/2020 passed by JMFC, Dabra, District Gwalior, by which the application filed by the applicant under Section 451/457 of CrPC has been rejected. 2. It is the case of the applicant that he is the owner of Ashok Leyland Dumper having registration No MP 07 GA 3687. A FIR has been registered at Police Station Billaua, District Gwalior in Crime No. 137 of 2020 for offence under Section 379 of IPC and under Section 21(4) of Mines and Minerals (Development and Regulation) Act, 1957 on the allegation that on receiving an information, the dumper was searched and it was found that 500 ft. sand was loaded in the dumper with 6 inch layer of dust/black-soil on the top of illegally excavated sand. It is submitted that the Mining Department has already compounded the illegal transportation of sand and a penalty of Rs. 89,375/- has already been deposited. It is further submitted that the applicant had executed a power of attorney in favour of the driver of dumper, namely, Anil Parihar giving full authority to operate the dumper and, thus, if any illegal act has been done by the holder of power attorney, then the applicant cannot be held vicariously liable. Accordingly, it is prayed that the dumper bearing registration No. MP07GA3687 may be released. The counsel for the applicant, in support of his contention, has also relied upon the judgment passed by the Supreme Court in the case of Sundarbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283. 3. Per contra, it is submitted by the counsel for the State that mere deposit of penalty would not absolve the applicant from his criminal liability. Further, the dumper was being used for illegal transportation of illegally excavated sand and the guilty mind of the applicant can be seen from the fact that the illegally excavated sand of 500 feet was hidden under the layer of 6 inch of black-soil in order to project that the dumper is carrying black soil and not sand. 4. Heard the learned counsel for the parties. 5. 4. Heard the learned counsel for the parties. 5. So far as the question of deposit of penalty is concerned, the same has been considered by the Supreme Court in the case of Jayant vs. The State of Madhya Pradesh by order dated 3rd December, 2020 passed in Criminal Appeal No. 824825 of 2020 (Arising from SLP (Criminal) Nos. 26402611 of 2020) and it has been held as under:- "13. 26402611 of 2020) and it has been held as under:- "13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under: (i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted; ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder; iii) for commission of the offence under the 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 and Rules made thereunder; and iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned Incharge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate. v) in a case where the violator is permitted to compound the offences on payment of penalty as per subsection 1 of Section 23A, considering subsection 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under subsection 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further." 6. This Court in the case of Banti vs. State of MP by order dated 05/10/2020 passed in MCRC No. 37312 of 2020 has held as under :- "So far as the recovery of penalty and royalty is concerned, at the most, it can be said that it is for the satisfaction of the civil liability. There is no bar in the Rules, 2019 to resort to the provisions of Penal Code or any other Statute. 7. In the present case, a huge quantity of illegally excavated sand with a layer of 6 inch of black soil above the sand, was being transported in the dumper in question so that no one may notice that the dumper is transporting illegally excavated sand. 8. So far as the question of execution of power of attorney by the applicant in favour of the driver is concerned, it is sufficient to hold that the power of attorney executed in favour of the driver would not absolve the applicant from the criminal act. In the power of attorney, it is clearly mentioned that the driver would be liable to maintain, operate as well as to pay taxes, obtain fitness certificate etc. and in case of any accident or claim, then he shall have the authority to take the dumper on Supurdagi and in case of accident, the holder of power attorney shall be entitled to appoint lawyer, file claim, written statement, affidavit, revision, withdrawal, compromise, etc. However, from the plain reading of this power of attorney, it cannot be inferred that the applicant had given authority to the power of attorney holder to commit any criminal act also. There is nothing in the power of attorney that the holder of power of attorney alone would be liable for any criminal activity. However, from the plain reading of this power of attorney, it cannot be inferred that the applicant had given authority to the power of attorney holder to commit any criminal act also. There is nothing in the power of attorney that the holder of power of attorney alone would be liable for any criminal activity. Further, the dumper was seized on 18/08/2020, whereas the power of attorney has been executed on 01/11/2020 i. e. much after seizure of the dumper. Accordingly, the power of attorney so relied upon by the applicant has no application in the facts and circumstances of the case. 9. So far as the release of dumper on Supurdagi is concerned, as already held by this Court that since the dumper was involved in the transportation of illegally excavated sand and, therefore, it is very important piece of evidence which can be destroyed by the applicant in case if the vehicle is released. 10. Under these circumstances, this Court is of the considered opinion that the JMFC, Dabra, District Gwalior did not commit any mistake in rejecting the application filed under Section 451/457 of CrPC. 11. Accordingly, this revision fails and is hereby dismissed.