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2021 DIGILAW 474 (GUJ)

Devayat Ramsibhai Vala v. State Of Gujarat

2021-06-24

GITA GOPI

body2021
ORDER : 1. The petitioner-original accused has filed this petition seeking following reliefs: “15(A) This Honourable Court may be pleased to quash the FIR being First Information Report vide Crime Register No. I – 33/2019 lodged with Prabhas Patan Police Station, in the interest of justice. (B) This Honourable Court may be pleased to grant interim relief by staying further proceedings in respect of First Information Report vide Crime Register No. I – 33/2019 lodged with Prabhas Patan Police Station, in the interest of justice. (C) This Honourable Court may be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice and equity.” 2. Heard Mr. M.T.M.Hakim, learned advocate for the applicant and Ms. Monali Bhatt, learned APP for the respondent-State. 2.1 It is stated by learned advocate Mr.Hakim that allegations are of lime stone minerals being loaded in five trucks from the mining lease situated at Village Januda which is in the name of R.J.Trivedi, where the applicant is working as a supervisor who had collected the password of the computer from the computer operator of Malundha Village and it is alleged by the prosecution that fake receipts and royalty pass of the closed mining lease of Malundha was prepared and the weighing of the minerals was also done in the name of said lease and it is alleged to have issued the receipt from the lease situated at Village Januda as well as from the lease situated at Shantipura, Village Malundha. 2.2 Learned advocate Mr. Hakim stated that the allegation of the police are of loading the lime stone mineral from a common place and creating the fake documents by applying the ID password of the lease, using the said fake document, as genuine and true document, eventhough knowing the same to be fake and concocted document, and by giving the same to the drivers, hatching of criminal conspiracy, and through the said bogus and fake royalty passes, made transition of the minerals by committed breach of trust and cheating. 2.3 Mr. 2.3 Mr. Hakim, learned advocate further submitted that there are two mining leases in the name of R.J.Trivedi; one is situated at Village Januda and another is situated at Village Malundha and the applicant is working as supervisor in both the mines and both the mines are situated in the same area which is situated in Junagadh and Gir Somnath Districts; that means in between the village the border of the Districts are intersected where adjoining there is one another mining lease. It is stated by learned advocate Mr. Hakim that, for better administration, R.J.Trivedi and Company has installed the weigh bridge at the site of mining lease situated at Shantipura, District Gir Somnath, whereas the said weigh bridge is common for all the three mining leases and the CCTV Footage system and computer system is also installed. The loaded vehicles of the three mines come to the weigh bridge and royalty pass also were issued from the said place. 2.4 It is stated by learned advocate Mr. Hakim that, in the present case, five trucks were loaded from the mining leases situated at Januda village, and due to bonafide mistake, the Royalty Pass was issued of the mining lease of Malundha Village. The said incident had occurred on 20.03.2019. Thereafter the applicant as well as the mines owner had given explanation of the bonafide mistake, and on the basis of the said request, the informant has addressed a letter to the Geologist, Gir Somnath, and it is contended that, no FIR ought to have been lodged. 2.5 Referring to the opinion of Geologist dated 26.03.2019 and 01.04.2019 of Gir Somnath and Junagadh Districts, learned advocate Mr. Hakim submits that M/s. R.J.Trivedi and Company is doing this mining business since 1976 and that his brother Sukhdev Jayantilal Trivedi had also been sanctioned mining lease for lime stone since 04.09.1964. 2.5 Referring to the opinion of Geologist dated 26.03.2019 and 01.04.2019 of Gir Somnath and Junagadh Districts, learned advocate Mr. Hakim submits that M/s. R.J.Trivedi and Company is doing this mining business since 1976 and that his brother Sukhdev Jayantilal Trivedi had also been sanctioned mining lease for lime stone since 04.09.1964. As per the report of Geologist, the query raised by the police in context of the allegations made in the FIR; has been replied by Geologist, Junagadh District, that in such a case of misuse of Royalty Pass, it would be a case of breach of condition of lease mining agreement, and in such a case when it is proved that the five trucks were loaded from the mines of Januda Village, and during the transportation, the Royalty Pass was used of Malundha mines, then, in that circumstances, the royalty pass cannot be accepted and for illegal transport of the mines, under the provisions of Rule 22 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, (for short “Rules 2017) read with Schedule III; fine of Rs.5,000/- per metric tonne can be imposed; and in accordance of the type of the vehicles specified in Schedule III could be recovered, and in a case, where the truck owner is ready to pay the fine, the vehicle could be made free after the payment of fine as per Rule 22. 2.6 Learned advocate Mr. Hakim has relied upon Rule 22 of the Rules 2017 which reads thus: “Rule 22 : Compounding of offences. Any offence punishable under these rules may, either before or after the institution of the prosecution, be compounded by the Authorised Officer on payment of an amount computed in the manner specified in Schedule III. When an offence is compounded: (a) no further proceedings shall be commenced against such person; (b) if any proceedings have already been commenced against such person, such proceedings shall not be further proceeded with; and (c) the accused person, if in custody, shall be discharged and the property seized shall, if it is not to be so retained, be released: Provided that the same offence shall not be compounded more than three times with respect to the same person or Carrier.” 2.7 Learned advocate Mr. Hakim referring to Rule 22 of the Rules 2017 submits that, if at all any offence is found punishable under this Rule, then prior to the institution of the prosecution it can be compounded by the authorised officer on payment of an amount computed in the manner specified in Schedule III. 2.8 Learned advocate Mr. Hakim relying upon Rule 22 submits that it is only the authorised officer under the Mines and Minerals (Development and Regulation) Act, 1957, (for short “the Act”) who is authorised to file any complaint which the said officer is entitled to compound the offence even prior to the institution of the prosecution, and in the case, if the offences were compounded, no further proceedings shall be continued against such persons. He further submits that the concerned Geologist has not found any case for complaint, and without any authority of law, an FIR has been lodged against the applicant by Prabhas Patan Police Station, District Gir Somnath. 3. Ms. Monali Bhatt, learned APP appearing on behalf of the respondent-State has submitted that, apart from the offence noted under Mines and Minerals (Development and Regulation) Act, 1957, the offences under Indian Penal Code are also found by the concerned officer, and therefore, some sections of Indian Penal Code has also been invoked against the applicant and thus there would not be any ground for quashing of the FIR. 4. The Police Inspector, Prabhas Patan Police Station, Gir Somnath, had sought opinion from the Geologist stating the facts of misuse of Royalty Pass and the concerned Geologist, Geology and Mining Department, has referred to the provisions of Rule 22 of Rules 2017, and has informed that, in such a case the fine can be recovered as per Schedule III. 5. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. 5. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised: (a) 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; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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; (c) 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; (d) 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; (e) 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; (f) 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; (g) 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.” 6. In view of the discussions made hereinabove, the criminality of the concerned person cannot be found since the act of misusing the Royalty Pass of another mines for transporting the mines from another lease could be compounded and it is absolute discretion of the concerned officer who is authorised under the Rules to compound such offence. It is also required to be noted that such type of offences are punishable under the Rules if at all the prosecution is instituted, then in that eventuality, the authorised officer is empowered to compound the offence. It is also required to be noted that, even prior to the institution of the prosecution, such offences can be compounded by way of payment of fine as provided in Schedule 3. Hence there is no reason to invoke the provisions of sections of Indian Penal Code where the absolute discretion is given to the authorised officer under Mines and Minerals (Development and Regulation) Act, 1957. The police complaint by way of FIR would lead to consequences which is not provided under the Mines and Minerals (Development and Regulation) Act, 1957, and under the Rules 2017. The case of the petitioner shall fall under category (f) of Bhajanlal’s case (supra), for exercising the power of quashing the impugned FIR under Section 482 of Code of Criminal Procedure. 7. For the foregoing reasons, the application is allowed. The impugned FIR being First Information Report vide Crime Register No. I – 33/2019 lodged with Prabhas Patan Police Station, Gir Somnath, is quashed and set aside. Rule is made absolute to the aforesaid extent.