Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1210 (JHR)

Rakesh Kumar v. State of Jharkhand

2023-10-04

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Utkarsh Krishna, learned counsel for the petitioners and Mr. Binit Chandra, learned counsel for the State. 2. This petition has been filed for quashing the entire criminal proceeding arising out of Govindpur (Dhanbad) P.S. Case No. 213 of 2022 dated 16.06.2022 registered under sections 379, 411, 414, 34 of the Indian Penal code and section 4 & 21 of the Mines and Minerals (Development and Regulation) Act, 1957, Rule 7, 9, 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, pending in the Court of learned Judicial Magistrate, Ist Class, Dhanbad. 3. The F.I.R. has been lodged alleging therein that the informant namely Mr. Mihir Shalkar presently posted as District Mining Officer, Dhanbad has come to the Police Station and submitted the seizure list as well as typed complaint for which the F.I.R. has been lodged in the complaint. It is stated that the District Mining Officer, has seized 2103.50 Ton of raw coal upon the information received that Shivam Coke Pvt. Ltd., the manufacture of hard coke was receiving illegal/theft coal, since the said coal is being sold without using transport challan. On getting such information, the informant District Mining Officer along with other government authorities and other police personnel inspected the industry/unit of the petitioners on 16.06.2022 at around 12 O'clock in the noon. During inspection, it was found from the Stock Register that the total available coal which should be available with the factory is 2037.691 Ton. Measurement was carried out and after the measurement, it was found that the total stock of raw coal in the premises of the industry is 2103.50 Ton, and the said stock does not tally with the statement in the stock register. It has further been alleged that the Purchase Register of the company was produced before the Purchase Inquiry Committee, and said committee asked for e-transport challan for transportation of the aforesaid quantity of coal. Upon such demand, the transport challan for the month of April, May June was produced and then it was found further that the entry made in the Purchase Register further transpires that some of the coal found in the stock has not been validly purchased, since the said purchase was made in absence of etransport challan which resulted into loss to the government revenue. During inquiry, it has further been found that the minerals are being purchased through multiple e-way bill which is not in consonance with the Provisions of Jharkhand Minerals (Prevention of Illegal Mining. Transportation and Storage) Rules, 2017 and therefore the said stock of coal appears to be illegal. It has further been alleged that the coal which has been illegally received was shown in the monthly register of the company, showing recovered quantity but said entry is not in accordance with the Rule. Besides that the Invoice of the Company had also shown some tax invoices and e-way bill but the aforesaid e-way bill was also examined and it was found that the number of the vehicle written in the e-way bill was not issued to the said vehicle during the period in question, and therefore it has been prima facie found that Shivam Hard Coke and its owners are continuously receiving illegal coal, as a result of which the government has suffered its revenue. During inquiry, the Inquiry Committee demanded weigh bridge purchase. The weigh bridge showing the purchase of coal during the financial year 2022-23. The employees present there only could produce e-way bill for the month of May and June, but in the said e-way bill, the weighted quantity of coal was not found and therefore the aforesaid e-way bill was also suspected. Besides that when the enquiry committee asked for the footage of CCTV then they were told that CCTV Camera was not installed in the Hard Coke Factory although i.e. in violation of direction of the Deputy Commissioner, Dhanbad. From the aforesaid facts, it was transpired that CCTV Footage was not installed intentionally in order to hide illegal transportation of coal. Accordingly, the inquiry committee and its member for discussing the entire issue has come to a finding that the said quantity of coal comes to the extent of 2103.50 Ton which was seized, has been handed over to the accountant of the company for its security and the aforesaid person named has taken the responsibility of the coal with the undertaking that the aforesaid coal shall neither be sold nor manipulated and as and when the competent court will demand such seized article that shall be produced as and when require. It has finally been concluded that the owners of Shivam Coke Pvt. Ltd were using the coal in an illegal manner, and therefore it is in violation of section 4 & 2 of the Mines and Minerals (Development and Regulation) Act, 1947, Rule 7,9,13 of Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, Therefore, based on the aforesaid information, the present F.I.R. has been lodged. 4. Mr. Utkarsh Krishna, learned counsel for the petitioners submits that the petitioners have purchased imported coal for which no e-transport challan generated under JIMMS portal and only requirement is e-way bill which has been produced which is a sufficient document to show that the coal has been purchased in accordance with law. He submits that the petitioners’ industry is a Hard Coke Manufacturing Industry and has been registered under Small Scale Industries. He further submits that for release of the coal in question petitioners filed a petition before the learned Judicial Magistrate, Ist Class, Dhanbad and by order dated 14.03.2023 the coal has been directed to be released in favour of the petitioners considering that the Investigating Officer has submitted report that G.S.T and e-way bills were genuine but not found Form-D. He submits that in this background case under the I.P.C. sections are not made out. He further submits that considering this aspect of the matter the petitioners have been provided the privilege of anticipatory bail. He further submits that with regard to Mines and Minerals Act, only complaint can be maintained by way of filing before the learned Magistrate. On these background he submits that continuation of proceeding is abuse of process of law. He relied in the case of “ State of Haryana and others V. Bhajan Lal and others” 1992 Supp. (1) SCC 335 wherein para 102 it has been held as under:- “102. On these background he submits that continuation of proceeding is abuse of process of law. He relied in the case of “ State of Haryana and others V. Bhajan Lal and others” 1992 Supp. (1) SCC 335 wherein para 102 it has been held as under:- “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. (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. (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.” 5. Relying on the said judgment he submits that the case of the petitioners is coming under the guideline no. 1 and 3 of para 102 of the said judgment. He submits that once I.P.C. sections are not made out in view of section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 only complaint can be maintained and to buttress this argument he relied in the case of “Calcutta Jaipour Paribahan Private Limited Vs. State of Jharkhand and Others” (2009) SCC Online Jhar 552 and in the case of “Pancham Singh Vs. State of Jharkhand and Another” (2012) 2 SCC Online Jhar 1643. On these grounds he submits that entire criminal proceeding may kindly be quashed. 6. On the other hand, Mr. Binit Chandra, learned counsel for the respondent-State submits that although coal was released in favour of the petitioners however, Form-D was not found there. He submits that in view of that sections of MMDR Act is attracted. He submits that there is no bar in filing the F.I.R. and the F.I.R. has been rightly registered. 7. In view of above submissions of the learned counsel for the parties, the Court has gone through the contents of F.I.R. and finds that admittedly the case has been lodged for transportation of coal in question. He submits that there is no bar in filing the F.I.R. and the F.I.R. has been rightly registered. 7. In view of above submissions of the learned counsel for the parties, the Court has gone through the contents of F.I.R. and finds that admittedly the case has been lodged for transportation of coal in question. The said coal has been released by the learned court by order dated 14.03.2023 considering the report of Investigation Investigating Officer wherein he has reported that GST and e-way bills were found to be genuine and considering this aspect of the matter the petitioners have been provided benefit of anticipatory bail. Thus, it appears that I.P.C. sections are not attracted and if the I.P.C. sections are not attracted the case of the petitioners is fully covered in view of judgment of the Hon’ble Supreme Court in the case of Bhajan Lal (supra). 8. Further coming to the MMDR Act, it appears that section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 speaks of cognizance of offence which reads as under:- “22. Cognizance of offence:- No Court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” 9. Looking into the aforesaid provisions such as Act and Rule which provides complaint in writing made by a person authorized. The word ‘complaint’ has been defined under clause (d) of section 2 of Cr.P.C which reads as under :- “2 (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 10. Thus, if a complaint is being filed it must be made to the Magistrate and it must be with a view to his taking action under the Code. It must contain an allegation that some person whether known or unknown has committed an offence. It must not be report of the police officer. Admittedly in the case in hand complaint is not filed before the learned Magistrate in view of that it cannot be said that the said F.I.R. is complaint in view of clause 2 (d) of Cr.P.C. 11. It must not be report of the police officer. Admittedly in the case in hand complaint is not filed before the learned Magistrate in view of that it cannot be said that the said F.I.R. is complaint in view of clause 2 (d) of Cr.P.C. 11. In view of above facts, reasons and analysis, the entire criminal proceeding arising out of Govindpur (Dhanbad) P.S. Case No. 213 of 2022 dated 16.06.2022 pending in the Court of learned Judicial Magistrate, Ist Class, Dhanbad, is quashed. 12. This petition stands allowed and disposed of. Pending I.A. if any, stands disposed of. Interim order is vacated.