Shaikh Yunus vs State Of Maharashtra
2013 Latest Caselaw 338 Bom

                                                  1                          Cri.Appln.5348.12.odt


                 IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD




                                                                               
                   CRIMINAL APPLICATION NO. 5348 OF 2012




                                                       
     1.     Shaikh Yunus S/o Shaikh Chand 
            Age : 30 years, Occ : Business, 

     2.     Ayesha W/o Yunus Shaikh 




                                                      
            Age : 31 years, Occ : Household, 

            Both R/o Patelnagar, Aurangabad
            Tq. Aurangabad, Dist. Aurangabad. 




                                         
                                                                            ..APPLICANTS
            -VERSUS- 
                      
     State of Maharashtra 
                     
                                                                          ..RESPONDENT
                            ...
     Advocate for Applicants : Mr. Shaikh Mazhar A. Jahagirdar 
     APP for Respondent : Mr. V.P. Kadam
                             ...
      


                                            CORAM : ABHAY M. THIPSAY, J.

Dated: December 13, 2013

JUDGMENT :-

The applicants are being prosecuted vide R.C.C. No. 360 of

2010 pending before the learned Judicial Magistrate, First Class,

Paithan, on the basis of a police report alleging that they have

committed an offence punishable under section 379 of the Indian

Penal Code (IPC) read with section 34 of IPC, as also the offences

2 Cri.Appln.5348.12.odt

punishable under section 21 of the Mines and Minerals

(Development and Regulation) Act, 1957.

By the present application, the applicants pray that by

exercising the inherent powers of this Court, the proceedings of the

said case be quashed.

2. The prosecution case is in brief as follows :-

That, on 26.07.2009 at about 5 p.m., near Shri

Saraswati Bhuwan Vidyalaya, Bidkin, one Keshav Venkatesh Netake,

Tahsildar, noticed that a motor truck bearing registration No. MH-20

AT-3167 was transporting around three brass of sand. The driver of

the said vehicle had no 'royalty receipt' (transport permit) to

transport sand. On questioning the driver, it was revealed that the

truck was owned by the applicants, and that, the sand found in the

truck had been excavated illegally from the river bed of Godavari

and was being transported illegally. As per the oral directions given

by Shri Keshav Venkatesh Netake, the Tahsildar, the vehicle was

detained at the police station, Bidkin. Thereafter, as per the

directions of the Sub-Divisional Officer, Aurangabad, to register a

3 Cri.Appln.5348.12.odt

crime against the owners and driver of the said motor truck, one

Bhimashankar Gopalrao Tope, Circle Officer lodged report with

Bidkin Police Station, on 21.07.2010 alleging commission of the

offences punishable under section 21(1),(2), (3) and (4) of the

Mines and Minerals (Development and Regulation) Act, 1957

(hereinafter referred to as "the said Act") and section 379 of IPC.

After investigation, a charge-sheet came to be filed against the

applicants.

3. Though a number of contentions including that there is

no prima facie case of the alleged offences against the applicants

have been raised, the main contention raised on behalf of the

applicants is that their prosecution is not maintainable in view of the

provisions of section 22 of the said Act. It is submitted that the

cognizance of the offences under the said Act could be taken only on

a complaint made by a person duly authorized in that behalf by the

Central Government or the State Government. It is submitted that

since the applicants are not being prosecuted on the basis of any

complaint lodged by any such authorized person, the cognizance of

the alleged offences under the said Act could not have been taken.

It is also submitted that the accusation of the applicants having

4 Cri.Appln.5348.12.odt

committed an offence punishable under section 379 of IPC is

unsustainable. It is submitted that there is no material to support

the allegations of theft but, what is emphatically submitted is that in

any case, when the alleged acts are covered by a special provision

i.e. the provisions of the said Act, the question of application of

general provisions under IPC, was ruled out.

4. Initially, one Rajiv Shinde, Tahsildar, Paithan filed an

affidavit - in - reply, opposing the present application. However, in

the course of hearing, since there was an emphasis on the

prosecution being not maintainable in view of the provisions of section

22 of the said Act and since the learned Additional Public Prosecutor

was not able to throw any light on who was the person 'authorized

in that behalf', the District Collector was summoned; who after

appearing before the Court, sought time and expressed his desire to

file an additional affidavit in the matter. Such permission was

granted and consequently, the District Collector has filed an

additional affidavit in reply to the application.

5. Section 22 of the said Act reads as under :-

"22. Cognizance of offences .- No court

5 Cri.Appln.5348.12.odt

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."

6. A bare reading of the provision leaves no manner of

doubt that it is a mandatory provision. A bar has been imposed on

the power of the Court to take cognizance of any offence punishable

under the said Act or the Rules made thereunder, except upon a

complaint in writing made by a person authorized in that behalf by the

Central Government or the State Government. Thus, it is clear that

before a Court takes cognizance of an offence punishable under the

said Act, the following requirements must be met :-

     (i)            There should be a complaint; 





     (ii)           Such complaint must be in writing; 
     (iii)          it   should   have   been   made   by   a   person 

authorized in that behalf - i.e. authorized

to lodge a complaint - by the Central Government or the State Government.

7. Since the term 'complaint', as used in this section, has

not been defined under the said Act, one may refer to the definition

6 Cri.Appln.5348.12.odt

of the term 'complaint' given in section 2(d) of the Code of Criminal

Procedure. It is only an allegation made to a Magistrate that can be

termed as a 'complaint' and from this category, a police report is

specifically excluded. The present prosecution is on the basis of a

police report and not a complaint. However, even if a wider

interpretation is given to the term 'complaint', as appearing in

section 22, (reproduced above) - just for the sake of arguments - and

it is interpreted in a manner so as to include a report made to the

police, still, there is no escape from the fact that such report would

be required to be lodged by 'a person duly authorized in that behalf

by the Central Government or the State Government.' Thus the least

that was expected, was that the first information report was lodged

by a person duly authorized in that behalf in accordance with section

22. However, it is nobody's case that a Circle Officer - or even the

Tahsildar for that matter - is a person authorized under the said

provision.

8. Interestingly, as to the query specifically putforth by this

Court, viz :- 'who is the person authorized in that behalf,' as

contemplated under section 22 of the said Act, there is no reply at

all from the State. Even the affidavit of the District Collector is

7 Cri.Appln.5348.12.odt

totally silent on this aspect, though it was made clear that the

affidavit was required to be filed basically for explaining this aspect

of the matter. A Notification bearing No. G.S.R. 1201 dated 15th May,

1969 issued by the Central Government has been brought to my

notice but, no such notification issued by the State Government has

been brought to my notice. Though no categorical statement that no

such notification has been issued at all has been made before me, it

was indicated to me that the Additional Public Prosecutor or the

District Collector 'could not find out' any Government

Resolution/Notification and/or Order authorizing any person to file

a complaint in respect of an offence punishable under the said Act.

9. The Notification issued by the Central Government

reads as under:-

"G.S.R. 1201- In pursuance of the powers conferred by section 22 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957) and in

supersession of the notification of the Government of India int he late Ministry of Mines and Fuel No. MII-185(4)/62 dated 18th September, 1962, the Central Government hereby authorises -

(a) the Controller, Indian Bureau of Mines;

                                          8                          Cri.Appln.5348.12.odt


                    (b)   the Controller of Mines, Indian Bureau 
                    of Mines; 




                                                                      
                    (c)   the   Regional   Controller   of   Mines, 
                    Indian Bureau of Mines and 




                                              

(d) the Mineral Economist, Indian Bureau of Mines to prefer complaints in writing in respect of any offence punishable under the

said Act or any rules made thereunder."

10. If no Notification authorizing any person has been

issued so far by the State Government, it is high time that the

concerned authorities of the State shall look into the matter at

least now and do the needful. Otherwise, there is a danger that all

prosecutions instituted in such matters would fail on that count itself

and the offenders would go unpunished.

11. The fact, however, remains that since the prosecution of

the applicants with respect to the offences punishable under the said

Act is in breach of the mandatory provisions of section 22 of the said

Act, the same cannot be permitted to be continued.

12. So far as the allegation of an offence punishable under

section 379 of IPC is concerned, apart from the fact that there is no

material in the entire charge-sheet to justify the accusation of theft,

9 Cri.Appln.5348.12.odt

there is substance in the contention advanced by the learned counsel

for the applicants that when special provisions have been enacted to

deal with the acts in questions, the provisions of general law cannot

be invoked for dealing the offenders under the general provisions.

Here, the allegation against the applicants is that they had illegally

excavated the sand and were transporting the same. These acts are

squarely covered by the offences made punishable under the said

Act. A special machinery for detection, investigation and prosecution

of the offenders committing the said offences and a special

procedure for prosecuting them has been created by the said Act.

Following the said special procedure cannot be avoided by applying

the general law to the same acts. When a special Act dealing with

certain types of the offences has been made, it would not be

permissible to invoke the provisions of the general law just to

circumvent the provisions of the Special Statute. Thus the

prosecution of the applicants under the provisions of section 379 of

IPC read with section 34 of IPC is also bad-in-law.

13. There is also an interesting aspect of the matter. To

support the accusation of theft one has to accept the theory that the

'sand excavated was in possession of the State which is certainly

10 Cri.Appln.5348.12.odt

doubtful. It would mean that all things, which are not in the

possession of anyone are deemed to be in possession of the State,

and that, for taking them away, the consent or permission of the

State is necessary. I find it difficult to accept this theory, but since

discussion on this is not necessary for a proper decision, I leave it at

that.

14. The prosecution of the applicants is, clearly, contrary to

law. The inherent powers of this Court must be exercised to quash

such a prosecution.

15. The application is allowed in terms of prayer clause `B'.

Sd/-

( ABHAY M. THIPSAY, J. ) *** sga/-