Calcutta High Court (Appellete Side)

Kanai Nayek vs The State Of West Bengal & Another on 3 September, 2024

                IN THE HIGH COURT AT CALCUTTA
             CRIMINAL REVISIONAL JURISDICTION
                            Appellate Side


Present:

The Hon'ble Justice Ajay Kumar Gupta


                          C.R.R. 2775 of 2012


                             Kanai Nayek
                                Versus
                The State of West Bengal & Another



For the Petitioner    :       Mr. Somesh Panja, Adv.




For the State         :       Md. Anwar Hossain, Adv.


Heard on              :       26.06.2024



Judgment on           :       03.09.2024




Ajay Kumar Gupta, J:

1.         By filing this Criminal Revisional application, petitioner

herein has prayed for quashing of the proceeding being Arambag P.S.

Case No. 90/2007 dated 04.05.2007 under Section 22 of the Mines
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and Minerals (Development and Regulation) Act, 1957 read with

Sections 379/411 of the Indian Penal Code corresponding to G.R.

190/2007 pending before the Court of the Learned Judicial

Magistrate, Additional Court, Arambag, District- Hooghly and setting

aside the order dated 20.02.2010 passed by the learned Judicial

Magistrate, 1st Class, Additional Court thereby framed charge under

Sections 379/411 of IPC against the accused/petitioner herein.


2.      The essential facts of the instant case are relevant for the

purpose of disposal of this case as under:


2a.     On 4th May, 2007, de-facto complainant/opposite party no. 2

lodged a complaint against the petitioner alleging therein, inter alia,

that the accused person extracted and removed a considerable

amount of Brick Earth which is a Mineral as defined in Clause (c) of

Section 3 of the Mines and Minerals (Development and Regulation)

Act, 1957 without holding any Quarry Permit as required under the

Provision of Section 27 in Schedule IV of West Bengal Rules, 2002

and also in contravention of the provision of Rule 4 of the Mines and

Minerals (Development and Regulation) Act, 1957 as amended in

2002 and the Provision of Rules 4 (1) of the said Rules and Rule 3 of

the West Bengal in the year 2006-2007. In spite of the West Bengal

Minerals Prevention of Illegal Mining, Transportation and Storage
                                 3




Rules, 2002, the accused person has still been extracting and

removing Brick Earth from the plots of Mouza - Raghunathpur, J.L.

No. 50, P.S. - Arambagh. Consequently, the accused person, thus,

committed theft of the minor minerals and thereby he is liable to be

prosecuted under Rule 33 of the West Bengal Minor Minerals Rules,

2002 read with Section 21 and its related sub-sections of Mines and

Minerals     (Development     and    Regulation)    Act,   1957.    Such

unauthorised and illegal act of the accused person is a cognizable

offence under Rule 33 and its related sub-sections and Section 22 of

Mines and Minerals (Development and Regulation) Act, 1957 read

with Sections 379/411 of the Indian Penal Code resulting in

registration of Arambag P.S. Case No. 90/2007 dated 04.05.2007

Sections 379/411 of the Indian Penal Code. Subsequently, after

conclusion of investigation, the Investigating Officer of this case has

submitted a charge sheet being C.S. No. 102 dated 20.05.2008 under

Section 22 of Mines and Minerals (Development and Regulation) Act,

1957 read with Sections 379/411 of the Indian Penal Code against

the petitioner though the case of the petitioner is different.


2b.        The contention of the petitioner is that the present petitioner

is the proprietor of M/s. Sun Brick Field, situated within the village

Raghunathpur, P.O. & P.S. Arambagh, District Hooghly, who had
                                 4




filed and moved a writ petition before the Hon'ble High Court at

Calcutta along with other brick field owners being W.P. No. 7082 (W)

of 2009 challenging the illegal claim of Royalty from them from the

end of the said B.L. & L.R.O. On 21.04.2009, after hearing the

learned counsels for the parties, His Lordship the then Hon'ble

Justice Kalyan Jyoti Sengupta was pleased to pass an order, inter

alia, directing filing of affidavit upon both the parties within a

stipulated period and also passed the interim order to the following

effect: -


            "In the meantime, there will be an interim order to the
            effect that the petitioner will be entitled to extract
            earth, upon payment of royalty at the rate of Rs. 25/-
            per cubic feet. Such payment however, shall be
            without prejudice to the rights and contentions of the
            parties and will abide by the result of the writ
            petition, upon payment of royalty extraction of earth
            will be allowed to be done."

2c.         The said writ petition was moved with contentions that brick

earth was cutting by the petitioner as such his prayer was for quarry

permit and for acceptance of royalty for the said purpose from him, of

course at the accepted rate of royalty as decided by this Hon'ble

Court in other so many similar matters moved earlier before the

Hon'ble Court. The said writ petitions are still pending.
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2d.      The concerned Block Land & Land Reforms Officer being the

respondent no. 5 has not filed affidavit-in-opposition even as yet.

Hence, the said Respondent No. 5 of the said writ petition being W.P.

No. 7082 (W) of 2009 was not justified in filing the Criminal Case

against the petitioner and the respondent no. 7 of the said writ

petition being W.P. No. 7082 (W) of 2009 was also not justified in

starting the said criminal case against the present petitioner.

2e. Another writ petition being No. W.P. No. 6328 (w) of 2012 (

Rajib Nayak & Ors -vs- The State of West Bengal & ors) was moved in

this Hon'ble High Court challenging the illegality of notification

No.809/CI/MM/84/11 dated 01.12.2011 fixing rate of Royalty on

Brick earth @ 51/- per hundred Cft. The said writ petition was heard

by the then Hon'ble Justice Soumitra Pal and after hearing the

parties on 10.04.2012, His Lordship directed to file affidavit by

15.06.2012 and 29.06.2012 respectively. His Lordship was further

pleased to direct that there will be an interim order to be effect that

the Writ petitioner will be entitled to extract earth upon payment of

royalty at the rate of Rs. 35/- only per Cft. Without prejudice to the

rights and contention of the parties and subject to the further order

that might be passed in the said writ petition. In view of the aforesaid

directions there was no scope for initiating any proceeding under

Rule 22 of the West Bengal Minor Mineral Rules and there was no

justification of initiating the impugned criminal case, the FIR and

charge sheet thereof are both illegal and without justification. Hence,

the petitioner approached before this Court with a prayer for

quashing of the entire proceeding as the proceeding is sheer abuse of

process of law and/or miscarriage of justice when there is an Interim

Injunction Order passed by the Hon'ble High Court.

SUBMISSION ON BEHALF OF THE PETITIONER:

3. Learned Advocate appearing on behalf of the Petitioner

submitted that there was no basis for initiation of the said criminal

case and the same ought not to have been initiated and continued

further rather ought to have been dropped in view of the said solemn

order passed by the Hon'ble High Court on 21.04.2009 and

10.04.2012.

3a. In the said interim order, the Hon'ble High Court has allowed

the petitioner to extract earth upon payment of royalty at the rate

fixed by the Hon'ble High Court. Such payment, however, shall be

without prejudiced to the rights and contentions of the parties and

will abide by the result of the writ petition. Upon payment of royalty,

extraction of earth would have been allowed and same is legal.

3b. In view of the said order, the petitioner is entitled to extract

brick earth upon payment of royalty fixed by the Hon'ble High Court.

So, question of illegal extraction of the earth brick and/or theft of

mineral is out and out false. Even knowing the facts of pendency of

the writ petitions and aforesaid injunction order, the BL & LRO was

not justified in starting criminal case against the petitioner either

under the provisions of West Bengal Minor and Minerals Rules or

Indian Penal Code. But it was done only to harass the petitioner and

with an ill motive. Accordingly, the entire proceeding is liable to be

quashed otherwise it would be a sheer abuse of process of law for

which the petitioner would be greatly sufferer.

SUBMISSION ON BEHALF OF THE STATE:

4. Per contra, learned counsel appearing on behalf of the State

objected the prayer of the petitioner and submitted that the petitioner

had extracted and removed considerable amount of brick earth from

the plots of Mouza - Raghunathpur, J.L. No. 50, Plot no.398 and 399

P.S. - Arambagh, District Hoogly without holding any quarry permit

or licence. After culmination of investigation, a prima facie case has

been established against the present petitioner. Accordingly, this

Criminal Revisional application has devoid of merit and liable to be

dismissed.

DISCUSSIONS AND FINDINGS BY THIS COURT:

5. Heard the rival arguments of the parties and on perusal of

the materials available in the record as well as case diary, this Court

is of the view that the petitioner has approached before this Hon'ble

Court praying for quashing of the proceeding on the ground that

since the financial year 2000-2001, the petitioner has cleared all the

royalties for extracting brick earth and also obtained all the required

documents from the concerned authority. The concerned B.L. &

L.R.O. has also issued several "No Due Certificates" year after year in

favour of the petitioner wherefrom it reveals the BL & LRO,

Government of West Bengal had received the advanced royalties from

the petitioner year after year till 2023 and receipts have been

annexed with the supplementary affidavit filed by the petitioner to

show his bona fide that he had paid the royalties of the brick earth

for extracting in view of the Hon'ble High Court's interim order. Not

only that, the petitioner had Trade Licence issued by the Pradhan of

the concerned Gram Panchayat. The petitioner also obtained

Pollution Control Board Certificate till 18th July, 2022 for business

under the name and style M/s. Sun Brick Field. When there is a

Trade Licence, Pollution Control Board Certificate and the receipts of

payment of royalties at the rate fixed by the Hon'ble High Court then

it cannot be said extraction of brick earth by the petitioner is without

quarry permit or licence.

6. Every financial year, Petitioner has paid royalty to the BL &

LRO, Arambagh, Hooghly and the same had been received by the BL

& LRO, Arambagh, Hooghly. So, question of without permission the

petitioner has extracted the earth brick does not arise. The

certificates of payment of royalties are also issued by the BL & LRO,

Arambagh, Hooghly. Despite issuing of such certificate for payment of

royalties of earth brick of different financial years till 2023, how can

he lodge a complaint against the petitioner under Section 22 of Mines

and Minerals (Development and Regulation) Act, 1957 read with

Sections 379/411 of the Indian Penal Code. It is not the case of the

authority that he has violated any terms and conditions or he has not

paid any royalty to the Government for such extraction of brick earth.

7. In view of the above facts, the FIR lodged by the BL & LRO

against the petitioner for extracting earth brick from the plots of

Mouza - Raghunathpur, J.L. No. 50, Plot no. 389 and 399 P.S. -

Arambagh, District Hooghly appears illegal and without any

justification. The case of the petitioner is very clear and specific. He is

extracting the earth brick in view of the order passed by the Hon'ble

High Court in W.P. No. 7082 (W) of 2009 and W.P. No.6328 (w) of

2012 and after paying the royalties as per the direction passed by the

Hon'ble High Court. Receipts of the same are also endorsed by the BL

& LRO, Arambagh.

8. In the above backgrounds, the present complaint filed by the

BL & LRO is bereft of any justification or merits. The ingredients of

Sections 379/411 are also missing. Accordingly, if the proceeding is

continued against the present petitioner that would be definitely a

sheer abuse of process of law and to secure the ends of justice, this

Court is not powerless to utilize inherent jurisdiction to interfere with

the said proceeding.

9. We should not forget at this moment the well-settled law

declared in the judgment of Hon'ble Supreme Court in State of

Haryana & Ors. vs. Bhajanlal & Ors.1, which has laid down the

basic points for consideration pursuant to which a complaint may be

entertained in accordance with law before a Court of law. The Court

has narrated down as to when the extraordinary power of this Court

under Section 482 of the Code of Criminal Procedure may be

espoused. Relevant portion thereof may beneficially be quoted below:-

1992 Supp. (1) Supreme Court Cases 335

"102. This Court in the backdrop of interpretation of various relevant provisions of CrPC 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 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that 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 to 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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."

10. In the strength of above discussions made by this Court and

in view of observation made by the Hon'ble Supreme Court in the

above cited judgment, this Court fully satisfies that this case falls in

the categories mentioned in (1) and (5) above.

11. Accordingly, CRR 2775 of 2012 is, thus, allowed.

Connected applications, if any, are also, thus, disposed of.

12. Consequently, the proceeding being Arambag P.S. Case No.

90/2007 dated 04.05.2007 under Section 22 of the Mines and

Minerals (Development and Regulation) Act, 1957 read with Sections

379/411 of the Indian Penal Code corresponding to G.R. 190/2007

is, thus, quashed insofar as the petitioner is concerned and all orders

passed thereof in the said proceeding are also, thus, set aside.