Calcutta High Court (Appellete Side)

Swapan Datta 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. 2773 of 2012


                             Swapan Datta
                                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. 89/2007 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.

189/2007 pending before the Court of the Learned Judicial

Magistrate, Arambag, District- Hooghly.


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 of the Mines and

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

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

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

removing Brick Earth from the plots of Mouza - Kastodahi, J.L. No.

51, P.S. - Arambagh. Consequently, the accused person, thus,
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committed theft of the minor minerals and thereby he is liable to

prosecute 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. 89/2007 dated 04.05.2007

under Section 22 of the Mines and Minerals (Development and

Regulation) Act, 1957 and 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. 103 dated 21.05.2008 under Section 22 of Mines and

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

379/411 of the Indian Penal Code against the present 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. Ma Sitala Brick Field, situated within the

village Kashadani, P.O. & P.S. Arambagh, District Hooghly, who had

filed and moved a writ petition along with other brick field owners
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being W.P. No. 7082 (W) of 2009 before the Hon'ble High Court at

Calcutta 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 both the parties to file affidavit and exchange thereon

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. Hence,

the petitioner approached before this Hon'ble High Court with a

prayer for quashing of the entire proceeding as the proceeding is

sheer abuse of process of law, when there is an Interim Injunction

Order passed in favour of the petitioner 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.

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 of

Rs. 25/- per cubic feet. 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 to be done.

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

brick earth upon payment of royalty at the rate of Rs. 25/- per cubic

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

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

of the writ petition 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. The FIR and charge sheet are also 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 - Kastodahi, J.L. No. 51, P.S. - Arambagh without

holding any valid 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 2006-2007, 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 from 2005 to 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 31st July, 2027 for business

under the name and style M/s. Maa Sitala 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 in

W.P. No. 7082 (W) of 2009, then it cannot be said that the extraction

of brick earth done 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 and circumstances, the FIR lodged

by the BL & LRO against the petitioner for extracting earth brick from

the plots of Mouza - Kastodahi, J.L. No. 51, P.S. - Arambagh 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

after paying the royalties as per the direction passed by the Hon'ble

High Court. Receipts of the royalty 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 2773 of 2012 is, thus, allowed.

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

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

89/2007 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. 189/2007

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

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