Jharkhand High Court
Dev Kumar Dubey vs The State Of Jharkhand on 7 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3108 of 2017
Dev Kumar Dubey ..... ... Petitioner
Versus
The State of Jharkhand ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Indrajit Sinha, Advocate.
For the State : Mr. Arup Kumar Dey, A.P.P.
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07/ 07.04.2022 Heard Mr. Indrajit Sinha, learned counsel appearing for the
petitioner and Mr. Arup Kumar Dey, learned A.P.P. for the State.
2. This criminal miscellaneous petition has been filed for
quashing of the entire criminal proceeding as well as the order taking
cognizance dated 05.01.2017, whereby cognizance under Section 34(A)(i)
of the Jharkhand Minor Concession Rules and under Section 32 of the
Mining Rule has been taken against the petitioner, in connection with
Ramgarh P.S. Case No. 27 of 2016 corresponding to G.R. No. 330 of
2016, pending in the court of learned Judicial Magistrate, 1st Class,
Dumka.
4. The prosecution case in short is that on 17.03.2016, the
informant, who is the District Mining Officer, Dumka along with the Sub-
Divisional Magistrate, Dumka in course of spot verification detected that
sand was being excavated from river bed by Poklen machine and on the
sight of the time, the Polken machine was concealed in bush attached to
river bed at Ramgarh Anchal which was seized and produced to police
station and there is violation of the Rule 34(A)(i) of the Jharkhand Minor
Mineral Concession Rules, 2014, hence directed to lodge FIR against the
petitioner, who is Director of the Company namely Rural Development
and Marketing Pvt. Ltd., under the aforesaid Rules and initiate a
proceeding under Section 9 of the Jharkhand Mineral Dealer's Rules, 2007
for confiscation of the seized Poklen machines.
5. Mr. Indrajit Sinha, learned counsel appearing for the petitioner
submits that although, an agreement has been entered into, but the
petitioner has not started extracting the mines. He submits that some other
person of that area, in which, the lease was granted to the petitioner has
used the Poklen machine and the petitioner has been made accused in this
case. He further submits that Rule 34(A)(i) of the Jharkhand Minor
Mineral Concession Rules says that the mining activities shall be carried
out with the approved mining plan / mining scheme. By way of referring
Rule-54 of the said Rule, which is the penal provision, learned counsel
submits that the punishment is prescribed for three months or fine of Rs.
5,000/- or both may be imposed. In view of Rule-54, he submits that this
Rule is not cognizable and against that FIR cannot be allowed.
6. Learned counsel appearing for the petitioner further refers to
Schedule-II of the Cr.P.C., and submits that it has been disclosed therein
that if the offence punishable with imprisonment for less than three years
or with fine, no cognizance has to be taken. He submits that in the present
case, the petitioner is the Director of the Company and the company is not
made accused.
7. To buttress his argument, he relied upon the judgment of the
Hon'ble Supreme Court in the case of Sunil Bharti Mittal Versus Central
Bureau of Investigation, reported in (2015) 4 SCC 609, wherein the
Hon'ble Supreme Court in Paras-42 to 44 held as follows:-
"42. No doubt, a corporate entity is an artificial
person which acts through its officers, directors,
managing director, chairman etc. If such a company
commits an offence involving mens rea, it would
normally be the intent and action of that individual
who would act on behalf of the company. It would be
more so, when the criminal act is that of conspiracy.
However, at the same time, it is the cardinal principle
of criminal jurisprudence that there is no vicarious
liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the
commission of an offence on behalf of a company can
be made accused, along with the company, if there is
sufficient evidence of his active role coupled with
criminal intent. Second situation in which he can be
implicated is in those cases where the statutory
regime itself attracts the doctrine of vicarious
liability, by specifically incorporating such a
provision.
44. When the company is the offendor, vicarious
liability of the Directors cannot be imputed
automatically, in the absence of any statutory
provision to this effect. One such example is Section
141 of the Negotiable Instruments Act, 1881. In
Aneeta Hada (supra), the Court noted that if a group
of persons that guide the business of the company
have the criminal intent, that would be imputed to the
body corporate and it is in this backdrop, Section
141 of the Negotiable Instruments Act has to be
understood. Such a position is, therefore, because of
statutory intendment making it a deeming fiction.
Here also, the principle of "alter ego", was applied
only in one direction namely where a group of
persons that guide the business had criminal intent,
that is to be imputed to the body corporate and not the
vice versa. Otherwise, there has to be a specific act
attributed to the Director or any other person
allegedly in control and management of the company,
to the effect that such a person was responsible for
the acts committed by or on behalf of the company."
8. Relying on the aforesaid judgment, learned counsel appearing
for the petitioner submits that this is a fit case to be allowed.
9. On the other hand, Mr. Arup Kumar Dey, learned A.P.P.
appearing for the State submits that the petitioner has entered into an
agreement and in view of Clause-5 of the said agreement, the petitioner
was required to do the work in terms of the Rules and other terms and
conditions, but the same has been violated. So far as the argument of Mr.
Indrajit Sinha, learned counsel appearing for the petitioner with regard to
non-cognizable offence and the Company has not been made as party,
learned A.P.P. has not been able to demolish the same.
10. On perusal of the FIR, it appears that the allegations are with
respect to violation of Rule-34(A)(i) of the Jharkhand Minor Mineral
Concession Rules, 2014 and also Rule 34 of the Mining Rule and under
Rule-54, the punishment has been prescribed for three month or fine of
Rs. 5,000/- or both. Thus, it is crystal clear that the FIR was not required
to be lodged, rather only the complaint can be filed in view of Schedule-2
of the Cr.P.C.
11. The company has not been made party in this case and this
aspect of the matter has been fully covered by the judgment of the Hon'ble
Supreme Court in the case of Sunil Bharti Mittal (Supra) and herein also
the case of the petitioner is fully covered in the light of the said judgment
of the Hon'ble Supreme Court.
12. Accordingly, the entire criminal proceeding as well as the
order taking cognizance dated 05.01.2017, whereby cognizance under
Section 34(A)(i) of the Jharkhand Minor Concession Rules and under
Section 32 of the Mining Rule has been taken against the petitioner, in
connection with Ramgarh P.S. Case No. 27 of 2016 corresponding to G.R.
No. 330 of 2016, pending in the court of learned Judicial Magistrate, 1st
Class, Dumka, are hereby, quashed.
13. This criminal miscellaneous petition is allowed and disposed
of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
