Md. Nasim @ Md. Nasim Ansari vs The State Of Jharkhand
2022 Latest Caselaw 4564 Jhar

                                       1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr.M.P. No. 10 of 2015

     1. Md. Nasim @ Md. Nasim Ansari
     2. Harishankar Mishra
                                                  ......   Petitioners
                           Versus
  The State of Jharkhand                      ...... Opp. Party
                        ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                        ---------
For the Petitioners     : Mr. Mohammad Asghar, Advocate
For the State            : Mr. P.A.S. Pati, G.A.-II
                        ...........

12/Dated: 16/11/2022

Heard Mr. Mohammad Asghar, learned counsel for the petitioners and

Mr. P.A.S. Pati, learned counsel for the State.

2. This petition has been filed for quashing of F.I.R. and entire criminal

proceeding including order taking cognizance dated 31.10.2014 and 13.05.2015

passed in connection with Mahuadanr P.S. Case No. 39 of 2014, corresponding to

G.R. Case No. 651 of 2014, pending in the Court of learned A.C.J.M. at Latehar.

3. The F.I.R. has been lodged on the basis of self statement of one

Ashok Kumar, S.I.-cum-Officer, Incharge of Mahuadanr P.S. recorded on

30.08.2014 at 11.10 hrs, alleging therein that he received secret information that a

red colour dumper is standing at Ranchi Road loaded with illegal stone chips. On

the said information, the informant went there for verification and saw that a

dumper without number is standing loaded with 300 cft. stone chips and driver

was also there. On interrogation, the driver of the said vehicle neither produced

the paper of stone nor he has shown any document of the dumper. The driver

disclosed his name as Md. Nasim Ansari and told that he is bringing the stone

chips from the crusher situated at Gajadharpur and the said dumper and crusher

belongs to one Sri Harishankar Mishra. The alleged stone chips is to be unloaded

at the under-construction house of Sri Baijnath Prasad Gupta of Mahuadanr. The

informant has seized the dumper loaded with stone chips before the two

independent witnesses and accordingly, the F.I.R. was registered under section

414 of the I.P.C. and under Rule 54/67 of the Jharkhand Minor Mineral Concession

Rules, 2004.

4. Mr. Mohammad Asghar, learned counsel for the petitioners assailed

the cognizance order on the ground that the learned court has taken cognizance

under section 414 I.P.C. and under Rule 54/67 of Jharkhand Minor Minerals

Concession Rules, 2004. He further submits that in the light of Rule 57 of the said

Rule only authorized person can file the complaint however in the case in hand,

the police officer has filed the F.I.R. and in view of that Rule, the said F.I.R. is not

maintainable. He further submits that so far as section 414 of I.P.C. is concerned,

that is not attracted as the document for selling of chips in question has been

brought on record. He further submits that petitioner no. 2 having lease

agreement for 10 year by the Government of Chhattisgarh Government annexed

as Annexure 4 series to the main petition. On these grounds he submits that the

entire criminal proceeding including cognizance order is bad in law and fit to be

quashed.

5. On the other hand Mr. P.A.S. Pati, learned counsel for the State

submits that admittedly the F.I.R. was registered by the police officer. He draws

the attention of the Court to section 22 of the M.M.D.R. Act and submits that said

section speaks that no court can take cognizance of any offence punishable under

this Act or any Rules made thereunder except upon complaint in writing made by a

person authorized. He draws the attention of the Court to Rule 57 of the

Jharkhand Minor Mineral Concession Rules, 2004 and submits that name of the

person authorized for filing complaint has been disclosed therein and it has been

stipulated therein that in absence of that no court can take cognizance. Section 22

of the M.M.D.R. Act and Rule 57 of the Jharkhand Minor Mineral Concession

Rules, 2004 are identical in nature. He further submits that this aspect of the

matter has been considered by the Hon'ble Supreme Court in the case of "Jayant

& Others Vs. State of Madhya Pradesh" reported in (2021) 2 SCC 670 . He

referred para 8.3, 8.4, 16 and 21 of the said judgement which are quoted here-in-

below:-

"8.3. That thereafter, after considering the relevant provisions of the MMDR Act, this Court opined that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence. Ultimately, this Court concluded in paras 72 and 73 as under:

"72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly."

8.4. Thus, as held by this Court, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a written complaint made by the authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code.

16. Even as observed by this Court in R.R. Chari [R.R. Chari v. State of U.P., 1951 SCC 250 : AIR 1951 SC 207] , even the order passed by the Magistrate ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. As observed by the Constitution Bench of this Court in A.R. Antulay [A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277] , filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Therefore, when an order is passed by the Magistrate for investigation to be made by the police under Section 156(3) of the Code, which the learned Magistrate did in the instant case, when such an order is made the police is obliged to investigate the case and submit a report under Section 173(2) of the Code. That thereafter the investigating officer is required to send report to the authorised officer and thereafter as envisaged under Section 22 of the MMDR Act the authorised officer as mentioned in Section 22 of the MMDR Act may file the complaint before the learned Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the learned Magistrate would arise.

21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-à-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:

21.1. That the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the In-charge/SHO of the police station concerned to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.

21.2. The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and the Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and the Rules made thereunder.

21.3. For commission of the offence under IPC, on receipt of the police report, the

Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and the Rules made thereunder.

21.4. That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the In-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and the Rules made thereunder and thereafter after investigation the In- charge of the police station/investigating officer concerned submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate. 21.5. In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-section (2) of Section 23-A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any Rules made thereunder so compounded. However, the bar under sub-section (2) of Section 23-A shall not affect any proceedings for the offences under IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."

6. Relying on the aforesaid judgment, he fairly submits that even assuming

that the M.M.D.R. Act is not attracted in view of the fact that F.I.R. has been

lodged by the police officer. Ratio of the said judgment speaks that so far as

section of I.P.C. is concerned, the case can go. On these grounds, he submits that

this Court may pass appropriate order.

7. In reply, learned counsel for the petitioners referring to para 21.5 of

the said judgment relied by Mr. Pati, submits that the Hon'ble Supreme Court has

interfered in that matter and has partly allowed the petition in favour of the

petitioner.

8. In view of above submission of the learned counsel for the parties

the court has gone through the materials on record and finds that admittedly

F.I.R. was lodged by the then Officer-in-Charge under section 414 of I.P.C. and

under section 54/67 of Jharkhand Minor Mineral Concession Rules, 2004. Looking

into Rule 57 of Jharkhand Minor Mineral Concession Rules, 2004, it is crystal clear

that cognizance has been taken by the learned court, if the compliant is filed and

in absence of that cognizance cannot be taken. This Rule is in consonance with

section 22 of the M.M.D.R. Act. This aspect of the matter has been interpreted by

the Hon'ble Supreme Court in the case of "Jayant" (supra) wherein it has been

held that if the police officer investigated the matter and chargesheet has been

submitted, the chargesheet may be sent to the competent authority to examine

and file as complaint case. It has been further held that so far as I.P.C. is

concerned there is no bar to proceed with that matter. Thus the law point is not

res integra in the light of "Jayant" (supra) case. Admittedly, the said

chargesheet submitted has not been sent to the competent authority to examine

and submit complaint before the learned court. The learned court has taken

cognizance under section 414 I.P.C. and under 54/67 of Jharkhand Minor Mineral

Concession Rules, 2004.

9. In the light of ratio of the judgment laid down in the case of "Jayant"

(supra) so far as proceeding under Rule 54/67 Jharkhand Minor Mineral

Concessions Rules, 2004 is concerned, is set aside. So far as proceeding under

Section 414 of I.P.C. is concerned, the Court shall proceed in the matter. The

document relied by the learned counsel for the petitioner is disputed question of

facts which is subject matter of trial which can be proved before the trial court.

10 The concerned Officer-in-Charge may submit chargesheet before the

concerned Officer/DMO to act in consonance with the law laid down by the Hon'ble

Supreme Court in the case of "Jayant" (supra).

11. This petition is allowed partly to the extent that the learned court

shall proceed under the section of I.P.C. Interim order is vacated.

( Sanjay Kumar Dwivedi, J.) Satyarthi/