Jharkhand High Court

Gagandeep Singh Duggal vs The State Of Jharkhand on 12 April, 2023

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 66 of 2017

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1.Gagandeep Singh Duggal, s/o late Gurubachan Singh Duggal, resident of Kusum Bihar, Koyla Nagar, P.O. and P.S. Saraidhela, District- Dhanbad

2.Umashankar Mahato, s/o Suraj Ram Mahto, resident of Telipara, P.O., P.S. and District Dhanbad .... Petitioner

-- Versus --

The State of Jharkhand, through Officer In charge, Baliapur Police Station, P.O and P.S. Baliapur, District- Dhanbad .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioner        :-    Mr. S.K.Laik, Advocate
       For the State             :-    Mr. Ravi Kerketta, Advocate
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4/12.04.2023        Heard Mr. S.K.Laik, the learned counsel appearing on behalf

of the petitioners and Mr. Ravi Kerketta, the learned counsel appearing

on behalf of the respondent State.

This petition has been filed for quashing of the First

Information Report of Baliapur P.S.Case No.11 of 2017, G.R. Case No.366

of 2017, registered for the offence under section 414/34 of the IPC and

also under Rule 4/54 of Jharkhand Minor Mineral Concession Rules, 2004

and under section 4(1A)/21 of Mines and Mineral (Development and

Regulation) Act, 1957.

The prosecution case was lodged by the Assistant Mining

Officer, Dhanbad alleging therein that the Assistant Mining Officer,

Dhanbad and others while on inspection of illegal mining raided the

crusher plant of Ramkeshwar Mahato and found that several tractors with

trailors loaded with stones bolder (100 cft) were coming. Driver of the

tractors were asked to produce transport challan but they could not

produce the same. It is alleged altogether 6 tractors with trailors were

seized and the drivers disclosed the names of the mines owners and

crusher owners from where stones were loaded. It is further alleged that

the driver of tractor no.JH 10AW 6451 namely Dilip Singh and driver of

tractor no.JH 10AB 3090 (trailer no.JH 10AB 3091) namely Sapan Kumar

Gope had disclosed that they loaded the stones at the mines or petitioner

no.1 and were carrying the same to the crusher plant of petitioner no.2

on being asked they failed to produce any transport challan.

Mr. Laik, the learned counsel appearing on behalf of the

petitioners submits that there is special provision with regard to mining of

the stones and the prosecution under penal code is not attracted. He

submits that the entire proceeding is malafide. He further submits that in

light of Rule 54 of the said Rules only the authorized person can file the

complaint however in case in hand, the Mining Officer has filed the FIR

and in view of that rule, the said FIR is not maintainable. He further

submits that so far as section 414 of the IPC is concerned, this is not

attracted as the documents were there. On this ground, he submits that

entire criminal proceeding and the FIR may kindly be quashed.

On the other hand, Mr. Kerketta, the learned counsel

appearing for the respondent State submits that admittedly the complaint

was registered by the Assistant Mining Officer. He draws the attention of

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

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. On these grounds, he

submits that there is no merit in the petition.

In view of the above submissions of the learned counsel

appearing for the parties the Court has gone through the materials on

record and finds that the FIR was lodged by the Assistant Mining Officer

registered for the offence under section 414/34 of the IPC and also under

Rule 4/54 of Jharkhand Minor Mineral Concession Rules, 2004 and under

section 4(1A)/21 of Mines and Mineral (Development and Regulation)

Act, 1957. Thus, in view of Section 22 of the M.M.D.R. Act and Rule 57 of

the Jharkhand Minor Mineral Concession Rules, 2004 only the complaint

can be maintained and that rule is in consonance with section 22 of the

M.M.D.R Act. Identical was the situation 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 judgment 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."

In light of the law laid down by the Hon'ble Supreme Court

in the case of "Jayant" (supra) so far as proceeding under Rule 4/54 of

Jharkhand Minor Mineral Concessions Rules, 2004 and section

4(1A)/21 of the Mines and Minerals (Regulation and Development )

Act, 1957 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. It is not known that the charge sheet has been submitted or

not. In the case of "Jayant" (supra) the Hon'ble Supreme Court has

also held that if the police officer has investigated the matter and

charge sheet has been submitted the charge sheet may be sent to the

competent authority to examine and file the complaint case and that

aspect is kept open. Once the charge sheet is submitted and it is sent