Jharkhand High Court
Rakesh Kumar vs The State Of Jharkhand & Others on 4 October, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr) No. 361 of 2023
1. Rakesh Kumar
2. Rajiv Ojha ...... Petitioners
Versus
The State of Jharkhand & Others ........Respondents
---------
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners : Mr. Utkarsh Krishna, Advocate
For the State : Mr. Binit Chandra, A.C. to G.A.-III
09/Dated: 04/10/2023
Heard Mr. Utkarsh Krishna, learned counsel for the
petitioners and Mr. Binit Chandra, learned counsel for the State.
2. This petition has been filed for quashing the entire criminal
proceeding arising out of Govindpur (Dhanbad) P.S. Case No. 213 of 2022
dated 16.06.2022 registered under sections 379, 411, 414, 34 of the Indian
Penal code and section 4 & 21 of the Mines and Minerals (Development and
Regulation) Act, 1957, Rule 7, 9, 13 of the Jharkhand Minerals (Prevention of
Illegal Mining, Transportation and Storage) Rules, 2017, pending in the Court of
learned Judicial Magistrate, Ist Class, Dhanbad.
3. The F.I.R. has been lodged alleging therein that the
informant namely Mr. Mihir Shalkar presently posted as District Mining Officer,
Dhanbad has come to the Police Station and submitted the seizure list as well
as typed complaint for which the F.I.R. has been lodged in the complaint. It is
stated that the District Mining Officer, has seized 2103.50 Ton of raw coal upon
the information received that Shivam Coke Pvt. Ltd., the manufacture of hard
coke was receiving illegal/theft coal, since the said coal is being sold without
using transport challan. On getting such information, the informant District
Mining Officer along with other government authorities and other police
personnel inspected the industry/unit of the petitioners on 16.06.2022 at
around 12 O'clock in the noon. During inspection, it was found from the Stock
Register that the total available coal which should be available with the factory
is 2037.691 Ton. Measurement was carried out and after the measurement, it
was found that the total stock of raw coal in the premises of the industry is
2103.50 Ton, and the said stock does not tally with the statement in the stock
register. It has further been alleged that the Purchase Register of the company
was produced before the Purchase Inquiry Committee, and said committee
asked for e-transport challan for transportation of the aforesaid quantity of coal.
Upon such demand, the transport challan for the month of April, May June was
produced and then it was found further that the entry made in the Purchase
Register further transpires that some of the coal found in the stock has not
been validly purchased, since the said purchase was made in absence of e-
transport challan which resulted into loss to the government revenue. During
inquiry, it has further been found that the minerals are being purchased
through multiple e-way bill which is not in consonance with the Provisions of
Jharkhand Minerals (Prevention of Illegal Mining. Transportation and Storage)
Rules, 2017 and therefore the said stock of coal appears to be illegal. It has
further been alleged that the coal which has been illegally received was shown
in the monthly register of the company, showing recovered quantity but said
entry is not in accordance with the Rule. Besides that the Invoice of the
Company had also shown some tax invoices and e-way bill but the aforesaid e-
way bill was also examined and it was found that the number of the vehicle
written in the e-way bill was not issued to the said vehicle during the period in
question, and therefore it has been prima facie found that Shivam Hard Coke
and its owners are continuously receiving illegal coal, as a result of which the
government has suffered its revenue. During inquiry, the Inquiry Committee
demanded weigh bridge purchase. The weigh bridge showing the purchase of
coal during the financial year 2022-23. The employees present there only could
produce e-way bill for the month of May and June, but in the said e-way bill,
the weighted quantity of coal was not found and therefore the aforesaid e-way
bill was also suspected. Besides that when the enquiry committee asked for the
footage of CCTV then they were told that CCTV Camera was not installed in the
Hard Coke Factory although i.e. in violation of direction of the Deputy
Commissioner, Dhanbad. From the aforesaid facts, it was transpired that CCTV
Footage was not installed intentionally in order to hide illegal transportation of
coal. Accordingly, the inquiry committee and its member for discussing the
entire issue has come to a finding that the said quantity of coal comes to the
extent of 2103.50 Ton which was seized, has been handed over to the
accountant of the company for its security and the aforesaid person named has
taken the responsibility of the coal with the undertaking that the aforesaid coal
shall neither be sold nor manipulated and as and when the competent court will
demand such seized article that shall be produced as and when require. It has
finally been concluded that the owners of Shivam Coke Pvt. Ltd were using the
coal in an illegal manner, and therefore it is in violation of section 4 & 2 of the
Mines and Minerals (Development and Regulation) Act, 1947, Rule 7,9,13 of
Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage)
Rules, 2017, Therefore, based on the aforesaid information, the present F.I.R.
has been lodged.
4. Mr. Utkarsh Krishna, learned counsel for the petitioners submits
that the petitioners have purchased imported coal for which no e-transport
challan generated under JIMMS portal and only requirement is e-way bill which
has been produced which is a sufficient document to show that the coal has
been purchased in accordance with law. He submits that the petitioners'
industry is a Hard Coke Manufacturing Industry and has been registered under
Small Scale Industries. He further submits that for release of the coal in
question petitioners filed a petition before the learned Judicial Magistrate, Ist
Class, Dhanbad and by order dated 14.03.2023 the coal has been directed to
be released in favour of the petitioners considering that the Investigating
Officer has submitted report that G.S.T and e-way bills were genuine but not
found Form-D. He submits that in this background case under the I.P.C.
sections are not made out. He further submits that considering this aspect of
the matter the petitioners have been provided the privilege of anticipatory bail.
He further submits that with regard to Mines and Minerals Act, only complaint
can be maintained by way of filing before the learned Magistrate. On these
background he submits that continuation of proceeding is abuse of process of
law. He relied in the case of "State of Haryana and others V. Bhajan Lal
and others" 1992 Supp. (1) SCC 335 wherein para 102 it has been held as
under:-
"102. In the backdrop of the interpretation of the various relevant provisions
of the Code 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 or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court or otherwise to
secure the ends of justice, though 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 of 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 concerned Act (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 concerned Act, 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."
.
5. Relying on the said judgment he submits that the case of the
petitioners is coming under the guideline no. 1 and 3 of para 102 of the said
judgment. He submits that once I.P.C. sections are not made out in view of
section 22 of the Mines and Minerals (Development and Regulation) Act, 1957
only complaint can be maintained and to buttress this argument he relied in the
case of " Calcutta Jaipour Paribahan Private Limited Vs. State of
Jharkhand and Others" (2009) SCC Online Jhar 552 and in the case of
"Pancham Singh Vs. State of Jharkhand and Another" (2012) 2 SCC
Online Jhar 1643. On these grounds he submits that entire criminal
proceeding may kindly be quashed.
6. On the other hand, Mr. Binit Chandra, learned counsel for the
respondent-State submits that although coal was released in favour of the
petitioners however, Form-D was not found there. He submits that in view of
that sections of MMDR Act is attracted. He submits that there is no bar in filing
the F.I.R. and the F.I.R. has been rightly registered.
7. In view of above submissions of the learned counsel for the
parties, the Court has gone through the contents of F.I.R. and finds that
admittedly the case has been lodged for transportation of coal in question. The
said coal has been released by the learned court by order dated 14.03.2023
considering the report of Investigation Investigating Officer wherein he has
reported that GST and e-way bills were found to be genuine and considering
this aspect of the matter the petitioners have been provided benefit of
anticipatory bail. Thus, it appears that I.P.C. sections are not attracted and if
the I.P.C. sections are not attracted the case of the petitioners is fully covered
in view of judgment of the Hon'ble Supreme Court in the case of Bhajan Lal
(supra).
8. Further coming to the MMDR Act, it appears that section 22 of
the Mines and Minerals (Development and Regulation) Act, 1957 speaks of
cognizance of offence which reads as under:-
"22. Cognizance of offence:- No Court shall take cognizance of
any offence punishable under this Act or any rules made thereunder
except upon complaint in writing made by a person authorized in this
behalf by the Central Government or the State Government."
9. Looking into the aforesaid provisions such as Act and Rule which
provides complaint in writing made by a person authorized. The word
'complaint' has been defined under clause (d) of section 2 of Cr.P.C which
reads as under :-
"2 (d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has committed
an offence, but does not include a police report."
10. Thus, if a complaint is being filed it must be made to the
Magistrate and it must be with a view to his taking action under the Code. It
must contain an allegation that some person whether known or unknown has
committed an offence. It must not be report of the police officer. Admittedly in
the case in hand complaint is not filed before the learned Magistrate in view of
that it cannot be said that the said F.I.R. is complaint in view of clause 2 (d) of
Cr.P.C.
11. In view of above facts, reasons and analysis, the entire
criminal proceeding arising out of Govindpur (Dhanbad) P.S. Case No. 213 of
2022 dated 16.06.2022 pending in the Court of learned Judicial Magistrate, Ist
Class, Dhanbad, is quashed.
12. This petition stands allowed and disposed of. Pending I.A. if
any, stands disposed of. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.)
Satyarthi
