Jharkhand High Court
Dev Kumar Dubey vs The State Of Jharkhand on 27 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 1637 of 2022
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Dev Kumar Dubey ... .... Petitioner
Versus
The State of Jharkhand ... .... Opp. Party
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : M/s Indrajit Sinha & Ashish Kumar, Advocates
For the State : Mr. P.K. Chatterjee, S.P.P.
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Oral Order
10 / Dated : 27.09.2023
I.A. No. 5208 of 2023
1. Heard learned counsel for the petitioner in this interlocutory application
which has been filed for amendment in para 1 and prayer portion of cr. misc.
petition by way of insertion of prayer as mentioned in para 3 of the
interlocutory application.
2. Learned counsel for the opposite party has raised no serious objection.
The amendment petition is allowed. Let para 3 of interlocutory application
form part of the relief of main quashing petition.
I.A. No. 5208 of 2023 stands disposed of.
Cr. M. P. No. 1637 of 2022
3. The instant criminal misc. petition has been filed for quashing the order
dated 25.04.2022 passed in Cr. Revision No. 132 of 2017 by learned
Sessions Judge, Deoghar, whereby and where under, rejection of discharge
petition was affirmed by the Revisional Court and the charge has now been
framed under Section 379 of IPC and Rule 54 (1) of the Jharkhand Minor
Minerals Concessions Rules, 2004 in Sarwan P.S. Case No. 23 of 2016
(G.R. No. 282 of 2016).
4. It is submitted by learned counsel for the petitioner that a bare reading of the
FIR will show that there is no allegation whatsoever regarding the offence of
committing theft. The petitioner is the Director of the Company which is a
lessee for excavation of sand from the river bank in Deoghar. The only
allegation is that instead of manual labour, Poklen machine has been used in
the said excavation. Even if this allegation is accepted to be true, no offence
will be made out.
5. It is further submitted that admittedly as per Clause 9 Part 3 of the lease
agreement, it has been stipulated that subject to availability of labour,
excavation will be done by manual labour but in absence of availability of
labour, excavation by machinery was permitted.
6. This clause was challenged in W.P. (C) No. 170 of 2012 in which vide order
dated 27.02.2013 reported in 2013 SCC OnLine Jhar. 2383 has held :
However, so far as the restriction imposed on use of machinery are
concerned, in view of the constitutional goals enshrined under the
Directive Principles of State Policy for ensuring employment and
livelihood of the local principle there has to be reasonable balance in
the manner of use of machinery in lifting and excavation of sand so as to
prevent the efflux of local people to other places. It is therefore, the duty
of the respondent authority to ensure that a reasonable balance is
ensured so that use of machinery is neither prohibited totally nor use of
machinery reaches to a stage when the requirement of manual labour is
totally extinguished in the process. However, in respect of the conditions
imposed by Annexure-6 dated 16.12.2011, respondents authorities are
required to take re-look into the same by ensuring reasonable balance in
the use of machinery and that of manual labourer in excavation of sand
so as to project the interest of the local labourer.
7. The judgment passed by the Single Bench has been upheld by the Division
Bench of this Court in LPA No. 132 of 2013. In this view of the matter,
lessees were permitted to do excavation of sand by machine where labours
were not available and there was no complete prohibition. Lastly, it is
submitted that the clause of agreement putting part restriction of use of
machinery is not a part of statutory rule so as to attract the penal provision of
Rule 54 (1) of the Jharkhand Minor Minerals Concessions Rules, 2004.
8. Learned counsel for the State has opposed the quashing petition and
submitted that the question whether it is a case of breach of lease of
agreement which was duly signed by the petitioner and whether the labour
was available or not is a question of fact which cannot be looked into at the
stage of cognizance.
After having considered the rival submissions advanced on behalf of
both sides, I find much force in the argument on behalf of the petitioner that
even if the allegation is assumed to be true, no prima facie case will be made
out. As far as offence under Section 379 of IPC is concerned, there is no
allegation far less any material to substantiate the charges. As far as the
condition of breach of agreement is concerned, counsel for the petitioner is
right to say that the breach of agreement will not ipso facto attract the penal
provision.
Under the circumstance, the order dated 25.04.2022 passed in Cr.
Revision No. 132 of 2017, along with the entire criminal proceeding is quashed
so far as the petitioner, above named, is concerned.
Instant Cr. Misc. Petition is allowed. I. A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
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