Jharkhand High Court
Gyan Prakash @ Gyan Sinha vs The State Of Jharkhand .... Opp. Party on 6 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2369 of 2021
Gyan Prakash @ Gyan Sinha, aged 57 years, s/o late Awadh Kishore
Prasad, Resident of Mohallah-Shiv Dayal Nagar, P.O.-Kadma, P.S.-
Katkamdag, Dist.-Hazaribag .... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Awnish Shankar, Advocate
For the State : Mr. P.K. Chatterjee, Spl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to
quash the entire criminal proceeding along with the order dated
18.05.2015, passed in G.R. Case No. 2425 of 2014 arising out of Ichak
P.S. Case No. 181 of 2014 by the learned Judicial Magistrate 1st Class,
Hazaribag whereby and where under, the learned Judicial
Magistrate 1st Class, Hazaribag has taken cognizance for the offences
punishable under Section 379 of the Indian Penal Code as well as
Section 21 of the Jharkhand Mines and Minerals (Development and
Regulation) Act, 1957 and Rule 54 of the Jharkhand Minor Mineral
Concession Rules, 2004.
3. At the outset, it is submitted by the learned counsel for the
petitioner that the petitioner confines his prayer only for quashing
the portion of the order, so far as it relates to the offences punishable
under the Mines and Minerals (Development & Regulation) Act and
abandons other prayer.
4. The brief fact of the case is that the petitioner has committed theft
of mines and minerals like stone dusts and stone chips and stalked
them in the premises.
5. The learned counsel for the petitioner drawing attention of this
Court to Section 22 of the Mines and Minerals (Development and
Regulation) Act, 1957 which reads as under:-
"22. Cognizance of offences.--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 authorised in this behalf by the Central
Government or the State Government."
submits that the said Act in no uncertain manner envisages that
cognizance of any offence punishable under the Mines and Minerals
(Development and Regulation) Act or any Rules made there under
can only be taken by the court if and only if, a complaint in writing is
made by a person authorized in this behalf by the Central
Government or the State Government. It is next submitted that even
though no complaint was made in writing to the court by any person
authorized in this behalf by the Central Government or the State
Government, rather a F.I.R. was lodged, the learned court below
ought not have taken cognizance of the offences punishable under
the Mines and Minerals (Development and Regulation) Act and the
Rules made there under being the Jharkhand Minor Mineral
Concession Rules.
6. In support of his contention, the learned counsel for the petitioner
relies upon the Judgment of a coordinate Bench of this Court in the
case of Dasrath Yadav vs. The State of Jharkhand and allied cases
in Cr.M.P. No. 867 and 2016 dated 13.12.2016, wherein the
coordinate Bench relying upon the judgment of Hon'ble Supreme
Court of India in the case of State (NCT of Delhi) Vs. Sanjay and
allied cases, reported in (2014) 9 SCC 772 went on set aside the
charge framed under Section 21 of Mines and Minerals
(Development and Regulation) Act and submits that the portion of
the order taking cognizance so far as it relates to the offence
punishable under Section 21 of Mines and Minerals (Development
and Regulation) Act be quashed and set aside.
7. The learned Spl. P.P. do not have any objection to the prayer for
quashing the portion of the said order taking cognizance so far as it
relates to the offence punishable under Section 21 of Mines and
Minerals (Development and Regulation) Act.
8. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that it is a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of Jayant and Others Vs. State
of Madhya Pradesh, reported in (2021) 2 SCC 670, para -21.2 of
which reads as under:-
"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."
that 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.
9. Hence, this Court has no hesitation in holding that the cognizance
of the offence punishable under Section 21 of Mines and Minerals
(Development and Regulation) Act can only be taken by a court
competent to take cognizance of such offence, only upon complaint
in writing by a person authorized by the Central Government or the
State Government. In para -72 of the Judgment of Hon'ble Supreme
Court of India in the case of State (NCT of Delhi) Vs. Sanjay
(supra), paragraph no.72 of which reads 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."
the Hon'ble Supreme Court has clarified that the said Section 22
will not debar the State Police in registering cases for the offences
punishable under Section 379 of the Indian Penal Code or any other
offence which is punishable under the penal provision of law other
than the penal provisions as mentioned in Mines and Mineral
(Development and Regulation) Act or any Rules made thereunder
but so far as the offence under Jharkhand Minor Mineral Concession
Rules, 2004 is concerned, Rule 54 of the said rules has categorically
provided for the cognizance under the said Rules to be taken by the
concerned court upon the FIR also, hence, this Court do not find any
illegality in the order taking cognizance by the learned Judicial
Magistrate 1st Class, Hazaribagh so far as it relates to offence
punishable under Rule 54 of the Jharkhand Minor Mineral
Concession Rules, 2004.
10. Now coming to the facts of the case, undisputedly the cognizance
has been taken by the learned Judicial Magistrate 1st Class,
Hazaribagh of the offences punishable under the Mines and
Minerals (Development and Regulation) Act without a complaint in
writing being made by the person authorized in this behalf by the
Central Government or the State Government, hence, the learned
Judicial Magistrate 1st Class, Hazaribagh has committed gross
illegality by taking cognizance of the offences punishable under the
Section 21 of the Mines and Minerals (Development and Regulation)
Act.
11. Accordingly, the order dated 18.05.2015 taking cognizance, passed
in G.R. Case No. 2425 of 2014 arising out of Ichak P.S. Case No. 181
of 2014 by the learned Judicial Magistrate 1st Class, Hazaribagh in
respect of offence punishable under Section 21 of the Jharkhand
Mines and Minerals (Development and Regulation) Act is quashed
and set aside.
12. It is made clear that the cognizance taken in respect of Section 379
of the Indian Penal Code and Rule 54 of the Jharkhand Minor
Mineral Concession Rules, 2004 is maintained.
13. It is further made clear that the quashing of the offences for which
cognizance was taken by the learned court below in respect of the
said offences punishable under Section 21 of the Mines and Minerals
(Development and Regulation) Act will not debar the learned trial
court to frame charges for any other offences punishable under any
other penal provisions of law other than those prohibited under
Section 22 of Mines and Minerals (Development and Regulation)
Act.
14. This criminal miscellaneous petition is disposed of accordingly.
15. The interim order granted earlier stands vacated.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 6th May, 2024
AFR/Sonu-Gunjan/-
