Orissa High Court

Soumendra Nandan Dasmohapatra vs State Of Odisha (Vig.) on 18 April, 2023

      IN THE HIGH COURT OF ORISSA AT CUTTACK


                  CRLREV NO.406 OF 2018

(From the judgment dated 21st April, 2018 passed by learned
Special Judge, Vigilance, Keonjhar in VGR Case
No.35/2009(T.R. Case No.33/2011)


     Soumendra Nandan Dasmohapatra
     and another
                           ... Petitioners

                                  -versus-


      State of Odisha (Vig.)                     ...      Opposite Party



  Advocates appeared in the case through hybrid mode:


         For Petitioners : Mr.R.S.Rao, Sr.Advocate
                           Mr.S.Mohanty, Advocate
                           Mr. A. Pattnaik, Advocate

                                              -versus-


        For Opp.Paty                  : Mr.Sangram Das,
                                         Standing Counsel
                                         (Vig. Deptt.)
  ---------------------------------------------------------------------------
         CORAM:

                       JUSTICE SASHIKANTA MISHRA


CRLREV No.406 of 2018                                              Page 1 of 35
                                           JUDGMENT

18.4.2023.

Sashikanta Mishra,J. The Petitioners, in the present Criminal

Revision question the correctness of order dated

21.04.2018 passed by learned Special Judge (Vigilance),

Keonjhar in VGR Case No. 35/T.R. Case No. 45 of 2010 in

rejecting the application filed by them under Section 239 of

Cr.P.C to discharge them from the case. The Petitioners

and 15 other persons have been charge-sheeted for the

offence under section 13 (2) read with section 13 (1)(d) of

the PC Act, 1988 and sections 420/379/120-B of IPC and

Section 21(1) of Mines and Minerals (Regulation and

Development) Act, 1957 (For short <MMDR Act=) for

allegedly committing criminal conspiracy for illegal mining

operation for excavation of manganese ore and for cheating

the government by not paying the required sales tax by

fabricating records.

2. The facts of the case as culled out from the FIR, charge-

sheet and the Criminal Revision petition are as follows:

The Petitioner No.1 and a company named M/s. RBT

Ltd. were granted separate mining leases in adjacent areas

in the district of Keonjhar for extraction of manganese ore.

Petitioner No.1 extracted such ore and dispatched the

same after obtaining transit permits and paid royalty and

other dues to the state government. Some dispute arose

between him and the said M/s. RBT Ltd with regard to the

area within which they could extract manganese ore. While

the matter stood thus, the Mining officers seized

manganese lump ore of 2109.987 MTs on 4.6.2008 on the

ground that the same was extracted by the Petitioner No. 1

from outside his lease area. The petitioner approached this

Court in WP(c) No. 7998 of 2008 challenging such seizure

of ore and fines. Having regard to the factual controversy

involved, a division bench of this Court in the

aforementioned writ petition constituted a Joint

Verification Committee comprising of two Joint Directors of

Mines and a Senior Surveyor in the office of Deputy

Director of Mines to make a joint inspection of the

leasehold area of the Petitioner No.1 and to submit report.

Accordingly an inspection was made by the Committee and

its report dtd.17.09.2008 was submitted to this Court on

26.9.2008. The report indicated that out of three pits in the

mining leasehold area of Petitioner No.1, Pits 8J9 and 8M9 are

situated completely inside the leasehold area and the major

portion of 8JM9 Pit is outside the leasehold area. After going

through the report dated 17.9.2008 this Court found that

the same nowhere speaks that 2109.987 MTs of

manganese lump ore stacked in the leasehold area and

seized by the Mining Officer were raised from outside the

leasehold area rather it was further revealed that after

seizure, the lessee produced fresh stock of 1068 MTs of

manganese lump or from Pit 8J9 and 8M9 within the

leasehold area. Since there was some ambiguity relating to

the exact physical area of the mining lease of Petitioner

No.1, this Court directed that proper demarcation of the

leasehold area should be made following the procedure laid

down in Rule 33 of MMC Rules which portion of 8JM9 Pit is

coming within the leasehold area and accordingly the

petitioners should be allowed to lift and transport the

manganese fines proportionate to the extent of the area of

the 8JM9 Pit coming within the leasehold area. This Court

further directed the exercise to be completed within a

period of four months.

The State challenged the judgment of this Court in

the Apex Court in SLP (c) No. 10622 of 2010 but the same

was dismissed vide order dtd. 23.07.2010.

3. However, in the meantime an FIR was lodged on

10.08.2009 by M. Radhakrishna, DSP of Vigilance before

the SP Vigilance, Balasore alleging the following facts:

One RBT Ltd. had applied for grant of mining lease for

manganese ore over an area of 96.568 hector in village

Barapada, Kolha Rudukela in the district of Keonjhar on

25.9.91. The Govt. of Odisha, by letter dated 18.1.94

intimated the company that its application for mining lease

was under consideration subject to compliance of various

statutory clearances and the company was also asked to

furnish its approved mining plan for 96.568 hector. The

Petitioner No.1 acted as the representative of the said

company though no specific power of attorney was

executed in its favour. Nevertheless he conducted all

transactions on behalf of M/s RBT Ltd. since then.

Subsequently the Petitioner No. 1 was granted mining lease

on his own application over an area of 36.474 hector

adjoining the proposed mining lease area of M/s RBT Ltd.

It was found that Petitioner No.1 had dispatched 257.86

MTs of manganese ore during 2002-03, 1894.25 during

2003-04, 2086.749 during 2004-05, 4547.40 during 2005-

06, 9501.40 during 2006-07, 10192.49 during 2007-08

and 1162.24 during 2008-09. Complaints were received

that the Petitioner No.1 had undertaken mining activities

beyond the jurisdiction of his mining lease area. In course

of a joint physical verification conducted by the vigilance

department in presence of officials of the mining

Department on 18.07.2009 it was revealed that large-scale

excavation and extraction of manganese ore had been done

in the proposed mining lease area of M/s. RBT Ltd.

adjacent to the mining lease area of Petitioner No.1 and on

a stretch of Government land (forest land) in between the

two areas. Further, the Petitioner No. 1 was found to have

constructed permanent houses beyond his lease area by

entering into forestland and had also installed one

screening plant in the forestland inside the proposed lease

area of M/s.RBT Ltd. Thus, a quantity of 52376 MTs of

manganese ore had been illegally extracted from the

proposed lease area of M/s. RBT Ltd. Ltd, government

forestland, safety area, the approximate cost of which

would be Rs.110 crores and the average price of Rs.21,000

per metric ton. Further, a quantity of 2109.987 MTs of

manganese ore and 24491.951 MTS of manganese fines

were illegally raised by Petitioner No.1 outside the

leasehold area which were seized by the mining officials on

28.05.2008. As regards the different forest officials, it was

alleged that they had conspired with the Petitioner No.1

and allowed such illegal mining activities causing huge loss

to the government exchequer.

4. Upon completion of investigation, charge-sheet was

submitted under aforementioned sections of PC Act, IPC

and MMDR Act.

5. The Petitioners moved this Court in WP (c) No. 842 of

2009 against submission of charge-sheet despite the order

of this Court in WP(c) No. 7998/2008. This Court disposed

of WP (c) No. 842 of 2009 by order dtd. 07.02.2009

granting liberty to the Petitioners to raise all such

contentions before the Court below. Pursuant to such

order, the Petitioners moved an application under Section

239 of Cr.P.C. seeking discharge but the same was rejected

by order dtd. 21.04.2018 by the Court below. The said

order is impugned.

6. Heard Shri Rajashekhar Rao, learned Senior Counsel

with Shri Suraj Mohanty and Shri Aswini Pattnaik, learned

counsel for the petitioners and Shri Sangram Das, learned

Standing Counsel appearing for the Vigilance department.

Assailing the impugned order, Shri Rao, learned Senior

Counsel would first contend that the very foundation of the

case is unsustainable in law inasmuch as the FIR that set

the law into motion was lodged by a person who was not

authorized to do so in terms of section 22 of the MMDR

Act. Amplifying his arguments on such score, Shri Rao

argues that taking of cognizance of the offences by the

Court below is, therefore in violation of the mandate of

Section 22. True, the State Government came out with a

Notification dtd.14.01.2010 conferring powers of

investigation, inquiry etc. on some officers including those

of the vigilance department in respect of mining offences,

but it cannot have any retrospective application. So,

according to Shri Rao, as on the date of lodging of the FIR,

the vigilance department had no authority to initiate the

investigative process. Shri Rao has relied upon a decision

of the Apex Court in the case of CBI -Vrs- State or

Rajasthan (1996) 9 SCC 735 in this regard to submit that

lack of investigative competence goes to the root of the

matter and hence, the criminal proceeding in the instant

case has to be treated as non-est and void ab initio.

7. The next argument of Shri Rao is regarding un-

tenability of the prosecution on the self-same allegation

that has already been adjudicated by this Court and

confirmed by the Supreme Court of India. Referring to the

FIR as well as the charge-sheet, Shri Rao would submit

that the basic allegations on which the present proceeding

has been initiated had also been the subject matter of

challenge before this Court in WP (c) No. 7889 of 2008

wherein the petitioners stood completely exonerated.

Elaborating his point, Shri Rao submits that the earlier

allegation was that the petitioners had illegally raised

Manganese lump ore to the extent of 2109.987 MT and

Manganese fines to the tune of 24491.951 MT from outside

their mining leasehold area. This Court, after directing a

Joint Verification to be made, found the said allegation to

be without any basis and also directed the area to be

demarcated to determine if any part of the extraction from

a particular pit (JM) was outside the leasehold area. If so,

the petitioner was also granted liberty to dispatch

Manganese ore proportionately as would correspond to its

leasehold area. The judgment of this Court was confirmed

by the Supreme Court in appeal by the state. Thus,

according to Shri Rao, the Opposite Parties could not have

initiated another proceeding on the self-same allegations

which is nothing but an exercise in frivolity. It also smacks

of malafides on the part of the opposite parties to somehow

entangle the petitioners in a criminal case not to speak of

the apparent violation of his fundamental rights

guaranteed under Articles 14 and 21 of the Constitution of

India.

8. The third limb of challenge posed by Shri Rao to the

impugned order is the disinclination of the Court below to

follow the settled principle of law that charge is to be

framed only if there is prima facie proof of the offences

having been committed and in this regard, it is obligatory

for the Court to sift through the materials on record for its

subjective satisfaction rather than mechanically accepting

the prosecution case on its face value. According to Shri

Rao, the Court below has not applied its judicial mind in

the proper perspective to the relevant facts and materials

available on record and thereby, rejected the petition for

discharge on untenable grounds.

9. Summing up his arguments, Shri Rao would submit

that the proceeding, if allowed to continue would amount

to an abuse of the process of the Court besides putting the

petitioners to the ignominy of trial despite absence of a

prima facie case against them. Moreover, it would be a

classic case of subjecting a person(s) to criminal proceeding

despite an order of exoneration passed in his favor by the

High Court on the self-same set of allegations.

10. Per Contra, Shri Sangram Das has supported the

impugned order and vociferously justified the initiation and

continuance of the criminal proceedings. As to the so-

called lack of authorization of the vigilance officers in

launching the case and investigating the offences, Shri Das

would argue that the provision under Section 22 of the

MMDR Act is not an absolute bar for taking action by the

Vigilance Department as the bar is attracted only when the

person is sought to be prosecuted for contravention of

Section 4 of the Act and not for any act of commission

constituting offences under the IPC. In the instant case,

Shri Das points out, the charge-sheet was submitted not

only for the offences under the MMDR Act but also under

the IPC and therefore, the stand taken by Shri Rao is not

tenable. In this regard, Shri Das has relied upon the

decision of the Apex Court in the case of State (NCT of

Delhi) Vrs Sanjay and others reported in (2014) 9 SCC

772. Citing the same ground Shri Das argues that the

order of cognizance also cannot be challenged since it is

not possible for a Court to split its own order taking

cognizance. Shri Das further argues that even otherwise,

the government by notification dtd. 14.01.2010 did specify

the officers empowered to conduct investigation/enquiry

and to take legal action under the provisions of IPC and

other relevant Acts and Rules pertaining to illegal mining

activities. In the case at hand, the FIR was lodged on

10.08.2009 but charge-sheet was submitted on 01.12.2010

and cognizance was taken on 07.12.2010, that is, after the

issuance of the notification.

11. On merits, it is contended by Shri Das that the

charge-sheet relates to several occurrences not covered by

the judgment rendered by this Court in WP (c) No. 7889 of

2009. The lessee (petitioner) was also found to have

transgressed into the mining leasehold area of M/s RBT

Ltd and extracted huge quantity of Manganese ore and

fines illegally without paying the statutory dues including

sales tax thereby causing great loss to the state exchequer.

The specific allegations contained in the FIR and the

charge-sheet are distinct and different from the matters

adjudicated upon by this Court in the aforementioned writ

petition as rightly held by the Court below.

12. It is finally submitted by Shri Das that the materials

on record give rise to grave suspicion regarding

commission of the alleged offences by the Petitioners,

which is adequate to frame charge. The contentions

advanced by the Petitioners are such as can be raised and

considered only at the time of trial but not at the threshold.

There being sufficient grounds for proceeding against the

Petitioners, the Court below committed no illegality in

passing the impugned order.

13. As regards the challenge by the Petitioners to the

competence of the Vigilance Police to investigate an offence

under Section 22 of the MMDR Act, it is seen that the

F.I.R. was lodged on 10.8.2009 by one M. Radhakrishna,

D.S.P (Vig). Basing on such F.I.R., Balasore Vigilance P.S.

Case No.35 dated 10.8.2009 was registered under Section

13(2) read with 13(1)(d) of the P.C. Act and Section 120-B

of the I.P.C. Even though the offences related to illegal

mining yet, the case as such was registered under Section

21 of the MMDR Act. However, upon completion of the

investigation, the offence under Section 21 of the MMDR

Act was added along with the offences under Sections

420/379 of I.P.C. The Court below took cognizance of all

the charge sheeted offence including the one under Section

21 of MMDR Act. Section 21 of the Act reads as under:-

<(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.] (2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable 2[with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees], or with both, and in the case of a continuing contravention, with an additional fine which may extend to 3[five hundered rupees] for every day during which such contravention continues after conviction for the first such contravention. 4[(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority

may, if necessary, obtain the help of the police to evict the trespasser from the land. 5[(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.] (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.] (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.]=

14. By a Notification dated 14.1.2010 the State

Government authorized the Vigilance Police to investigate

and take all legal action in respect of offences committed

under different acts including the MMDR Act. However,

fact remains that no complaint as such was filed for the

offence under Section 21 of the MMDR Act prior to passing

of the order taking cognizance.

15. Thus, this Court while disagreeing with the contention

of learned Senior counsel that the Vigilance Police lacked

competence to investigate yet, feels persuaded to agree

with his contention that no complaint having been filed as

required under Section 22 of the MMDR Act, the order

taking cognizance becomes susceptible to challenge.

16. Learned Standing counsel for the Vigilance Department

has relied upon the judgment of Apex Court in the case of

State (NCT of Delhi) Vrs Sanjay and others (supra),

which was rendered in relation to the provisions under

Sections 22, 21 and 4(1-A) of the MMDR Act after

examining the judgments passed by different High Courts,

the Apex Court held that the prohibition contained in

Section 22 of the Act against prosecution of a person

except on a complaint made by the Officer is affected only

when such person is sought to be prosecuted for

contravention of Section 4 of the Act and not for any act or

omission, which constitutes an offences under the Penal

Code. Having distinguished between the offences under

Section 21 of the MMDR Act and Section 378 of the I.P.C.,

the Apex Court finally held as follows:-

<After giving our thoughtful consideration in the matter, in the light of 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 facing jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized 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.=

17. Thus, in so far as the other offences under I.P.C. are

concerned, it is open to the concerned Court to take

cognizance of the said offences without awaiting the receipt

of the complaint filed by the authorized Officer for taking

cognizance of offences under the MMDR Act. This obviously

does not mean that the Court can take cognizance without

a complaint being filed by an Officer authorized in this

behalf by the Central/State Government. Admittedly, the

Investigating Officer, who submitted charge sheet, had not

submitted any complaint and, therefore, the Court below

could not have taken cognizance of the offence under

Section 21 of the Act. Learned Standing Counsel has

submitted that the order of cognizance cannot be split, but

then in view of the statutory mandate as referred to

hereinbefore that part of the order by which cognizance

was taken of the offence under Section 21 of the Act cannot

be treated as valid in the eye or law.

18. Having held thus and before proceeding to examine the

merits of the case as regards the other offences it would be

apt to keep in perspective the law relating to framing of

charge and discharge of accused. In this regard learned

Senior Counsel has relied upon several decisions of the

Apex Court including the decisions rendered in the cases of

State of Bihar versus Ramesh Singh - (1997) 4 SCC 39

and Union of India versus Prafulla Kumar Samal -

(1979) 3 SCC 4. This Court finds that the principles laid

down in these two leading decisions have been either relied

upon or reiterated in all other decisions cited by Shri Rao.

Therefore, it is deemed proper to refer to the principles laid

down in the aforementioned two decisions only.

19. In the case of Ramesh Singh (Supra) the apex Court

held as follows:

<Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the notions of the accused or not. The standard of test and judgment which is

to be finally applied before according a finding regarding the great or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding time of the said whether the Court should proceed with the trial or not. If the evidence was the prosecutor proposes to reduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-

examination rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the file. An exhaustive list of the circumstances to indicate as

to what will lead to one conclusion of the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. In this case of PAN as to the guilt of or innocence of the accused of something like even at the conclusion of the trial, then, on the theory of benefit of doubt the cases to end in his acquittal. But if if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under Section 227.= (Emphasis supplied)

In Prafulla Samal (Supra), the Apex Court relied upon

the ratio in Ramesh Singh and summarized the principles

as follows:

<1.That the judge while considering the question of framing the charges section 227 of the code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prime facie case against the accused has been made out.

2. Where the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

3. The test to determine a prime facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By

and large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

4. That in exercising his jurisdiction under section 227 of the code the judge which under the present Court is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, it has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.= The facts of the case may now be referred to in

the above backdrop.

20. It has been forcefully argued by learned senior counsel

that all the allegations contained in the FIR as well as the

charge-sheet are fully covered by the judgment passed by

this Court whereby the same were held to be without basis

and therefore, continuance of the present proceedings

would tantamount to causing double jeopardy to the

petitioners.

21. In order to appreciate the above contention it would be

proper to first refer to the charge-sheet since the FIR

allegations have already been referred to herein before.

Reading of the charge-sheet reveals that the petitioner No.1

being the leaseholder started mining operations from the

year 2002 till 31.7.2009 and had extracted and dispatched

total quantity of 32058.207 MT of manganese ore. It is

stated that the Deputy Director, Mines, Joda, Keonjhar

submitted a letter dated 5.8.2008 to the Director, Mines

stating therein that Sri S.N. Dasmohapatra (Petitioner

No.1) has carried out illegal mining operation beyond his

leasehold area which partly comes within freehold and

partly within proposed grant of ML area in favour of M/s

RBT Ltd. It is further alleged as under:

<Shri Ganesh Mohanty, Jt. Director, Mines and Shri DK Mishra, Jt. Director, Mines visited the mines site, conducted joint inspection with the surveyor, revenue officials and submitted a Joint Inspection Report. In their report 4.7.2009 they have concluded that no illegal mining for manganese/iron ore and transport is being carried out over 96.568 hectares proposed for grant of ML to M/s RBT Ltd. So also they have submitted a false and misleading report on 17.9.2008 that 2109.987 MT of manganese ore have been raised from

inside the lease area of S.N. Dasmohapatra though the same has been seized by mining officials on 28.5.2008/4.6.2008 showing that these manganese ore have been raised by Sri Dasmohapatra from outside his lease area.

On 17.9.2008 that (i) the J pit is found completely inside the lease area, (ii) the M pit is found inside his lease area excepting two top non-productive benches, (iii) the JM pit is found almost outside the leasehold area, (iv) the most of fine manganese ore is from the JM pit and outside the lease area. Both the Jt. Directors intentionally concealed the fact that the lessee had illegally extracted manganese ore from outside his leasehold area by shifting boundary pillars, that he had constructed permanent structures outside his leasehold area and had made maximum extraction of manganese ore from outside his leasehold area and from the mining safety area and thereby deliberately suppressing the illegal mining activities carried out by the lessee and facilitated him to remove and transport illegally extracted manganese. Further in the report they have mentioned that the lease area is required to be surrounded by pucca boundary pillars after fixation of the reference point i.e. the village tri-junction point of village Barapada, Kolha Rudukela and Katasahi. During course of investigation it is found that there is no such legal sanction for naming the pits as J, M and JM and there is no such approval by any competent authority naming the pits in the name of J, M and JM. The so- called pits named as J and M inside M/s S.N. Dasmohapatra mining lease area are found to be non-operative and no extraction of manganese ore is carried out in the recent past from these pits. The pit which is called JM Pit is outside of the mining lease area of M/s S.N. Dasmohapatra and the manganese

ore shown dispatched by M/s S.N.

Dasmohapatra has been extracted from this JM pit and other pits illegally excavated by Sri SN Dasmohapatra in the forest land, safety zone, government land. These facts have been suppressed by Sri Ganesh Mohanty and Sri D.K. Mishra in their report in connivance with Sri S.N. Dasmohapatra.=

22. Thus, the sum and substance of the above allegation

is, extraction of manganese ore from outside the mining

leasehold area of M/s S.N. Dasmohapatra but deliberate

suppression of such fact by the two Jt. Directors in their

report dtd. 17.09.2008 and 04.7.2009. In the former report

they concluded that the quantity of ore extracted that is,

2109.987 MT was entirely from the leasehold area of M/s

S.N. Dasmohapatra. In the report dtd. 04.07.2009, they

had stated that no illegal mining for manganese/iron ore

and transport is being carried out over 96.568 hectares

proposed for grant of ML to M/s RBT Ltd. As against this,

it has been argued that the controversy in this regard stood

resolved by the judgment of this Court that there was no

extraction of ore from outside the mining leasehold area

and hence, could not have been re-agitated.

23. It would therefore, be proper to refer to the judgment

passed by the division bench of this Court in WP (c) No.

7998 of 2008. As already stated, having regard to the

factual controversy involved, this Court constituted a Joint

Verification Committee comprising of two Joint Directors of

Mines (Sri Ganesh Mohanty and Sri D.K. Mishra) and a

Senior Surveyor in the office of Deputy Director of Mines to

make a joint inspection of the leasehold area of the

petitioner and to submit report. Accordingly inspection was

made by the Committee and its report dtd. 17.09.2008 was

submitted to this Court on 26.9.2008. After going through

the report this Court held as follows:

<9. Be that as it may, since the matter required determination of factual controversy, this Court with consent of the petitioners and the opposite parties directed two high-level officers working in the office of the Director of Mines and a Senior Surveyor working in the office of opposite party No. 3 to make field/spot verification and submit the report. The report dated 17.9.2008 submitted after field verification pursuant to this Court9s order clearly reveals that 8J9 pit producing lump grade manganese ore is completely coming inside the leasehold area and the 8M9 pit except two non- productive benches producing lump grade manganese ore is also coming within the leasehold area. The said report nowhere speaks that 2109.987 Mts of manganese ore lump

stacked in the leasehold area and seized by the mining officer were raised from outside the leasehold area. Rather the said report further reveals that after the seizure, the lessee produced a fresh stock of 1068 MTs of lumps manganese ore from 8M9 pit and 8J9 pit within the leasehold area. The inspection report dated 18.4.2008 submitted by the Senior Surveyor and, in another instance, further verification conducted by Senior Inspector of Mines, Senior Surveyor and others on 21.7.2007 for the lump manganese and on 4.8.2007 for waste and manganese fines do not reveal that the seized lump manganese ore and waste manganese fines were raised from outside the leasehold area. On the other hand, the stock of lumps manganese ore and waste manganese were considered and raised from the leasehold area.

xxxxx xxxxx xxxxx

11. In the above fact situation, we are of the view that manganese over lump of 2109.987 MTs seized by opposite parties was raised from the leasehold area of the petitioners and, therefore, the seizure of manganese lump ore is not legal.=

Thus, in so far as the allegation of raising 2109.987

MTs of Manganese ore from outside the leasehold area of

the petitioner is concerned, the same was found to be

incorrect by this Court and therefore, the seizure thereof

was held to be illegal. Presently, prosecution has come

forward with the stand that the report dtd. 17.09.2008 was

incorrect and deliberately prepared in connivance of the

petitioner. The Joint Verification Report was prepared on

the basis of field/spot inspection held on 08.08.2008 and

22.02.2008. The report in so far as it relates to pits 8J9 and

8M9 was accepted by this Court but the matter is being

sought to be re-agitated on the ground that the said report

was incorrect. If such was the case, in all fairness, the

prosecution should have approached this Court seeking

modification/recall/review of its earlier order accepting the

report. The question is, not having done so, is it open to

the prosecution to rake up the issue again by questioning

the correctness of the report, which according to learned

Senior counsel amounts to over-reaching the order of this

Court, which had accepted such report.

24. Undisputedly, the report dated 17.9.2008 was accepted

by the Division Bench but then, such acceptance was

obviously because there was no material before the Court

to slow that the report was incorrect. In fact, even the

prosecution does not appear to have raised any question in

this regard at that stage. It is only upon investigation

conducted subsequently that the report was found to be

incorrect. Regardless, the acceptance of the report by the

Division Bench at that stage would obviously not foreclose

the right of the prosecution to re-agitate the issue if it is

actually found that the report was wrong. There can be no

estoppel in this regard. So, only because such fact was not

brought to the notice of this Court subsequently would not

operate as an absolute bar for the prosecution to allege and

prove that the report was incorrect or deliberately prepared

to suit the Petitioner9s case. It would be highly significant

to note that this Court, dealing with the Writ Petition filed

by the Petitioner (W.P.(C) No.842 of 2009) against

submission of charge-sheet, deemed it proper not to

interfere but granted liberty to the Petitioner to move the

Court below for discharge. This Court is therefore, unable

to persuade itself to accept that the report dtd.17.9.2008

being accepted by a division Bench of this Court in W.P.(C)

No.7998 of 2008 is the last word in the matter.

25. It has been further argued by learned Senior Counsel

that a demarcation was conducted between 25.04.2009 to

29.04.2009 and the joint verification was conducted on

05.05.2009 concluding that the demarcation is matching

with the lease map as accepted and agreed upon by all

parties present and hence, submission of charge sheet

alleging the contrary is wrong. This argument can be

considered only to be rejected, for this being basically a

factual issue can be proved/disproved through evidence

adduced during trial and not by skimming over the

materials on record at the threshold.

26. Coming to the next allegation, the charge-sheet states

as under:

<During Joint Physical Verification of Vigilance Department conducted on 18.7.2009 the proposed lease area of 96.568 Hect. in village Kolha Rudukela-Katasahi under Barbil Tahsil, Dist Keonjhar was demarcated. After demarcation, it is found that large-scale excavation and extraction of manganese ore has been done in the proposed mining lease area of M/s RB Thakur adjacent to the mining lease area of M/s S.N. Dasmohapatra and in a stretch of Govt. land (Forest land) in between the proposed mining lease area of RB Thakur Ltd and S.N. Dasmohapatra. The volume of illegal excavation in that area is calculated as 1. Excavation of quarry in freehold area (in no man9s area) 1,38,000 cum, 2. Excavation from RBT area - 28,870 cum, 3. Excavation from Mining Safety Area office of S.N. Dasmohapatra

- 7716.76 cum.

It is also found that Sri S.N. Dasmohapatra has constructed permanent houses beyond his lease area by entering into forest land. He had also installed one screening plant in the forest land i.e. inside the proposed lease area of M/s RBT Ltd. Thus, as per the estimation the quantity of 52,376 MT of manganese ore has been extracted illegally from the proposed lease area of M/s RBT Ltd, government forest land, safety area the approximate cost Rs.54,37,67,632/- at the average price of Rs.10,382/- per MT. Sri S.N. Dasmohapatra has shown dispatched the 32,058.207 MTs from M/s S.N. Dasmohapatra mines during the period from 2003 to 2009. The evidence of joint physical verification, analytical reports proved that the manganese ore so dispatched by Sri S.N. Dasmohapatra are not available in the M/s S.N. Dasmohapatra mines that have been extracted from the proposed mining area of M/s RBT Ltd, safety zone and no man9s land.=

This Court finds that these allegations were in

addition to the main allegation and were not before

the division Bench as rightly held by the Court

below. Even otherwise, considering the nature of the

specific accusations made, it is all the more

necessary why the case should go to trial as the

allegations can only be proved by adducing

evidence. There is nothing before this Court to

persuade it to believe that at least, a prima facie

case is not made out against the Petitioner.

27. Finally, the charge-sheet alleges as under:

<Sri S.N. Dasmohapatra has excavated 32,058.207 MT of manganese ore through M/s JM Mining and Trading Pvt. Ltd. of which his son Sri Srijoy Nandan Dasmohapatra is a MD. It is found that Sri S.N. Dasmohapatra has paid sales tax amounting to Rs.31,20,000/- by showing the gross turnover (GTO) to be Rs.9,69,01,942.48 though the actual cost of the manganese ore is Rs.33,28,28,305.00. Thus by showing the quality of rate of the manganese ore in the lower side, Sri S.N. Dasmohapatra has cheated the government exchequer to the tune of Rs.75.96 lacs (approx).=

This allegation again, was never agitated before or was

the subject matter in the case before the division Bench.

That apart, this Court, after noting the nature of the

allegations finds no justified or compelling reason to

thwart the prosecution from its attempt to prove the same

during trial.

28. At this stage it would be apt to refer to the observations

made by the Apex Court in the case of Chandra Deo

Singh vrs Prakash Chandra Bose - AIR 1963 SC 1430

that <Unless, therefore, the magistrate finds that the

evidence led before him is self-contradictory, or

intrinsically untrustworthy, process cannot be refused if

that evidence makes out a prima facie case.=

In view of what has been discussed hereinbefore,