East Singhbhum v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2753 of 2023 Manish Kumar Shah @ Manish Kumar Sah, aged about 58 years, son of Sri Ramgopal Shah, resident of Jadugora Road near Bank of India, Sunder Nagar, P.O. and P.S. –Sunder Nagar, Town –Jamshedpur, District –East Singhbhum. .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State
Legal Reasoning
: Mr. Shankar Lal Agarwal, Advocate : Ms. Ayushi, Advocate : Mr. Vineet Kr. Vashistha, Spl. P.P. ….. By the Court:- 1. 2. Heard the parties. 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 order dated 13.05.2020, passed in G.R. Case No. 139 of 2020 arising out of Jadugora P.S. Case No. 34 of 2019 by the learned Additional Chief Judicial Magistrate, Ghatsila whereby and where under, the learned Additional Chief Judicial Magistrate, Ghatsila has taken cognizance for the offences punishable under Section 414 of the Indian Penal Code as well as Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004 as amended by Rule, 2017, Section 4/21 of the Jharkhand Mines and Minerals (Development and Regulation) Act and Rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rule, 2017. 1 Cr.M.P. No.2753 of 2023 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 only, so far as it relates to the offences punishable under the Mines and Minerals (Development & Regulation) Acts and the Rules made there under. 4. The brief fact of the case is that the petitioner is the owner of the vehicle which was involved in illegal transportation of sand. The allegation against the petitioner is that he was assisting in concealment of stolen property and committing the offences under the provisions of the Mines and Minerals (Development and Regulation) Act and Rules. 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 2 Cr.M.P. No.2753 of 2023 ought not have taken cognizance for 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 and the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rule, 2017. 6. In support of his contention, the learned counsel for the petitioner relies upon the Judgment of 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.” As also 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, para -70 of which reads as under:- “70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted 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 offence under the Penal Code.” 3 Cr.M.P. No.2753 of 2023 7. Hence, it is submitted that the portion of the order dated 13.05.2020 by which the learned Additional Chief Judicial Magistrate, Ghatsila has taken cognizance of the offences under the Mines and Minerals (Development and Regulation) Act and the Rules made there under be quashed and set aside. 8. The learned Spl. P.P. on the other hand vehemently opposes the prayer and submits that since Section 22 of the Mines and Minerals (Development and Regulation) Act starts without any non-obstante clause, so the original jurisdiction of the Magistrate under Section 190 (1) (d) of the Code of Criminal Procedure has not been affected and the Magistrate can take cognizance of the offences also. 9. In this respect, the learned Spl. P.P. refers to para-72 of the Judgment of Hon’ble Supreme Court of India in the case of State (NCT of Delhi) Vs. Sanjay (supra). It is next submitted by the learned Spl. P.P. that it is the duty of the State Police to prevent the commission of the cognizable offences in view of Section 149, 152 and 154 of the Indian Penal Code. It is then submitted by the learned Spl. P.P. that the cognizance is a pre-trial stage, so wrong mentioning of the penal provision of an offence will not debar the Magistrate from framing appropriate charge at the appropriate time. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 10. Having heard the submissions made at the Bar and after going through the materials in the record, in view of the principle of law settled both in the case of Jayant and Others Vs. State of Madhya Pradesh and State (NCT of Delhi) Vs. Sanjay (supra), as already 4 Cr.M.P. No.2753 of 2023 referred to above in the foregoing paragraphs of the Judgment, this Court has no hesitation in holding that the law is well settled that cognizance of the offences punishable under the penal provisions of the Mines and Minerals (Development and Regulation) Act or any Rules made thereunder, 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), 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; and the Magistrate can take cognizance of such offences; in exercise of the jurisdiction vested upon the Magistrates under section 191 (1) (d) of the Code of Criminal Procedure. 11. Now coming to the facts of the case, undisputedly the cognizance has been taken by the learned Magistrate for the offences punishable under the Mines and Minerals (Development and Regulation) Act and the Rules made thereunder without a complaint in writing being made by the person authorized in this behalf by the Central Government or the State Government , directly to the Magistrate concerned rather upon lodging of the F.I.R with the police on receipt of the report under section 173 of the Code of Criminal Procedure, 5 Cr.M.P. No.2753 of 2023 the learned Additional Chief Judicial Magistrate, Ghatsila has committed gross illegality by taking cognizance of the offences punishable under the penal provisions of the Mines and Minerals (Development and Regulation) Act and the Rules made thereunder. 12. Accordingly, the order taking cognizance dated 13.05.2020, passed 13. 14. in G.R. Case No. 139 of 2020 arising out of Jadugora P.S. Case No. 34 of 2019 by the learned Additional Chief Judicial Magistrate, Ghatsila in respect of the offences punishable under the Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004 as amended by Rule, 2017, Section 4/21 of the Jharkhand Mines and Minerals (Development and Regulation) Act and Rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rule, 2017 is quashed and set aside. It is made clear that the cognizance taken in respect of Section 414 of the Indian Penal Code is maintained. 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 the Mines and Minerals (Development and Regulation) Act or the Rules made thereunder will not debar the learned trial court to frame charges for any other offences punishable under any other penal provisions of law other than the penal provisions as mentioned in the Mines and Minerals (Development and Regulation) Act and the Rules made thereunder that the appropriate stage of the case, if material in this respect is available in the record. 6 Cr.M.P. No.2753 of 2023 15.
Decision
This criminal miscellaneous petition is disposed of accordingly. High Court of Jharkhand, Ranchi Dated the 1st May, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 7 Cr.M.P. No.2753 of 2023