Hazaribag v. The State of Jharkhand
Case Details
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 P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State
Legal Reasoning
relies upon the Judgment of a coordinate Bench of this Court in the 2 Cr.M.P. No.2369 of 2021 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. 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. 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.” 7. 8. 3 Cr.M.P. No.2369 of 2021 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 4 Cr.M.P. No.2369 of 2021 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 5 Cr.M.P. No.2369 of 2021 Mines and Minerals (Development and Regulation) Act is quashed and set aside. 12. 13. 14. 15. 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. 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.
Arguments
: Mr. Awnish Shankar, Advocate : Mr. P.K. Chatterjee, 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 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 1 Cr.M.P. No.2369 of 2021 4. 5. under the Mines and Minerals (Development & Regulation) Act and abandons other prayer. 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. 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
Decision
This criminal miscellaneous petition is disposed of accordingly. The interim order granted earlier stands vacated. High Court of Jharkhand, Ranchi Dated the 6th May, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 6 Cr.M.P. No.2369 of 2021