The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV NO.406 OF 2018 (From the judgment dated 21st April, 2018 passed by learned in VGR Case Special No.35/2009(T.R. Case No.33/2011) Judge, Vigilance, Keonjhar 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 CRLREV No.406 of 2018 Page 2 of 35 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 CRLREV No.406 of 2018 Page 3 of 35 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. CRLREV No.406 of 2018 Page 4 of 35
Facts
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 CRLREV No.406 of 2018 Page 5 of 35 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 CRLREV No.406 of 2018 Page 6 of 35 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
Legal Reasoning
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 CRLREV No.406 of 2018 Page 7 of 35 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, CRLREV No.406 of 2018 Page 8 of 35 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 CRLREV No.406 of 2018 Page 9 of 35 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. CRLREV No.406 of 2018 Page 10 of 35 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. CRLREV No.406 of 2018 Page 11 of 35 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 CRLREV No.406 of 2018 Page 12 of 35 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 CRLREV No.406 of 2018 Page 13 of 35 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 CRLREV No.406 of 2018 Page 14 of 35 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 that any this Act may provide contravention be shall thereof 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 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 (1) of section 4, such sub-section trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by the State Government or such authorised authority that Government and during which day CRLREV No.406 of 2018 Page 15 of 35 any tool, 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 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, 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 CRLREV No.406 of 2018 Page 16 of 35 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 CRLREV No.406 of 2018 Page 17 of 35 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:- the our that giving the offence under <After thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-(cid:224)- vis the Code of criminal Procedure and the Penal Code, we are of the definite ingredients opinion constituting 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 therefore, sustained overruled. these criminal appeals are disposed of with the Magistrates to a direction concerned to proceed accordingly.= law and, Consequently, in CRLREV No.406 of 2018 Page 18 of 35 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 CRLREV No.406 of 2018 Page 19 of 35 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: the prosecutor proposes <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 to adduce are not to be meticulously to be judged. Nor 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 is any weight CRLREV No.406 of 2018 Page 20 of 35 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 for is no 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 if fully accepted the accused even before in cross- is challenged it 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 sufficient ground CRLREV No.406 of 2018 Page 21 of 35 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 in his of doubt the cases to end 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 the not a prime facie case against 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 CRLREV No.406 of 2018 Page 22 of 35 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 the post office or a mouthpiece of 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. CRLREV No.406 of 2018 Page 23 of 35 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 false and also misleading report on 17.9.2008 that 2109.987 MT of manganese ore have been raised from they have submitted a CRLREV No.406 of 2018 Page 24 of 35 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 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 to remove and CRLREV No.406 of 2018 Page 25 of 35 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. CRLREV No.406 of 2018 Page 26 of 35 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 field dated verification pursuant to this Court9s order clearly reveals that lump grade 8J9 pit producing manganese ore is completely coming inside the leasehold area and the 8M9 pit except two non- productive benches producing lump grade is also coming within the manganese ore leasehold area. The said report nowhere speaks that 2109.987 Mts of manganese ore lump 17.9.2008 submitted after CRLREV No.406 of 2018 Page 27 of 35 the that after the seizure, stacked in the leasehold area and seized by the mining officer were raised from outside the leasehold area. Rather the said report further reveals 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 In the above fact situation, we are of the 11. 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 CRLREV No.406 of 2018 Page 28 of 35 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 CRLREV No.406 of 2018 Page 29 of 35 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
Decision
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 CRLREV No.406 of 2018 Page 30 of 35 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: it is that found conducted on 18.7.2009 <During Joint Physical Verification of Vigilance the Department proposed lease area of 96.568 Hect. in village Kolha Rudukela-Katasahi under Barbil Tahsil, demarcated. After Dist Keonjhar was demarcation, 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. CRLREV No.406 of 2018 Page 31 of 35 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 CRLREV No.406 of 2018 Page 32 of 35 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 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).= the gross turnover (GTO) 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 CRLREV No.406 of 2018 Page 33 of 35 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, this Court is of the considered view that the case projected by the prosecution cannot be thrown away as being intrinsically untrustworthy. 29. From a conspectus of the analysis of facts and law and the discussion made thereon, this Court is of the considered view that the case of the prosecution against the Petitioner is not one that can be scuttled at the threshold by discharging him. On the contrary, the materials on record lead the Court to form a presumptive opinion regarding commission of the offences by the Petitioner, strong enough to justify a full-fledged trial. Resultantly, the Revision is disposed of quashing the impugned order in so far as it relates to Section 21 of the MMDR Act but in so far as the other offences are concerned, the impugned order stands confirmed. The case CRLREV No.406 of 2018 Page 34 of 35 before the trial Court being of the year 2010, the same be expedited and concluded as early as possible, preferably within a year. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera CRLREV No.406 of 2018 Page 35 of 35 CRLREV No.406 of 2018 Page 36 of 35 CRLREV No.406 of 2018 Page 37 of 35