1. By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Act”), the applicants have prayed to quash the first information report registered vide Khavda Police Station I – C. R. No.2/2005.
2. The Police Inspector, LCB, Bhuj-Kutch lodged the above referred first information report against the applicants herein and other co-accused stating that the Government of Gujarat had issued a notification in the year 1986 prohibiting the excavation of any stones, grit or any other minerals as per section 29 of the Wild Life Protection Act, 1972. That upon the information given by the informant that certain persons were illegally transporting minerals from Kala Dungar of Kutch Sanctuary on 31.1.2005, he had kept a watch. It is further alleged that while keeping watch on 31.1.2005, the first informant along with other police officers and panchas, stopped five vehicles which were carrying on minerals etc., for which the drivers did not have any license, receipt, bilty or any receipt of royalty. Therefore, janva jog entry was registered and investigation was initiated. During the course of investigation, it was revealed that the materials loaded in the vehicles which were dug out from the reserved site are used by the accused at their construction sites. Subsequently, the first informant with geologist surveyed the reserved site to ascertain the amount of the royalty of the stolen material. Thereafter, a list was prepared stating the construction work carried out by the contractors and after ascertaining the work done, it was calculated that the accused and other contractors have made an illegal gain of a huge amount to the tune of Rs.10.53 crores. Therefore, the present applicants – accused and other contractors have made an illegal gain of Rs.10.53 crores by illegally digging out stones, grits and minerals and thereby committed the offence punishable under sections 420, 379 and 120-B of the Indian Penal Code and under sections 29 and 51(1) of the Wild Life Protection Act, 1972.
3. Mr. Saurin Shah, learned advocate for the applicants invited attention to the provisions of section 55 of the Wild Life Protection Act, 1972 which provides that no court shall take cognizance of any offence under the Act, except on the complaint of any person other than those mentioned therein, to submit that the first informant does not fall within any of the categories enumerated therein. It was further submitted that assuming that the first informant falls within the clause (c) of section 55 of the Act, even then, no first information report could be lodged in respect of the offence under the Act and that only a complaint before the learned Magistrate would have been maintainable. Attention was also invited to the complaint lodged by the Range Forest Officer, Bhuj before the learned Judicial Magistrate First Class, Khavda under the provisions of sections 27(1), 29 and 51(1) of the said Act, to demonstrate that in connection with the said complaint, the applicants herein came to be discharged by the Sessions Court, Kutch at Bhuj vide order dated 23.1.2008 passed in Criminal Revision Application No.36 of 2007.
4. As regards the allegations in respect of the offence under section 379 IPC, the attention of the court was drawn to the note dated 9.4.2005 of the Superintending Engineer, Border Fencing Circle-I, C.P.W.D., Bhuj, a copy whereof has been endorsed to the DIG Police, Border Range, Bhuj, wherein it is recorded that there was no criminal intention on the part of the contractors and that the act was done by the contractors inadvertently without knowledge that the area under the reserved sanctuary. It is also recorded that the act of the contractors was inadvertent without any criminal intent, and hence, the FIR lodged by the police may be withdrawn. Referring to the provisions of section 378 IPC, which defines “theft”, it was submitted that for the purpose of attracting the said section, a person should have dishonestly taken any moveable property out of the possession of any person without that person's consent, whereas in the present case, no person has alleged that the minerals, stones etc. have been taken by the applicants herein without consent. In fact the Sarpanch who had permitted the applicants to remove the said material has also been arraigned as an accused. It was submitted that in any case, if any minor minerals have been excavated, the same would amount to an offence under the Mines and Minerals (Development and Regulation) Act, 1957, and that in view of the provisions of section 22 of the said Act, there is a bar against the court taking cognizance of any offence punishable under the said Act or any rules made thereunder except upon complaint in writing made by a person authorized in that behalf by the Central Government or the State Government. It was submitted that in the present case, the first informant was neither authorized under the provisions of the Wild Life Protection Act, 1972, nor under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 to lodge any complaint. According to the learned counsel assuming without admitting that the first informant was so authorized, he could at best have lodged a complaint before the appropriate court, however, no first information report could have been lodged in respect of the offences alleged. Reference was made to the communication dated 8.6.2004 of the Sarpanch, Dhrobana addressed to the Collector, Bhuj – Kutch, wherein it is stated that the contractors were removing the metals and sand for the purpose of making construction of army roads and that the said contractors were required to pay royalty. It is further stated therein that the government was directly deducting the royalty from the bills submitted by the contractors which were depriving the Gram Panchayat of its right to obtain royalty and thereby, causing immense loss to it. It was contended that in the aforesaid backdrop, the Sarpanch who had already drawn the attention of the Collector to the aforesaid fact, could not have been arraigned as an accused by invoking section 120B of the IPC.
5. Attention was also invited to the decision dated 30.3.2009 rendered by a Division Bench of this court in Special Civil Application No.2684 of 2009 and other cognate matters, in the case of the petitioners and other similarly situated persons wherein, in respect of the minerals excavated by the contractors for carrying out the works in respect of which the present first information report is lodged, the petitioners had challenged recovery of amount payable to the State Government by way of royalty and the court had by the said order, disposed of the petitions in terms of the directions issued in paragraph 6 thereof. It was submitted that pursuant to the said order, the amount payable towards royalty had already been paid and since the amount of interest was disputed, bank guarantees were submitted in respect thereof. Under the circumstances, no amount remains to be paid towards the minor minerals excavated by the applicants in respect of which the offence under section 379 IPC is alleged. It was, accordingly, urged that the first information report having been lodged without any authority of law and being even otherwise misconceived in law and on facts, deserves to be quashed and set aside. It was further submitted that when the necessary ingredients to constitute the principal offence of theft are not satisfied, the question of invoking section 120B IPC does not arise.
6. On the other hand, Mr. K. P. Raval, learned Additional Public Prosecutor opposed the application by submitting that pursuant to the above referred first information report, the investigating agency after carrying out investigation, has submitted a charge-sheet before the competent court which clearly shows that the offences alleged have been made out. Under the circumstances, no case is made out for quashing the first information report and the charge-sheet submitted pursuant thereto. According to the learned Additional Public Prosecutor, if at all the applicants herein are aggrieved by the filing of the charge-sheet; they can always avail of the appropriate remedy under the Code by seeking discharge before the appropriate court. It was, accordingly, urged that no case is made out so as to call for exercise of powers under section 482 of the Code.
7. A perusal of the first information report shows that the offences alleged are under section 379, 120-B, 420 IPC and section 29, 51(1) of the Wild Life Protection Act, 1972.
8. Insofar as the offence under sections 29 and 51 of the Wild Life Protection Act, 1972 are concerned, it may be necessary to refer to section 55 of the said Act, which reads thus:
55. Cognizance of offences.—No court shall take cognizance of any offence against this Act on the complaint of any person other than—
(a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or (aa) the Member-Secretary, Central Zoo Authority in mat- ters relating to violation of the provisions of Chapter IV-A; or
(b) the Chief Wild Life Warden, or any other officer au- thorised in this behalf by the State Government [sub- ject to such conditions as may be specified by that Government; or (bb) the officer-in-charge of the zoo in respect of violation of provisions of Section 38-J; or
(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the State Government or the officer authorised as aforesaid.
9. At this juncture it may be apposite to refer to the decision of the Supreme Court in State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 wherein the Supreme Court in the context of an offence under section 51(1) of the Wild Life (Protection) Act, 1972 has held thus:
13. What emerges from a perusal of these provisions is that cognizance of an offence under the “Act” can be taken by a court only on the complaint of the officer mentioned in Section 55. The person who lodged complaint dated 23-6-
1986 claimed to be such an officer. In these circum - stances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210(1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence insti- tuted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory function- ary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable.
10. Thus, insofar as the commission of the offence under sections 29 and 51(1) of the Wild Life Protection Act, 1972 is concerned, cognizance of an offence can be taken by the court only on the complaint of the officer mentioned in section 55 of the said Act. Adverting to the facts of the present case, indubitably the first informant does not fall within any of the above-referred categories enumerated under section 55 of the Act. Besides it has also come on record that one of the statutory functionaries mentioned in section 55 of the Wild Life Protection Act, who is authorised to file a complaint in respect of offences under the said Act had already lodged a complaint in the Court of the learned Judicial Magistrate First Class, Khavda, Kutch in respect of the offences under the said Act and at the culmination of the trial, by judgement and order dated 23.1.2008 passed by the learned Sessions Judge, Kutch – Bhuj, the applicants herein were discharged of the offences under section 27(1), 29 and 51(1) of the Wild Life Protection Act. Under the circumstances, the applicants having been tried and discharged for commission of the offences under the Wild Life Protection Act cannot again be prosecuted for the same offence as the same would be directly hit by Article 20(2) of the Constitution of India which mandates that no person shall be prosecuted and punished for the same offence more than once. Under the circumstances, apart from the fact that the first informant was not authorized to lodge the above referred first information report in respect of the offences under the Wild Life Protection Act, 1972, even otherwise, no such offence could have been registered as the applicants herein had already been prosecuted in respect of the said offences and had been discharged.
11. Adverting to the offence alleged to have been committed by the applicants under the Indian Penal Code, insofar as the offence under section 420 IPC is concerned, on a plain reading of the first information report in question, it is apparent that there is not even a whisper as regards any person have been cheated as contemplated under section 415 IPC so as to attract the provisions of the said section.
12. The only section that remains is section 379 IPC which makes provision for punishment for theft. At this juncture, it may be germane to refer to certain provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Mines and Minerals Act”). Section 3(e) of the said Act defines “minor minerals” to mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. From the allegations made in the first information report, it is apparent that the same pertain to excavation of minor minerals from the area called Kala Dungar which is a reserved wild life sanctuary. Section 4 of the Mines and Minerals Act says that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under the Act and the rules made thereunder. Sub-section (1-A) of section 4 of the Mines and Minerals Act postulates that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of the Act and the rules made thereunder. Section 21 of the Mines and Minerals Act makes provisions for penalties. Sub-section (1) thereof provides that whoever contravenes the provisions of sub-section (1) or sub-section (1-A) 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. Sub-section (4) thereof provides that 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 that behalf. Sub- section (5) of section 21 provides that 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. Section 22 of the said Act provides that no court shall take cognizance of any offence punishable under the Act or any rules made thereunder except upon complaint in writing made by a person authorized in that behalf by the Central Government or the State Government.
13. On a perusal of the provisions of the Mines and Mineral (Development and Regulation) Act, 1957, it is apparent that there is an in-built scheme which prohibits excavating of any mineral without the permission of the State Government or the Central Government, as the case may be. Section 21 thereof provides for penalties in respect of the contraventions of the provisions of the Act and also provides for action being taken by the authorities specifically empowered in that behalf. Section 22 of the Mines and Minerals Act bars taking cognizance of any offences punishable under the Act except upon complaint in writing made by a person authorized in that behalf by the appropriate Government. Thus, it is evident that in respect of any offence under the provisions of the Mines and Minerals Act, a complaint is required to be lodged by the authorized officer before the concerned court and it is only on a complaint lodge by such officer that the court can take cognizance of the offence.
14. A perusal of the allegations made in the first information report show that what is alleged therein is that stones, grit, minerals etc. have been unauthorisedly excavated from the reserved wild life sanctuary and have been taken away without payment of royalty. Thus, it is apparent that the offence alleged is an offence which would fall within the ambit of section 21 of the Mines and Minerals Act, in respect of which, a complaint can be lodged only by a person so authorized in that behalf by the Central Government or the State Government under section 22 of the Act.
15. There is an object behind the said provision inasmuch as, it would only be the authorities under the Mines and Minerals Act who would be competent to say as to whether or not the royalty has been paid in respect of the minor minerals excavated and as to whether or not the same was done after obtaining necessary permit under the Act. In case any loss is caused to the Government or any minor minerals have been unauthorisedly excavated, it is for the concerned person so empowered by the State Government or the Central Government, as the case may be, to lodge a complaint before the competent court. However, no first information report could have been registered in respect of an offence under the Mines and Minerals Act. In the present case, it is apparent that the alleged offence under the Mines and Minerals Act, has been given the colour of an offence under the Indian Penal Code and a first information report has been registered in that regard. It cannot be gainsaid that by merely giving the colour of an offence under the Indian Penal Code, the same would not change the nature of the offence in question which evidently is an offence under the Mines and Minerals Act. The first informant, therefore, had no authority to lodge a first information report or even a complaint in respect of the offence in question. The first information report as well as all proceedings pursuant thereto, therefore, stand vitiated as being in contravention of the provisions of the Mines and Minerals Act as well as having been registered at the instance of a person who had no authority of law to lodge such a complaint. Under the circumstances, continuance of the proceedings against the applicants would amount to an abuse of the process of the court warranting invocation of the inherent jurisdiction of this court under section 482 of the Code.
16. For the foregoing reasons, the application succeeds and is, accordingly, allowed. The first information report registered vide Khavda Police Station I – C. R. No.2/2005 and the charge- sheet filed pursuant thereto, which has been registered as Criminal Case No.3767 of 2008, are hereby quashed and set aside. Rule is made absolute accordingly.
[HARSHA DEVANI, J.] parmar*