This application under Section 482 Cr.P.C. has been filed with the prayer to allow this application and quash the impugned charge-sheet No. 76/14 dated 28.9.2014, Police Station Naraini, District Banda in connection with Case No. 328/IX/16, under Section 379 IPC, 3/70 Mines and Minerals Act & 4/21 Environment Protection Act, P.S. Naraini, District Banda on the basis of which learned Court below has taken cognizance on 26.4.2016 and issued summons to the applicants. It is further prayed that proceeding in the aforesaid case be stayed.
It is submitted by the learned counsel that respondent no. 2 lodged a First Information Report on 14.6.2014 against the applicants in Case Crime No. 87 of 2014, under Section 379 IPC, 3/70 Mines and Minerals Act and 4/21 of Environment Protection Act, Police Station Naraini, District Banda, on the basis, that applicants were removing the mines and minerals from the riverbed and collected on the field of the village. After investigation charge-sheet was submitted on 28.9.2014 and court below has taken cognizance and issued summons to the applicants on 26.4.2016.
It is submitted by the learned counsel that when offence under the Mines and Minerals (Development and Regulation) Act (hereinafter referred to as the "M.M.D.R. Act") excludes the provisions of Indian Penal Code, cognizance under both, Indian Penal Code as well as M.M.D.R. Act is illegal and it has been vehemently argued that M.M.D.R. in Special Act will prevail over general law that is IPC and consequently Section 379 IPC does not come into the picture when illegal mining is being alleged whereas learned Magistrate has taken cognizance on the police report under the Indian Penal Code as well as Mines and Minerals Act which is liable to be quashed.
In support the learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in the case of State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 which was decided alongwith the other criminal appeals. The observation made by the Hon'ble Apex Court is reproduced below:-
"71. From a close reading of the provisions of 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, gravels and other minerals from the river, which is the property of the State, out of 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 person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure.
72. 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 Indian 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 river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., on receipt of the police report, the Magistrate having 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 MMRD 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 concerned Magistrates to proceed accordingly."
Further reliance placed by the learned counsel upon another decision of Jharkhand High Court, Ranchi in the case of Prasuram Bellani and others Vs. The State of Jharkhand decided on 31.3.2015.
Learned Judge of Jharkhand High Court also taking clue on the above referred Hon'ble Apex Court judgment came to the conclusion that there is no illegality in the impugned order dated 11.7.2001 passed by learned Additional Chief Judicial Magistrate, Pakur P.S. Case No. 311 of 2000, corresponding to G.R. No. 593 of 2000, so far it took cognizance for the offence under Sections 467, 468, 420 and 379 IPC against the petitioners. However, the cognizance of the offence under the Special Act relating to Mines and Minerals was found to be unsustainable in the eyes of law and that portion was set aside.
With the above observation of Jharkhand High Court as well as that of Hon'ble Apex Court, it is clear that Section 379 IPC is not precluded whenever any theft is being made in regard to mining in the riverbed that is damaging the Ecosystem and the safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
Specific observation of the Apex Court in paragraph 70 of the judgment is necessary to be produced which runs as follows:
"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 authorized 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 authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist 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 sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code."
As per observation of the Hon'ble Apex Court, police cannot insist the Magistrate for taking congnizance under the M.M.D.R Act and for that complaint is to be filed before the Magistrate by the competent authority. However, Paragraph 71 of the Judgemnt of the Hon'ble Apex Court gives liberty to the police in case of removal of mines and minerals against a person who is without any lease or licence or any authority entered into river and extracts sand, gravel and other minerals in removing or transporting these minerals in a clandestine manner with an intent to remove from the possession of the State and consequently is liable to be punished for committing such offence under Sections 378 and 379 IPC.
So far the cognizance taken by the learned trial court under the IPC is concerned, it cannot be said to be illegal or without authority but so far as the cognizance taken under the M.M.D.R. Act that is under the Special Act relating to mines and minerals is concerned, cannot be sustained in the eyes of law and accordingly only that portion of the impugned order is hereby set aside. So far as the cognisance under rest of sections is concerned that cannot be stayed or cannot be interfered and court below is directed to proceed accordingly.
The application under Section 482 Cr.P.C. is disposed of accordingly.
Order Date :- 4.8.2016 Ranjeet Sahu