Jharkhand High Court
Manish Khemka vs State Of Jharkhand & Ors on 16 April, 2009
Equivalent citations: 2009 CRI. L. J. 3770, 2009 (2) AIR JHAR R 1022, (2009) 78 ALLINDCAS 643 (JHA), 2009 (78) ALLINDCAS 643, (2009) 2 EASTCRIC 535
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.226 of 2008
Manish Khemka ..............................Petitioner
VERSUS
State of Jharkhand and others......Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Ananda Sen
For the State : Mr. R.R.Mishra
Reserved on 18.3.200 9 Pronounced on 16.4.09
8. 16.4.09This application under Article 226 of the Constitution of India has been filed for quashing the first information report of Jagarnathpur P.S. case no.36 of 2008 (G.R No.202 of 2008) instituted under sections 379/420 of the Indian Penal Code and also under sections 8/9 of the Jharkhand Minerals Dealers' Rule read with Mines and Minerals (Development and Regulation) Act, 1957.
The case of the prosecution is that one Raghav Nandan Prasad, District Mining Officer, Chaibasa on receiving information relating to illegal storage of iron ores came along with other Mining Officials at Mauza- Karanjia and found iron ore fines/blue dust stored at several places over Hatgamharia-Jaitgarh Road. On enquiry, it could be known that iron ores taken from the mines situated in the State of Orissa was meant to be transported to Haldia Port still it was stored at Mauza Karanjia which under the challan was not permissible and thereby transporters including the petitioner at whose instance iron ores had been stored have been alleged to have committed offence under sections 8 and 9 of the Jharkhand Minerals Dealers' Rule, 2007 read with Mines and Mineral (Development and Regulation) Act and that apart, they 2 have also been alleged to have committed offence under sections 379/420 of the Indian Penal Code.
On the basis of the information given to the Jagarnathpur police, a case was registered as Jagarnathpur Police case no.36 of 2008 under sections 379/420 of the Indian Penal Code and also under Rules 8 and 9 of the Jharkhand Minerals Dealers' Rule read with Mines and Minerals (Development and Regulation) Act.
Learned counsel appearing for the petitioner submits that Jharkhand Minerals Dealers' Rule, 2007 was promulgated by the State of Jharkhand in exercise of power conferred by Section 23 (C) (1) and 23(2)(c) of the Mines and Minerals (Development and Regulation) Act, 1957 in order to regulate mining, transportation, storage of minerals and mineral products and further Rule 3 prohibits any person from engaging himself in any transaction of buying and selling any minerals without being registered and similarly Rule 6 prohibits any person from transporting any minerals without obtaining transport challan. Further Rule 8 is a penal provision prescribing punishment in case any person contravenes any of the provision of rule or buys or sells or stores minerals.
Learned counsel in view of the aforesaid provisions submits that the allegations upon which the case has been lodged do fall within the purview of special legislation, namely, Jharkhand Minerals Dealer's Rule, 2007 and Mines and Minerals (Development and Regulation) Act, 1957 and in that event the cognizance of such offence in terms of the provision as contained in Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 can be taken by the court only upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government and therefore, any prosecution initiated on the 3 basis of the first information report would be quite illegal and hence, first information report is fit to be quashed.
It be stated that in spite of opportunity being given to the State, no counter affidavit has been filed.
Having heard learned counsel appearing for the parties, it appears that on finding iron ore stored at a place at the instance of the accused without there being any authority, a case was registered under sections 420/34 and section 8/9 of the Jharkhand Minerals Dealers' Rule read with Mines and Minerals (Development and Regulation) Act but the question falls for consideration is as to whether in view of the special law, namely, Jharkhand Minerals Dealers' Rule, 2007 and also Mines and Minerals (Development and Regulation) Act, case lodged under the penal code would be competent ? For adjudicating this issue one needs to take notice of the definition of the 'special law' as has been defined under section 41 of the Indian Penal Code which reads as follows:
"Special law- A "special law" is a law applicable to a particular subject."
Obviously " Special law" means the provision of law which is not applicable generally but which applies to a particular or specified subject or class or subject. In other words where there is a specific punishment provided in a special Act it takes precedence over of the general punishment under the penal code and that where there is no specific punishment provided under special law, general law of the land, under the penal code comes into operation if the requirements under any section thereof are satisfied. In that view of the matter, one needs to examine as to whether Mines and Minerals (Development and Regulation) Act and also Jharkhand Minerals Dealers' Rule do prescribe punishment for illegal extraction, transportation, storage etc. of the minerals. In this 4 respect one can take notice of Rule 8 of Jharkhand Minerals Dealers' Rule, 2007 which reads as follows:
Penalties - (1) Any person, who contravenes any of the provision of these rules or buys or sells or stores minerals except under and in accordance with the dealer's registration or who transports the minerals except as mentioned in the transport challan shall be punishable with :
(a) A fine of Rs.5000/- or imprisonment for a term which may extend to one year or with both.
(b) In the case of a continuing contravention, with an additional fine which may extend to fine hundred rupees for every day during which such contravention continues after conviction for the fist such contravention. (2) Any person, who buys or sells minerals except under and in accordance with the registration, shall be punishable with a fine which may extend to Rs.5000/- or imprisonment for a term which may extend to one year or with both. (3) Any person, who transports minerals except to the destination specified in transport challan, shall be punishable with an imprisonment upto a term of one year or fine which may extend to Rs.5000/- or with both.
(4) Whoever, intentionally obstructs the competent officer or any other officer in performing his duties (in imposing penalties etc.) under these rules, shall be punishable with an imprisonment for a term which may extend to 6 months or fine which may extend to Rs.5000/- or with both."
From perusal of the aforesaid provision, it is evidently clear that it does prescribe punishment in case of storage and transportation of minerals in contravention of the provision of the Jharkhand Minerals Dealers' Rule, 2007. That being the position, the provision contained in special legislation will certainly take precedence over the general punishment prescribed under the penal code and as such, provision of penal code would have no application in the matter of transportation, storage, transaction etc. of the minerals in contravention of the provision of the Act or rule made thereunder.
That apart, procedure for initiation of the penal action in terms of the said rule has also been prescribed under section 22 of 5 the Mines and Minerals (Development and Regulation) Act, 1957 which reads as follows:
"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 authorized in this behalf by the Central Government or the State Government.
Thus, it appears that law under the provision of the Mines and Minerals (Development and Regulation) Act or Rule made thereunder such as Jharkhand Minerals Dealers' Rule, 2007 can be set at motion only through a complaint that too in writing made by the person authorized.
The word complaint has been defined under clause (d) of section 2 of the Code of Criminal Procedure which reads as follows:
(d)" complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report.
Explanation - A report may by a police officer in a case which disclosed after investigation, the commission of a non-cognizable offence shall be deemed tobe a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
Regard being had to the definition as noticed above if one makes a complaint in writing then it needs to fulfill following conditions:
(1) it must be made to a Magistrate ;
(2) it must be made with a view to his taking action under the Code;
(3) it must contain an allegation that some person, whether known or unknown, has committed an offence (4) it must not be the report of a police officer [Explanation to clause (d)].
Admittedly, so far this case is concerned, complaint has never been made to the Magistrate by the informant, though under section 22 of the Mines and Minerals (Development and 6 Regulation) Act, 1957, any prosecution under that Act or Rules made thereunder such as, Jharkhand Minerals Dealers' Rule, 2007 needs to be set at motion by filing complaint by an authorized person before a Magistrate. Further any investigation, enquiry or trial of the offences under the aforesaid Act and the Rules needs to be dealt with in accordance with procedure laid down under the Special Law which would have precedence over the procedure laid down under the general law in view of the mandate of section 4 of the Code of Criminal Procedure which reads as follows:
" Trial of offences under the Indian Penal Code and other laws:
(1) " All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
Having noticed all the provisions, as mentioned above, it can conclusively be said that offences relating to storage, transportation, transaction etc. of the minerals in contravention of the provision of the Mines and Minerals (Development and Regulation) Act, 1957 and also the Rules of Jharkhand Minerals Dealers' Rule, 2007 came within the purview of the said Act and Rules and as such, any investigation, inquiry or trial shall be governed by the Special Law and not under the general law. Therefore, any prosecution launched by the informant not by way of complaint but by way of information to the police is quite illegal. In other words, instant prosecution can be said to be nonest in the eye of law and hence, it is not sustainable in law. 7
Accordingly, the first information report of Jagarnathpur P.S. caseno.36 of 2008 is hereby quashed so far petitioner is concerned. Consequently, this application is allowed.
(R.R.Prasad, J.) ND/