Uttarakhand High Court
Pushkar Singh Mehra & Another ... vs State Of Uttarakhand And Another on 29 September, 2021
Equivalent citations: AIRONLINE 2021 UTR 672
Author: N.S. Dhanik
Bench: N.S. Dhanik
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 440 of 2020
(Under Section 482 of Cr.P.C.)
Pushkar Singh Mehra & another .....Applicants
Versus
State of Uttarakhand and another ......Respondents
Mr. R.S. Sammal, learned counsel for the applicants.
Mr. A.K. Sah, learned Deputy Advocate General for the State.
Despite sufficient service, none turns up on behalf of respondent no. 2.
Judgment Reserved: 23.09.2021
Judgment Delivered: 29.09.2021
Hon'ble N.S. Dhanik, J.
By means of this application under Section 482 Cr.P.C., applicant has prayed for quashing the charge-sheet dated 28.12.2019; cognizance and summoning order dated 17.02.2020 as well as the entire proceedings of Criminal Case No. 556 of 2020, "State v. Mohan Singh & others" under Sections 379 & 411 IPC, pending in the Court of learned Judicial Magistrate, Nainital.
2. Facts, in brief, are that a team comprising of government officials was carrying out raid with respect to transportation riverbed 2 material. During the raid, a Dumper Bearing No. UK01CA0705 was detained near Village Tallagaon. It is further stated that during the checking, the driver of the vehicle namely Mohan Singh showed the papers of the transportation of mined material wherein it was found that the vehicle was carrying more than the mined material as shown in the papers. Thereafter, the dumper was taken to a nearby stone crusher for weighing. It is further stated that the weight of the mined material being carried was found to be 119.45 quintal whereas the dumper only had the permit of 46 quintal, thus there was a theft of 53.45 quintal of mined minerals. The mined material was being transported from Ma Girja Stone Crusher. Accordingly, the instant FIR has been lodged.
3. Pursuant to the FIR, investigation was made and the police submitted the charge-sheet against the applicants and the other co-accused. Thereafter, the Court below has summoned the applicants to face the trial for the aforementioned offences.
4. Learned counsel for the applicants contended that the applicants are the owners of the stone crusher; their work in the establishment entails managerial and organizational work with respect to the affairs and running of the stone crushers and they are 3 not involved in the day to day running of the establishment. He further contended that the summoning order issued by the learned trial court is an abuse of process of the law as there is no material or allegations or substance against the applicants. He also submits that the owner of the alleged dumper filed an application before the Judicial Magistrate, Nainital for release of the said vehicle and the learned Magistrate vide order dated 04.11.2019 allowed the said application and released the vehicle in favour of the owner, namely, Shivraj Banola on the certain conditions and subsequently on 07.11.2019, the amount of Rs. 26,000/- was also deposited as challan and thereafter, upon execution of the bond and the formalities thereon, the alleged dumper has been released.
5. Learned counsel for the applicants also contended that it is not a matter of extraction of stone chips from the riverbed but it is the matter of overloading of stone chips purchased from the stone crusher of the applicants on payment of cost, hence the offence under Section 379 & 411 IPC is not made out against the applicants. Learned counsel has relied upon the judgment of the Hon'ble High Court of Jharkhand in the case of Tirath Singh v. State of Bihar; reported in (2013) 2 AIR Jhar R 90.
46. Learned counsel for the applicants made a reference to the provision of Section 22 of The Mines and Minerals (Development and Regulation) Act, 1957, which is quoted hereunder:
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.
7. Learned State Counsel submits that the learned trial court has rightly taken the cognizance against the applicant as there is specific allegation against the applicants in the FIR regarding the theft of mining mineral and the weight of mining minerals being carried was found to be 119.45 quintal where as the dumper only had permit for 46 quintal, thus there was a theft of 53.45 quintal of mining minerals.
8. The Hon'ble Apex Court in the case of State (NCT of Delhi) v. Sanjay along with connected cases; reported in (2014) 9 SCC 772 has observed in its para 69, 70, 71, 72 & 73 which is quoted hereinbelow:
69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected 5 by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens riverbeds, 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.
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.
71. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
72. 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 6 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.
73. 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.
9. The principal question which arises for consideration in the instant petition is whether the owner of the stone crusher is liable to be punished under Section 379 IPC.
10. In the instant case, applicants are the owners of stone crusher for excavation of 7 minerals on payment of royalty. The allegations made against the applicants in the FIR was that they had committed theft of sand from rivers but it is not a matter of extraction of stone chips from the riverbed but it is the matter of overloading of stone chips purchased from the stone crusher of the applicants on payment of cost, hence offence under Section 379 IPC is not made out against the applicants.
11. Having heard the contentions of learned counsel for the parties and considering the facts and circumstances and the legal proposition as discussed hereinabove, this is a fit case where interference is required under Section 482 Cr.P.C. as no prima facie case is made out against the applicants, therefore, the present criminal miscellaneous application under Section 482 of Cr.P.C. is allowed. Cognizance and summoning order dated 17.02.2020 as well as the entire proceedings of Criminal Case No. 556 of 2020, "State v. Mohan Singh & others" under Sections 379 & 411 IPC, pending in the Court of learned Judicial Magistrate, Nainital are hereby quashed qua the applicants only. Inform the Court concerned accordingly.
(N.S. Dhanik, J.) 29.09.2021 AK