Jharkhand High Court
Sayed Mumtaz Alam vs State Of Jharkhand on 16 September, 2009
Equivalent citations: 2010 CRI. L. J. (NOC) 597 (JHAR.), 2010 (1) AIR JHAR R 550 (2009) 4 JCR 681 (JHA), (2009) 4 JCR 681 (JHA)
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 672 of 2006
Sayed Mumtaz Alam ... ... Petitioner
Vs.
The State of Jharkhand ... ... Opposite Party
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner : Mr. Rajan Raj, Advocate
For the Opp. Party : Mr. M.B. Lal, Advocate
C.A.V. ON 04.09.2009 Delivered On 16/09/2009
6/ 16/09/2009This is an application for quashing the entire criminal prosecution in connection with Topchanchi P.S. Case No. 144 of 2005 corresponding to G.R. No. 3967 of 2005 pending in the court of Chief Judicial Magistrate, Dhanbad.
2. The case of prosecution in short is that on 26.09.2005, police received secret information that a truck bearing registration No. BHB-4890 loaded with illicit coal is standing in front of Sahu Filling Petrol Pump at G.T. Raod. On that information, police intercepted the said truck and verified the documents regarding the coal loaded on it. The driver of the said truck disclosed that the said coal was loaded on the truck by one Shankar Singh. It is further alleged that the said truck belongs to this petitioner. The driver produced some papers regarding the coal, which reveals that the said coal was loaded on the truck from Maa Bhawani Fuel Industries, Jamtara, Jamuria District- Burdwan. However, when the driver of the truck was asked to show the place from where the said coal was loaded, he had shown another place i.e. Maa Mutai Chandi Fuel Industries, Shyamdih, P.S.-Salanpur, District-Burdwan. Thus, police suspected that the coal in question is a stolen property, therefore, the present case instituted under Sections 414, 420/34 of the I.P.C. and also under Section 21 (1) of MMDR Act, 1957.
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3. It is submitted by learned counsel for the petitioner that as per Section 22 of the Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter referred as MMDR Act), no court can take cognizance of any offence punishable under the MMDR Act except upon complaint in writing made by a person authorize in this behalf by the Central Government or the State Government. Accordingly, it is submitted that if the learned Magistrate cannot take cognizance of the offence on the basis of charge sheet submitted by a police officer, then in that case the investigation undertaken by the police on the basis of present F.I.R. is futile and fruitless exercise. It is submitted that with regard to the transportation of coal which is a mineral within the meaning of MMDR Act, no offence under the I.P.C. is made out, therefore, the present prosecution against the petitioner is an abuse of the process of the Court.
4. On the other hand, learned Additional P.P. opposed the submission raised by learned counsel for the petitioner and submits that Section 22 of MMDR Act prohibits the court from taking cognizance, it does not prohibit the police officer from investigating the case. As per Section 156 of the Cr.P.C., the police have power to investigate a cognizable case without any sanction from Judicial Magistrate. Under the said circumstance, at this stage, it is not in the interest of justice to quash the F.I.R. and thereby put an embargo on the hands of police from investigating a case. It is further submitted that the offence under MMDR Act only attracted if somebody do mining of coals and transport or store the said minerals in contravention of provisions contained under Section 4 of MMDR Act. It is submitted that there is nothing in MMDR Act which provides any punishment to a person if he commit theft of coal from any other place and transport the stolen coal. In case of theft of coal offence
-3- [Cr.M.P. No. 672 of 2006] under Section 414 of the I.P.C. is made out. Accordingly, it is submitted that there is no illegality in lodging of F.I.R. against the petitioner.
5. Having heard the submission, I have gone through the record of the case.
6. Section 22 of the MMDR Act runs 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."
7. Thus, from the plain reading of Section 22 of the MMDR Act, it is apparent that it prohibits a court from taking cognizance except upon a complaint in writing made by a person authorized by the Central Government or by the State Government. The aforesaid provision does not prohibit lodging of a F.I.R. It is worth mentioning that sub section 6 of Section 21 provided that an offence under sub section 1 of Section 21 is cognizable.
8. Section 156 of the Cr.P.C. gives power to police to investigate any cognizable case without the order of the Magistrate. Thus, if the police prima facie comes to the conclusion that an offence has been committed under Section 21 (1) of the MMDR Act then as per Section 156 of the Cr.P.C., it has ample power to investigate the said offence.
9. The provisions as contained in Section 22 of the MMDR Act is same to the provisions contained in Section 195 of the Cr.P.C. Section 195 (1) (b) of the Cr.P.C. also prohibits the court from taking cognizance of any offence punishable under Sections 193 to 196, 199, 200, 205, 211, 228, 463, 471, 475, 476
-4- [Cr.M.P. No. 672 of 2006] except on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf or some other court to which that court is subordinate.
10. Their lordships of Supreme Court in State of Punjab Vs. Raj Singh and Another reported in (1998) 2 SCC 391 while considering the aforesaid provision of Section 195 (1) (b) has held as follows:
"We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 Cr.P.C it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr.P.C; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C............................................................... ......"
In another case i.e. M. Narayandas Vs. State of Karnataka and others (2003) 11 SCC 251, the Hon'ble Supreme Court reiterated the same view.
11. Thus, the first submission of learned counsel for the petitioner is on the teeth of aforesaid two judgments of their lordships of Supreme Court. If after the investigation police come to the conclusion that the offence under Section 21 (1) of MMDR Act is made out then it is open for the police officer to report the matter to the competent authority, authorized by the Central Government or State Government, who if satisfied with the investigation may file complaint in the court as per the provision of MMDR Act. Thus only because the court have no power to take cognizance on the basis of charge sheet submitted by the police,
-5- [Cr.M.P. No. 672 of 2006] the power of the police to investigate the cognizable offence cannot be washed away. Hence, in my view there is no substance in the first argument of learned counsel for the petitioner, therefore, the same is rejected.
12. The documents produced by the driver reveals that coal was loaded from Maa Bhawani Fuel Industries, Jamatara- Jamuria, District-Burdwan but when he has been asked to show the place of loading he had shown another place i.e. Maa Mutai Chandi Fuel Industries, Shyamdih, P.S. Salanpur, District- Burdwan. The petitioner filed some documents which show that the coal was purchased from Dhanbad. Thus, the documents produced by the driver and petitioner do not tally with each other. Under the circumstances, it is necessary to unearth the truth, which, in my view, is possible only by police investigation. Thus in the instant case, it is not desirable that investigation of the crime be stopped at the threshold.
13. In view of the discussion made above, I find no merit in this application, the same is dismissed.
(Prashant Kumar, J.) Sunil/N.A.F.R.