Madhya Pradesh High Court
Ajay @ Atveer vs The State Of Madhya Pradesh on 13 October, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH MCRC No.38859/2020 (AJAY @ ATVEER VS. THE STATE OF MADHYA PRADESH) Gwalior dtd. 13/10/2020 Shri A.K.Upadhyay, learned counsel for the applicant. Shri Anup Nigam, learned Panel Lawyer for the State. Heard finally through Video Conferencing. Case diary is available.
This repeat second application under Section 439 of Cr.P.C. has been filed for grant of bail.
The applicant has been arrested on 15/08/2020 in connection with Crime No.166/2020 registered at Police Station Daboh, District Bhind for offence under Sections 379, 414 of IPC and Sections 18(1) and 18(2) of the M.P. Sand (Mining, Transpiration Storage and Trading) Rule, 2019 (in short "Rules, 2019").
It is submitted by the counsel for the applicant that according to the prosecution case the applicant is the driver of the tractor- trolley, which was found transporting illegally excavated sand. It is submitted that as per provisions of the Rules, 2019, the owner of the tractor has already deposited the penalty as provided under Rule 20 of the Rules 2019. It is further submitted that the applicant is in jail for the last two months and the case is triable by magistrate.
Per contra, the application is vehemently opposed by the counsel for the State.
Heard the learned counsel for the parties. 2 The prosecution case is that the applicant was transporting illegally excavated sand. So far as the question of payment of royalty is concerned, this Court by order dated 05/10/2020 passed in the case of Banti Vs. State of M.P. in MCRC No.37312/2020 has considered the effect of provisions of Rules, 2019 and has held as under:-
"So far as the exemption from prosecution for criminal offence is concerned, imposition of penalty and royalty has to be considered in the light of the Rules 6 and 7 of the Rules, 2019, which provides for the maximum quantity of sand, which can be excavated and the minimum base price of the such excavated sand. Further, from Rule, 12(2), (3) and (4) of the Rules, 2019, it is clear that the mining is subjected to environmental clearance, water and air consent as well as permissible quantity. In case of violation of any water and air consent, the pollution board can also register an offence.
So far as the recovery of penalty and royalty is concerned, at the most, it can be said that it is for the satisfaction of the civil liability. There is no bar in the Rules, 2019 to resort to the provisions of Penal Code or any other Statute."
The Supreme Court in the case of State of M.P. vs. Rameshwar and others reported in (2009) 11 SCC 424 has held as under:-
"48. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved."
In the light of the above-mentioned judgment, it is clear that even in case of penalty or royalty has been assessed by the Collector under Rule 20 of the Rules, 3 2019, still a wrongdoer can be prosecuted for committing an offence punishable under the provisions of IPC and any other statute.
Thus, it is clear that merely because the owner of the tractor has deposited the royalty as per provisions of Rules, 2019, it would not absolve the applicant for his criminal act.
So far as the contention of the counsel for the applicant that he is in jail for last two months and the case is triable by the Magistrate is concerned, this Court by order dated 07/10/2020 passed in the case of Rajeev Sharma Vs. State of Madhya Pradesh in MCRC No. 35538/2020 has considered this aspect in detail and has held that if an offence is non-bailable, then the applicant is not entitled for bail by way of right, merely on the ground that the case is triable by Magistrate, and the Court while considering the bail application has to consider the gravity of offence.
This Court in the case of Rajeev (supra) has held as under:-
"So far as the contention of the applicant that the High Court is not granting bail in the cases, which are triable by Magistrate is concerned, this statement is purely contemptuous in nature. The activities of excavating sand in an illegal manner are increasing day by day. The Situation is very horrible and beyond control.
Due to illegal excavation of sand, the miscreants like applicant are causing damage to the bed of the rivers thereby putting marine life as well as environment in danger. They are causing damage to the rivers beyond irreparable loss. Not only that, the applicant is also guilty of causing financial loss to the State by not making payment of royalty. Further more, while granting Sand Quarry Lease, the State 4 Government always take into consideration as to whether the quarry lease can be granted in a particular area or not and what would be the maximum quantity of sand which can be excavated. As per Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules,2019, several restrictions are provided and sand can be excavated after obtaining Envrionmental clearance, and Water and Air Consent. Furthermore, there are provisions with regard to the manner in which transportation of sand would take place. The applicant, by indulging in illegal transportation by illegally excavating the sand is not only causing irreparable loss to the humanity, environment and to the marine life but is also causing financial loss to the State. Under these circumstances, it cannot be said that the applicant is entitled to be released on bail merely because the offence alleged against him is triable by Magistrate.
It is incorrect on the part of the Counsel for the applicant to submit that since, the offence is triable by Magistate, therefore, the High Court must grant bail by ignoring the gravity of offence. If an offence is non- bailable, then bail cannot be granted as a matter of right and the Court is required to consider the allegations made against the accused.
So far as the contention of the applicant that in the light of the provisions of Section 437(6) of Cr.P.C., the applicant is entitled for bail as the Magistrate has failed to conclude the trial within a period of 60 days from the first date fixed for taking evidence is concerned, this Court is of the considered opinion that the provision of Section 437(6) of Cr.P.C. has no application to the facts of the case.
Section 437(6) of Cr.P.C. reads as under :-
"(6) If, in any case triable by a Magistrate, the trial of a person accused of any nonbailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs."
Thus, the period of 60 days would start from the 5 date, which would be fixed for the first time for taking evidence in the case. The trial has not reached to the stage of evidence. Further Section 437(6) of Cr.P.C is not absolute in itself. Even if the trial Court fails to decide the trial within a period of 60 days from the first date fixed for taking evidence, still he can reject the application by assigning special reasons. No indefeasible right is created in favour of the accused in case if the trial is not concluded within a period of 60 days from the first date of fixing the case for evidence."
Accordingly, this Court is of the considered opinion that no case is made out for grant of bail to the applicant.
Accordingly, this application fails and is hereby dismissed.
(G.S.Ahluwalia)
Pj'S/- Judge
PRINCEE
BARAIYA
2020.10.14
10:25:48 -07'00'