Orissa High Court
Ramesh Ku. Agarwal & Others vs State Of Orissa & Others ...... Opposite ... on 9 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 127, (2019) 75 OCR 380
Author: A.K. Mishra
Bench: Akshaya Kumar Mishra
HIGH COURT OF ORISSA: CUTTACK.
CRLMC No.2440 of 2010
(An application under Section 482 of the Criminal Procedure Code)
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Ramesh Ku. Agarwal & others ...... Petitioners
- Versus-
State of Orissa & others ...... Opposite Parties
For Petitioners :M/s. Sanjit Mohanty, S.P. Panda, S.
Pattnaik, P.K. Muduli.
For Opposite Parties : Mr. D.K. Praharaj (Addl. Standing Counsel)
PRESENT:
THE HONOURABLE DR. JUSTICE AKSHAYA KUMAR MISHRA
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Date of hearing: 03.07.2019, Date of judgment: 09.07.2019
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Dr. A. K. Mishra, J. In this proceeding U/s. 482 Cr.P.C., Prayer has
been made to quash the criminal proceeding in Koira P.S. Case
No.64(10)/2010 corresponding to G.R Case No. 324 of 2010 pending in
the court of learned SDJM, Bonai and to release the illegally seized
1819.680 tons of Iron Ore Lumps.
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2. Case in brief is that the Mining Officer, Office of the Deputy
Director of Mines, Koira Circle, Sundargarh vide Letter No.15975 dated
29.06.2010 lodged an F.I.R. against M/s. Ajay Mineral & Steels (P) Ltd.
alleging inter alia that in course of verification 48.510 Metric Ton of Iron
Ore Lumps was found which was procured unauthorisedly for crushing and
conversation purpose. The said F.I.R. was registered U/s. 379/34 of IPC
and U/s. 21 of Mines and Minerals (Development & Regulation) Act, 1957
(in short „MMDR Act‟) and investigation was ensued. The present four
accused persons were named in the F.I.R. After investigation, charge-sheet
was submitted basing upon which learned SDJM, Bonai took cognizance
U/s. 379/34 of IPC and U/s.21 of MMDR Act. Being satisfied with
sufficient ground, issued process against nine accused persons including
the present four petitioners. Quashing of a proceeding ipso facto includes
the order of taking cognizance as well as F.I.R. as stated above.
3. Learned counsel for the petitioner submits that the police has
no jurisdiction to undertake the investigation for the offence U/s.21 of
MMDR Act and as no complaint was filed, initiation of the proceeding and
taking of cognizance on police report is illegal and same should be quashed.
He has relied upon a decision of this Court in the case of Surendra Kumar
Agarwal vrs. State of Orissa & others reported in (2009) 44 OCR 232.
4. Learned Addl. Govt. Advocate, Mr. D.K. Praharaj relying upon
a decision reported in (2014) 9 SCC 772 in the case of State (NCT of Delhi)
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vrs. Sanjay submits that the case should be continued for the offence U/s.
379 of IPC and the Hon‟ble Apex Court judgment is binding under
Article 141 of the Constitution of India.
5. Carefully read both the cited judgments. In Surendra Ku.
Agarwal (supra) decision, it has been held at para-16 and 17 in the
following way:-
xxxx xxxx xxxx xxxx
"16. The aforesaid provisions contained in Section 22 of the
MMDR Act and Rule 15 of the 2007 Rules, makes it abundantly
clear that no Court shall take cognizance of offence punishable
under the said Act or the 2007 Rules made thereunder, except
upon a complaint in writing made by the competent authority
or person authorized in that behalf by the Central Government
or the State Government.
17. The aforesaid provisions of the Act and the 2007 Rules
clearly provide that criminal prosecution can be launched only
on the basis of a written complaint filed in that regard by the
competent authority or the person authorized in that behalf and
not otherwise. Hence a reading of the aforesaid provision makes
it clear that no FIR can be registered by the police for any
offence committed under Section 21 of the MMDR Act and the
said provision does not contemplate investigation in a normal
way by the police on the basis of an FIR but only on the written
complaint to be presented to the concerned Court."
In the decision of the Hon‟ble Apex Court in the case of State
(NCT of Delhi) (supra), it has been held as follows:-
"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 by the alarming rate of unrestricted sand mining
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which is damaging the ecosystem 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 groundwater 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 the
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
persons is sought to be prosecuted for contravention of Section
4 of the Act and not for any act or omission which constitutes
an offence under the Penal Code."
5.(a) Precedential propriety commands to follow the law laid down
by the Hon‟ble Apex Court qua the High Court. As per the ratio of aforesaid
State (NCT of Delhi) vrs. Sanjay (supra) decision, the investigation can be
taken up for the offence U/s. 379/34 of IPC as the F.I.R. discloses the
same. But for want of complaint, the offence for contravention of the
Section 4 of MMDR Act cannot be proceeded with. This being the legal
position, this Court does not feel justified to quash the proceeding in toto.
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6. In that view of the matter, the order dated 12.08.2010 taking
cognizance U/s. 21 of MMDR Act is hereby quashed.
6.(a) However, the proceeding will continue for offence U/s. 379/34
of IPC against all the accused persons named in the order dated
12.08.2010.
Accordingly, the CRLMC is allowed in part.
LCR be returned immediately to the lower court.
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Dr. A.K. Mishra, J.
Orissa High Court, Cuttack, Dated the 9th July, 2019/RRJena