Madhya Pradesh High Court
Sourabh Patel vs The State Of Madhya Pradesh on 3 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.6982/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF APRIL, 2024
WRIT PETITION No. 6982 of 2024
BETWEEN:-
1. SOURABH PATEL S/O LATE DAYAL PATEL,
AGED ABOUT 40 YEARS, OCCUPATION:
TRANSPORTERS KEWLARI TAHSIL
KEWLARI DISTRICT SEONI (MADHYA
PRADESH)
2. DWARARAK PRASAD VISHWAKARMA
@MONU S/O SHRI SURESH VISHWAKARMA
OCCUPATION: TRUCK DRIVER R/O
PIPARIYA TEHSIL KEWALRI DISTRICT
SEONI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAKET ANAND TIWARI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
DEPARTMENT OF HOME VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR SEONI DISTRICT SEONI
(MADHYA PRADESH)
3. SUPERINTENDANT OF POLICE SEONI
DISTRICT SEONI (MADHYA PRADESH)
4. POLICE INSPECTOR POLICE STATION
BRAMHANI SEONI DISTRICT SEONI
(MADHYA PRADESH)
.....RESPONDENTS
2 W.P.No.6982/2024
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 226 of Constitution of India has been filed challenging the FIR No.78/2024 registered at Police Station Bamhani, District Mandla for offence under Sections 379 and 414 of IPC.
2. It is submitted by counsel for the petitioner that according to the prosecution case, an information was received by the concerning Police Station that sand is being transported illegally in Haiwa No.MP- 22-H-1252. Accordingly, the said vehicle was stopped. Driver of the vehicle was unable to produce the documents pertaining to transportation of sand and accordingly the offence under Section 379 and 414 of IPC was registered.
3. It is submitted by counsel for petitioner that police has no authority to register the offence under Section 379 and 414 of IPC. It is submitted that in exercise of power under Section 23 of M.P. Mines and Minerals (Development and Regulations) Act, 1957, the State Government has framed rules namely Madhya Pradesh Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2022 (in short "Rules 2022").
4. It is submitted that as per Rule 25 of Rules 2022where the police finds that illegal mining, storage and transportation is being done in addition to the quantity mentioned in the transit pass, then the 3 W.P.No.6982/2024 police shall give information to SDO (Revenue). The SDO (Revenue) would proceed in accordance with rules 23 and 24. Accordingly, it is submitted that police has no jurisdiction to register FIR.
5. Per contra, the petition is vehemently opposed by the counsel for State. It is submitted that the Supreme Court in the case of Jayant v. State of M.P., reported in (2021) 2 SCC 670 has held that registration of FIR in the case illegal transportation of minerals is permissible.
6. Heard the learned counsel for the parties.
7. Rule 23, 24 and 25 of M.P. Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2022 reads as under:-
"23. Action in illegal extraction, transportation, and Storage.
Whenever any person is found involved in illegal extraction, illegal transporting and illegal storing of the minerals or cause to be, in contravention of provisions of these rules, the Collector/Additional Collector/Deputy Collector/ Sub Divisional Officer (Revenue)/Tehsildar/Naib Tehsildar/Chief Executive Officer of Zilla Panchayat/Chief Executive Officer of Janpad Panchayat/Deputy Director (Mining Section)/Officer Incharge of Mining Section/Assistant Mining Officer/Mining Inspector/Officer in Charge (Flying Squad) in their respective jurisdiction shall proceed to act in the following manner:-
(i) to initiate case of illegal extraction, illegal transporting and illegal storing by preparing Panchnama on spot;4 W.P.No.6982/2024
(ii) to collect necessary evidences, which may include videography of illegal extraction, illegal transporting, illegal storing;
(iii) to forfeit all tools, devices, vehicles used in illegal excavation or illegal storage or illegal transportation of mineral and mineral shall hand or all material so forfeit. 1 to the persons or lessee or any other person from whose possession such material was forfeited on executing an undertaking up to satisfaction of the officer forfeiting such material, to this effect that he shall forthwith produce such material as and when may be required to do so;
(iv) officers as mentioned above shall make a request in writing to the concerning police station/seeking police assistance, if necessary and police officer shall provide such assistance as may be necessary to prevent illegal excavation, transporting and storing of the mineral.
24. Powers of the investigating officer.-
The investigation officer while investigating the cases of illegal extraction, transporting and storing of the minerals, shall have the following powers:-
(i) to call for person concern to record statements;
(ii) to seize record and other material related to the case;
(iii) to enter at concerned place and spot inspection;
(iv) all powers as are vested in an incharge of a police station while investigation any cognizable offence under Code of Criminal Procedure;5 W.P.No.6982/2024
(v) all other powers as are vested under Code of Civil Procedure to compel any person to appear or to be examined on oath or to produce any document,
(vi) on such cases where the illegal excavator, transporter, storer ran away leaving the vehicle/machine on the spot, then the double amount of the actt. expenditure to keep the chicle/machine etc. in safe custody shall be impose in addition to the fine.
25. Action on finding of illegal extraction, storing, transportation and transportation of more quantity then the quantity mentioned in transit pass by the police.
On finding of illegal extraction, storing, transportation and transportation of more quantity then the quantity mentioned in transit pass by the police then information shall be given to the Sub Divisional Officer (Revenue). Sub Divisional Officer (Revenue) shall ensure the action under the provisions of Rule 23 and 24 on the basis of information given by Police."
8. From the plain reading of the aforesaid rules, it is clear that they do not provide for taking of any criminal action. Counsel for petitioner could point out any provision of law which prohibits the application of the provisions of IPC.
9. Rule 18, 19 and 20 of Rules, 2022 provides for penalty for illegal extraction, illegal transportation and the penalty for the excess quantity mentioned more than in the transit pass and it is also provided that after payment of total penalty and compounding fee, the compounding of the case may be made and after compounding the case, the forfeited mineral and vehicle will be released.
6 W.P.No.6982/202410. The only question for consideration is as to whether the imposition of penalty would absolve the violator from escaping from criminal liability or not.
11. The question in hand is no more res integra.
12. The Supreme Court Jayant v. State of M.P., reported in (2021) 2 SCC 670 has held as under:-
"21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-à-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
21.1. That the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the In-charge/SHO of the police station concerned to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.
21.2. The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and the Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and the Rules made thereunder.
21.3. For commission of the offence under IPC, 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and the Rules made thereunder.
21.4. That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, 7 W.P.No.6982/2024 when a Magistrate passes an order under Section 156(3) of the Code and directs the In-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and the Rules made thereunder and thereafter after investigation the In-charge of the police station/investigating officer concerned submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate. 21.5. In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-
section (2) of Section 23-A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any Rules made thereunder so compounded. However, the bar under sub-section (2) of Section 23-A shall not affect any proceedings for the offences under IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."
13. Thus, it is clear that if the offence is compounded under the Rules, 2022, even then it shall not affect any proceeding for the offences under IPC such as Section 379 and 414 of IPC and the same shall be proceeded with further.
8 W.P.No.6982/202414. Even otherwise, the Supreme Court in the case of State of M.P. v. Rameshwar, (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."
15. The Supreme Court in the case of Dhanraj N Asawani Vs. Amarjeetsingh Mohindersingh Basi and Others decided on 25/07/2023 in Criminal Appeal No.2093/2023 has held as under: -
" 27. From the narration of submissions before this Court, it appears that on 31 May 2021, the Minister in - charge of the Co - operative depar tment has set aside the audit report while directing a fresh audit report for 2016 - 2017 and 2017 - 2018. The order of the Minister has been called into question in independent proceedings before the High Court. This Court has been apprised of the fact that t he proceedings are being heard before a Single Judge of the High Court. The proceedings which have been instituted to challenge the order of the Minister will have no bearing on whether the investigation by the police on the FIR which has been filed by the appellant should be allowed to proceed. The police have an independent power and even duty under the CrPC to investigate into an offence once information has been drawn to their attention indicating the commission of an offence. This power is not curtaile d by the provisions of 1960 Act. There is no express bar and the provisions of Section 81(5B) do not 9 W.P.No.6982/2024 by necessary implication exclude the investigative role of the police under the CrPC."
16. Accordingly, no case is made out warranting interference.
17. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE VB* VINAY KUMAR BURMAN 2024.04.05 17:09:48 +05'30'