Jharkhand High Court
Tara Chand Sachdeva & Ors. vs State Of Jharkhand & Anr. on 25 September, 2012
Equivalent citations: 2013 (1) AJR 522
Author: H.C.Mishra
Bench: H. C. Mishra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1131 of 2003
1. Tara Chand Sachdeva
2. Navin Sachdeva
3. Pravin Sachdeva
4. Smt. Dipti Sachdeva ... ... Petitioners
Versus
1. The State of Jharkhand
2. Sri G. P. Bhagat ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA For the Petitioners: M/s. A.K.Sahani, Advocate For the State: M/s. Md. Hatim, A.P.P.
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C.A.V. on 24.08.2012 Pronounced on 25.09.2012
ORDER
H.C.Mishra,J. : Heard learned counsel for the petitioners and learned counsel
for the State.
2. The petitioners are aggrieved by order dated 11.11.2003 passed by the learned Chief Judicial Magistrate, Gumla, in G.R. No. 586 of 1999, arising out of Bishunpur P.S. Case No. 31 of 1999, whereby the application filed by the petitioners u/s 239 of the Cr.P.C., for discharge, has been rejected by the Court below.
3. The petitioners have been made accused in Bishunpur P.S. Case No. 31 of 1999, corresponding to G.R. No. 586 of 1999 for the offences u/ss. 409 and 120-B of the Indian Penal Code on the written application filed by the Assistant Mining Officer, Gumla, wherein it is alleged that the petitioner No. 1, Tara Chand Sachdeva, is the Managing Director of M/s. Rajhans Refractories (P) Ltd. and the other petitioners are the Directors therein. Said Rajhans Refractories (P) Ltd. was granted mining lease over an area of 159.67 acres in Amtipani, for mining of Bauxite, with the condition that they would furnish correct statistics regarding the mining of the Bauxite done by them on the lease hold area and they would pay proper tax (royalty) to the State Government. It is further alleged that M/s. Rajhans Refractories (P) Ltd., appointed M/s. Allied Minerals Company, Dhanbad, as their Marketing Agent and through them they used to sell the Bauxite to M/s. Hindalco Industries Limited, Lohardagga. It appears from the F.I.R., that the partners in M/s. Allied Minerals Company are the petitioners Nos. 2 to 4 themselves. It is further alleged that during the period 1994-1995, 1997-1998 and 1998-1999, as per the return furnished by M/s. Rajhans Refractories (P) Ltd., the mining of the Bauxite was done to the tune of 31,708.945 MT, whereas during the same period the books of M/s. Hindalco Industries Limited, Lohardagga, showed the purchase of 60,324.19 MT of Bauxite through M/s. Allied Minerals Company. As such the sale of 28,615.245 MT of Bauxite valued at Rs.34,32,530/- on which the tax (royalty) of Rs.10,82,841.40/- was payable, was concealed from the State Government. Out of the said amount, Rs.4,40,000/- of the accused persons was lying with M/s. Hindalco Industries Limited, which had been realized. It further appears from the F.I.R., that there is allegation that the petitioners had concealed the Government property and tax worth Rs.45,15,371.40/- and accordingly, the F.I.R. was lodged for the offences u/ss. 409 and 120-B of the Indian Penal Code against the petitioners.
4. It appears that upon investigation, the police submitted the charge-sheet against the petitioners and cognizance was also taken against them. Subsequently, the petitioners filed the application for discharge, which was rejected by the Court below by the impugned order dated 11.11.2003 as aforementioned.
5. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated in this case. It has also been submitted that for realisation of the alleged dues from the petitioners a separate proceeding has been instituted. It is further submitted that on the basis of the allegations made in the F.I.R., the offence is clearly made out under the Mines and Minerals (Development and Regulation) Act, 1957, (herein after referred to as the 'Act'), which is the special statute governing the subject matter and Section 22 of the said Act clearly lays down that "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." Learned counsel accordingly, submitted that the Act clearly bars cognizance except on a complaint filed before the Magistrate and as such, the present case which has been instituted on the basis of the F.I.R. is fit to be quashed. In this connection learned counsel for the petitioners has placed reliance upon the decision of this Court in Narayan Mahto @ Narayan Chandra Mahto Vs. State of Jharkhand & Ors., reported in 2006 (4) JCR 210 (Jhr), wherein, relying upon the decision of the Supreme Court of India in the case of Raj Kapoor Vs. Laxman, reported in (1980) 2 SCC 175, this Court has held that Jharkhand Minor Minerals Concession Rules, 2004 is a special law whereas, the Indian Penal Code, under which the F.I.R. was lodged in the said case, is a general statute. Jharkhand Minor Minerals Concession Rules, 2004 provided a special machinery and accordingly, in view of the law laid down in Raj Kapoor's case (Supra), that where a special statute is operative, the general statute has to give way, the prosecution u/s 379 and 411 of the Indian Penal Code was quashed by this Court. Reliance has further been placed upon the decision of this Court in the case of B. Muthuraman @ Balasubramanian Muthuraman & Ors. Vs. The State of Jharkhand, reported in 2009 (3) JCR 261 (Jhr), wherein also this Court has discussed the law regarding special law and the general law and has held that the provision contained in special legislation will certainly take precedence over the general punishment prescribed under the penal code and the provision of penal code would have no application in the matter of transportation of the minerals in contravention of the provisions of Mines and Minerals (Development and Regulation) Act, 1957, or rule or even regulation made therein. In the said decision this Court has also taken into consideration that Section 22 of the Act barred cognizance of any offence punishable under the Act or any rules made there under, except upon complaint in writing made by a person authorized in this behalf by the appropriate Government. The Court took note of the definition of the complaint as given in Section 2(d) of the Code of Criminal Procedure and held that the F.I.R. lodged in the case was illegal and nonest in the eyes of law and accordingly, the F.I.R. was quashed.
6. Placing reliance on these decisions, learned counsel submitted that in the present case also the F.I.R. has been lodged against the petitioners in gross violation of the mandate of Section 22 of the Act, and accordingly, the prosecution is fit to be quashed.
7. Learned counsel for the State on the other hand, has submitted that there is no illegality in the impugned order, worth interference in the revisional jurisdiction, as on the basis of the allegations made in the F.I.R., the offence is clearly made out u/ss. 409 and 120-B of the Indian Penal Code, in as much as, the petitioners had conspired and had committed the criminal breach of trust by concealing the actual quantity of Bauxite sold, with an intention to evade the payment of royalty to the State Government.
8. After having heard learned counsels for both the sides and upon going through the record, I find that on the basis of the allegations made in the F.I.R., it is manifest that there is allegation of concealment of the due royalty against the Company holding the mining lease, of which the petitioners are the Managing Director and the Directors. On the basis of the same allegation the offence is also made out under the Mines and Minerals (Development and Regulation) Act, 1957, as also under the Indian Penal Code. Mines and Minerals (Development and Regulation) Act, 1957 is the Special Statute which has been enacted by the Parliament having regard to the importance of the subject and Section 4 of the Act provides for undertaking the mining operations in accordance with the terms and conditions of the mining lease, violation whereof, is offence under the Act, for which there is penal provision under Section 21 of the Act. Section 22 of the Act clearly lays down 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".
9. The term "Complaint" is defined u/s 2(d) of the Code of Criminal Procedure as follows:-
"2.(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
10. Thus the very definition of the term 'complaint' shows that the F.I.R. lodged before the police cannot be a complaint made to the Magistrate. Thus, there is a clear bar under the Act for taking cognizance of any offence punishable under this Act or any rules made there under, except upon complaint made before the Magistrate. In Jeewan Kumar Rout & Anr., Vs. CBI, reported in (2009) 7 SCC 526, the law has been laid down as follows :-
"26. It is a well-settled principle of law that if a spe- cial statute lays down procedures, the ones laid down under the general statutes shall not be fol- lowed.------------"
11. In view of the foregoing discussions, the prosecution of the peti- tioners which has been instituted on the basis of the F.I.R. filed before the police cannot be continued and it is a fit case for quashing the criminal prosecution against the petitioners. I find that the facts of this case is fully covered by the decision of the Apex Court in Jeewan Ku- mar Rout's case (supra) and the decisions of this Court in Narayan Mahto's case (supra) and B.Muthuraman's case (supra).
12. In view of the aforementioned discussions, the entire criminal proceeding against the petitioners in Bishunpur P.S. Case No. 31 of 1999, corresponding to G.R. No. 586 of 1999, pending in the Court of learned Chief Judicial Magistrate, Gumla, including the order dated 11.11.2003 passed therein, are hereby, quashed. This application is accordingly, allowed.
(H.C.Mishra, J.) Jharkhand High Court, Ranchi.
Dated the 25th of September, 2012.
D.S./N.A.F.R.