Orissa High Court
Munu @ Manoranjan Samantaray vs State Of Odisha .... Opp. Party on 18 October, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC Nos. 2381 & 1552 of 2023 and CRLMC Nos.
3636 & 3570 of 2022
Applications under Sections 482 of Cr.P.C.
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CRLMC No. 2381 of 2023
Munu @ Manoranjan Samantaray .... Petitioner
-versus-
State of Odisha .... Opp. Party
CRLMC No. 3636 of 2022
Kalu Jagadev @ Jayanarayan Jagadev .... Petitioner
-versus-
State of Odisha .... Opp. Party
CRLMC No. 3570 of 2022 ..... Petitioner
Kalu Jagadev @ Jayanarayan Jagadev
-versus-
State of Odisha ....... Opp. Party
CRLMC No. 1552 of 2023 ........ Petitioners
Santosh Rout & Anr
-versus-
State of Odisha. Opposite Party
Advocate(s) appeared in these cases:-
For Petitioners : Mr.P.C.Jena,
Advocate.
Vs.
For Opp. Parties : Mr. S.K.Mishra,
(Additional Standing Counsel)
Advocate
__________________________________________________________
CORAM:
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JUSTICE SASHIKANTA MISHRA
JUDGMENT
th 18 October, 2023 SASHIKANTA MISHRA, J.
All four applications are filed under Section 482 of Cr.P.C. and involves a common question of law. The facts, involved are also similar. Hence, all four cases were heard together and are being disposed of by this common judgment.
2. The sole point that falls for consideration before this Court is, whether the jurisdictional police has the authority to register FIR against any person for the offence under Rule 51 of Odisha Minor Mineral Concession Rule, 2016 (OMMC Rules) and /or Section 12 of the Odisha Minerals (Prevention of Theft, Smuggling and other Unlawful Activities) Act, 1988 (OMPTS Rules).
3. The petitioner in CRLMC No. 2381 of 2023 prays for quashing of the entire criminal proceeding in G.R. Case No. 172/2023 arising out of Begunia P.S. Case No.48/2023 under Sections 379/411/420/468/470 /471/120-b/34 of IPC and Rule 51 of the OMMC Rules 2004. The FIR was lodged by the S.I. of Begunia Police Station on the Page 2 of 11 allegation that a mini truck belonging to the petitioner was illegally transporting laterite stones in the manner contrary to permit issued in favour of his wife.
4. The petitioner in CRLMC No. 1552 of 2023 seeks quashment of the criminal proceedings emanating from Khuntuni P.S. Case No. 32 dated 02.03.2023 corresponding to C.T. Case No. 104 of 2023 of the Court of learned SDJM Athagarh under Section 379, 34 of IPC and Section 12 of the OMPTS Act. The ASI of Khutuni Police Station lodged FIR alleging that the petitioners had illegally stored coal in the backward of the house of one Ramesh Swain without any license or permit.
5. The petitioner in CRLMC No. 3570 of 2022 seeks quashment of the criminal proceeding emanating from Jankia P.S. Case No. 289 dated 12.08.2022 under Sections 379/411/34 IPC/12 of OMPTS Act/Rule 51 of OMMC Rules corresponding to G. R. Case No. 1279 of 2022 in the Court of learned SDJM, Khurda. The S.I. of Jankia P.S. lodged the said FIR alleging therein that a mini truck belonging to the petitioner was found loaded with laterite stone on the side of stone quarry which had been Page 3 of 11 removed illegally from Government land without any license or authority.
6. In CRLMC No. 3636 of 2023 the petitioner seeks quashment of the criminal proceeding emanating from Satyabadi P.S. Case No. 192 of 2022 corresponding to G.R. Case No.1389 of 2022 of the Court of learned SDJM, Khurda registered under Sections 379/34 of IPC and Rule 51 of the OMMC Rules. The ASI of Satyabadi P.S. had seized the vehicle bearing Reg No. OD-02AH-2855 and lodged an FIR, under the abovementioned sections, against the petitioners, on suspicion of carrying undocumented laterite stones from the quarry.
7. Heard Mr. P.C.Jena, learned counsel for the petitioners in all these cases and Mr. S.K.Mishra, learned Additional Standing counsel for the State.
8. It is argued by Mr. Jena that, firstly, that the jurisdictional police have no authority to launch a prosecution against any person alleged to have committed any offence under the OMPTS Act and OMMC Rules. Mr. Jena has referred to Section 14 of the OMPTS Act to submit that no Court can take cognizance of any offence Page 4 of 11 punishable under the Act except on a complaint in writing made by a police officer not below the rank of Sub- Inspector or the person authorized by the Government. Mr. Jena has also referred to Rule 51 of the OMMC Rules which contains similar provision. He therefore, argues that the very basis of the prosecution is without authority and hence, cannot be allowed to continue. Mr. Jena, further argues on merits that no case is made out against the petitioners, prima facie, justifying the continuance of investigation against them.
9. Mr. S.K.Mishra, learned State counsel has argued that having regard to the statutory provisions, at best the criminal proceedings in so far as the same relates to the offences under the OMPTS Act and OMMC Rules can be interfered with but in so far as the offences under IPC are concerned, the jurisdictional police has full authority to launch prosecution in such respect. Mr. Mishra, further argues that investigation into the case is still in progress and therefore, it is premature for the petitioners to approach this Court.
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10. After hearing learned counsel for the parties at length, this Court deems it proper to first refer to the relevant statutory provisions relied upon by the parties. It has been alleged that the petitioners in CRLMC Nos. 3570 of 2022, 3636 of 2022, 1552 of 2023, 2381 of 2023 have committed the offence under Section 12 of the OMPTS Act. Section 14 of the said act however reads as follows:
14. "Cognizance of offence. - No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by-
(a) a Police Officer not below the rank of a Sub-Inspector; or
(b) any person authorised in this behalf by the Government."
11. It is clear that the legislature has provided for lodging of complaint by the police officer of the appropriate rank or by an officer specially authorized by the State Government. It is needless to mention that the procedure to be adopted in a complaint case is different from that arising out of information given to police. Therefore, it can be safely concluded that the jurisdictional police would have no authority to launch prosecution by registering an FIR under Section 154 of Cr.P.C. In this context, it has been argued on behalf of the petitioners that if such would be the finding of this Court then the entire proceeding has to be quashed because the alleged transaction being one and Page 6 of 11 the same, more than one offence cannot be deemed to have been committed. It is further submitted that the alleged offence of Section 12 of the Act and Rule 51 of the OMMC Rules include the offences of Sections 379/411 and other IPC offences. Therefore, once the proceeding is held to be invalid for lack of jurisdiction of the police to prosecute the accused persons under the provisions of OMPTS Act and OMMC rules, there is no option but to quash the entire proceedings as otherwise it would tantamount to double jeopardy for the accused persons.
12. The argument as above is undoubtedly attractive but on closure scrutiny is found to be without substance. Reference in this regard may be profitably made to the decision of the Supreme Court of India in the case of State (NCT Delhi) vrs. Sanjay & others reported in (2014) 9 SCC 772, wherein the Court was seized with a similar question. In the said case, the question was whether the provisions contained in Sections 21/22 and other Sections of MMDR Act operate as bar against prosecution of a person who has been charged with allegation which also constitutes offences under Sections 379/114 and other provisions of the Penal Code 1860. The Supreme Court Page 7 of 11 noted the conflicting judgments rendered by different High Courts in this regard and the relevant statutory provisions to ultimately hold as follows:
70. There cannot be any dispute with regard to 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 power 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 of the said Act. In the 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 person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act of omission which constitutes an offence under the penal code.
71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal code.
72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Sections 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the Page 8 of 11 manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1) (d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly.
13. Thus, there can be no dispute as regards the authority of the jurisdictional police to continue with the investigation in respect of the IPC offences even if it is held that it has no authority to investigate the offences under the OMPTS Act and OMMC Rules.
14. Be it noted here that Section 22 of the MMDR Act is in pari materia with Section 12 of the OMPTS Act and OMMC Rules and therefore, the ratio of Sanjay(Supra) would be applicable to the facts of the present case. Page 9 of 11
15. Thus, from a conspectus of the analysis of facts and law involved in the cases as narrated hereinbefore, this Court is of the view that the proceeding initiated against the petitioners on the basis of the FIRs lodged by the jurisdictional police alleging commission of offences under Section 12 of OMPTS Act and Rule 51 of OMMC Rules, as the case may be, are invalid and therefore, cannot be allowed to continue. This Court further holds that notwithstanding such findings the proceedings in respect of the IPC offences on the basis of the same FIRs, which are distinct offences, are to be treated as valid as there is no embargo in law to prevent the same being investigated upon.
17. In the result, the CRLMC are partly allowed. The proceedings in G.R. Case No.1389 of 2022 pending in the Court of learned S.D.J.M., Khurda, G.R. Case No.172 of 2023 pending in the Court of learned J.M.F.C(Cog.Taking), Khurda, G.R. Case No.1279 of 2022 pending in the court of learned SDJM, Khurda & G.R. Case No.104 of 2023 pending in the Court of learned S.D.J.M., Athagarh in so far as the same relate to the offence under Section 12 of the OMPTS Act and/or Rule 51 of OMMC Rules only are Page 10 of 11 hereby quashed. The proceedings shall however continue in respect of the IPC offences.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 18th October, 2023/Deepak Page 11 of 11