Orissa High Court
Prasannajit Nayak vs State Of Odisha ......... Opposite ... on 21 February, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ODISHA, CUTTACK
ABLAPL No. 1167 of 2022
An application under section 438 of the Code of Criminal
Procedure in connection with Jakhapura P.S. Case No. 06 of
2022 corresponding to C.T. Case No. 102 of 2022 pending in the
Court of J.M.F.C., Jajpur Road.
-------------------------
Prasannajit Nayak ......... Petitioner
-Versus-
State of Odisha ......... Opposite Party
For petitioner: - Mr.Sidhartha Das
Advocate
For State of Odisha: - Mr. Ashok Kumar Parija
Advocate General
Mr. Arupananda Das
Addl. Govt. Advocate
-------------------------
CORAM:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
........................................................................................................................
Date of Order: 21.02.2022
........................................................................................................................
S.K. SAHOO, J. The petitioner has knocked at the portals of this
Court for grant of anticipatory bail under section 438 of Code of
Criminal Procedure apprehending arrest in connection with
Jakhapura P.S. Case No. 06 of 2022 corresponding to C.T. Case
No. 102 of 2022 pending in the Court of J.M.F.C., Jajpur Road for
// 2 //
commission of offences under section 379 of the Indian Penal
Code read with section 21 of the Mines & Minerals (Development
and Regulation) Act, 1957 (hereafter 'M.M.D.R. Act').
2. The case of the prosecution, in short, is that basing
on a public complaint received from the villagers regarding theft
of morrum by the petitioner, the Tahasildar, Danagadi vide letter
No.318 dated 25.01.2022 lodged a written report before the
Inspector in-charge of Jakhapura police station stating therein
that on receipt of the aforesaid complaint, R.I., Danagadi duly
enquired into the matter and reported that the petitioner, who is
a resident of Jakhapura is involved in theft of 8000 cum of
morrum from the land measuring an area Ac.55.00 of Khata
No.419, Plot No.865, kissam Salajangal of mouza- Jakhapura. He
requested the Inspector in-charge of Jakhapura to register the
F.I.R. against the petitioner and take immediate action.
On the basis of such first information report,
Jakhapura P.S. Case No.06 dated 26.01.2022 was registered
under section 379 of the Indian Penal Code read with section 21
of the M.M.D.R Act against the petitioner.
3. Mr. Sidhartha Das, learned counsel for the petitioner
submitted that due to political rivalry, the case has been falsely
instituted and none of the villagers alleged anything against the
Page 2 of 38
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petitioner regarding theft of morrum and the petitioner is a local
man and there is no chance of his absconding or tampering with
the prosecution evidence. Learned counsel urged that the
ingredients of the offence under section 21 of the M.M.D.R. Act
are not attracted in the factual scenario and moreover, such
offence is triable by the Special Court but no Special Court has
yet been constituted in the State of Odisha in spite of the
provision under section 30-B of the M.M.D.R. Act and a Court can
take cognizance of any offence punishable under the M.M.D.R.
Act or the rules made thereunder only upon a complaint in
writing made by a person authorised in this behalf by the Central
Government or the State Government and therefore, the
anticipatory bail application may be favourably considered.
4. On such submission being made by the learned
counsel for the petitioner, the Registry of this Court was asked to
get information as to whether any Special Court has been
constituted in the State of Odisha in view of section 30-B of the
M.M.D.R. Act and the answer was in negative.
Taking into account the importance of the matter
regarding non-constitution of Special Courts in the State of
Odisha to try the offences under M.M.D.R. Act, the learned
Advocate General was requested to remain present to assist the
Page 3 of 38
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Court during the hearing of the anticipatory bail application and
he graciously assisted this Court without taking any side and
fairly submitted that the State Government has not yet
constituted any Special Court in terms of the provisions under
section 30-B of the M.M.D.R. Act.
The learned Advocate General submitted on
09.02.2022 that he has obtained instruction that only ten cases
under M.M.D.R. Act which relates to the Vigilance Cases are
pending in the State of Odisha. When it was pointed out to him
that there are number of police cases pending in different police
stations for investigation and also in different Courts for trial
wherein apart from the offences under various sections of Indian
Penal Code, offence under section 21 of the M.M.D.R. Act has
been added and the learned Magistrates are also trying such
offences even though section 30-B of the M.M.D.R. Act requires
the constitution of the Special Courts for speedy trial of the
offences for contravention of the provisions of sub-section (1) or
sub-section (1-A) of section 4 of the M.M.D.R. Act and the
Special Court is the competent Court to try the offence under
section 21 of the M.M.D.R. Act along with other connected
offences under Indian Penal Code offences in view of the ratio
laid down in the case of Pradeep S. Wodeyar -Vrs.- State of
Page 4 of 38
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Karnataka reported in (2022) 85 Orissa Criminal Reports
(SC) 477, as per order dated 09.02.2022, this Court requested
the learned Advocate General to apprise this Court as to how
many P.S. Cases have been instituted/pending under section 21
of the M.M.D.R. Act along with the offences under Indian Penal
Code, particularly, in some of those districts where such offences
are rampant. Simultaneously, this Court also directed the
registry to call for a report from the learned District Judges of the
State indicating how many P.S. Cases involving offences under
M.M.D.R. Act are subjudiced in their respective judgeship.
The learned Advocate General has furnished the lists
of cases pending in different police stations in the districts of
Keonjhar, Sundargarh and Mayurbhanj, from which it appears
that total number of cases registered in the aforesaid districts
under the M.M.D.R. Act along with the offences under the Indian
Penal Code are 195, 251 and 99 respectively.
The learned District Judges of the State have also
furnished their respective reports indicating the numbers of cases
subjudiced under the M.M.D.R. Act, the details are given below:
Name of the districts Nos. of cases
Sl. pending
No.
1. Angul 122
2. Balasore 76
Page 5 of 38
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3. Boudh 16
4. Balangir 07
5. Bhadrak Nil
6. Bargarh Nil
7. Cuttack 60
8. Dhenkanal 77
9. Deogarh 13
10. Ganjam Nil
11. Gajapati Nil
12. Jharsuguda 14
13. Jagatsinghpur 06
14. Jajpur 154
15. Keonjhar 44
16. Khurda 29
17. Kandhamal Nil
18. Kalahandi 06
19. Kendrapara Nil
20. Koraput Nil
21. Mayurbhanj 99
22. Malkangiri Nil
23. Nayagarh 16
24. Nuapada Nil
25. Nabarangpur Nil
26. Puri 66
27. Rayagada 03
28. Sundargarh 116
29. Sambalpur 19
30. Sonepur Nil
Page 6 of 38
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5. M.M.D.R. Act, 1957 is the Central Act which governs
the development and regulation of mines and minerals in terms
of the powers vested in the Central Government. The provisions
of the M.M.D.R. Act extend to the whole of India. State
Governments have to regulate the mines and minerals in terms
of the M.M.D.R. Act. Prior to the comprehensive amendment
made in the M.M.D.R. Act in 2015, there have been amendments
several times over the years, notably in 1972, 1986, 1994 and
1999. The salient features of M.M.D.R. Amendment Bill 2015 are
as follows:-
(i) Removal of discretion; auction to be sole
method of allotment: The amendment seeks to
bring in utmost transparency by introducing
auction mechanism for the grant of mineral
concessions. The tenure of mineral leases has
been increased from the existing 30 years to 50
years. There is no provision for renewal of
leases.
(ii) Impetus to the mining sector: The mining
industry has been aggrieved due to the second
and subsequent renewals remaining pending. In
fact, this has led to closure of a large number of
mines. The Bill addresses this issue also. The Bill
provides that mining leases would be deemed to
be extended from the date of their last renewal
to 31st March, 2030 (in the case of captive
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mines) and till 31st March, 2020 (for the
merchant miners) or till the completion of the
renewal already granted, if any, or a period of
fifty years from the date of grant of such leave,
whichever is later.
(iii) Safeguarding interest of affected persons:
There is provision to establish District Mineral
Foundation in the districts affected by mining
related activities.
(iv) Encouraging exploration and investment:
The Bill proposes to set up a National Mineral
Exploration Trust created out of contributions
from the mining lease holders, in order to have a
dedicated fund for encouraging exploration in
the country. Transfer of mineral concessions
granted through auction will be permitted in
order to encourage private investors.
(v) Simplification of procedures and removal of
delay: The amendment removes the need for
"previous approval" from the Central
Government for grant of mineral concessions in
case of important minerals like iron ore, bauxite,
manganese etc. thereby making the process
quicker and simpler. Similarly, the State
Governments will devise a system for filling of a
mining plan obviating the need for prior approval
of the Mining Plans by the Central Government.
The Central Government will have revision
Page 8 of 38
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powers in case State Governments fail to decide
issues within the prescribed time.
(vi) Stronger provisions for checking illegal
mining: In order to address the serious problem
of illegal mining, the penal provisions have been
made further stringent by prescribing higher
penalties up to 5 lakh rupees per hectare and
imprisonment up to 5 years. State Governments
will now be able to set up Special Courts for trial
of offenses under the Act."
Section 30-B of the M.M.D.R. Act which was inserted
by Act 10 of 2015 (w.e.f. 12.01.2015) reads as follows:-
"30-B. Constitution of Special Courts.-(1)
The State Government may, for the purposes of
providing speedy trial of offences for
contravention of the provisions of sub-section
(1) or sub-section (1-A) of section 4, constitute,
by notification, as many Special Courts as may
be necessary for such area or areas, as may be
specified in the notification.
(2) A Special Court shall consist of a Judge who
shall be appointed by the State Government with
the concurrence of the High Court.
(3) A person shall not be qualified for
appointment as a judge of a Special Court unless
he is or has been a District and Sessions Judge.
Page 9 of 38
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(4) Any person aggrieved by the order of the
Special Court may prefer an appeal to the High
Court within a period of sixty days from the date
of such order."
Section 30-B of the M.M.D.R. Act empowers the
State Government to constitute as many Special Courts as may
be necessary, by notification, to provide speedy trial of the
offences for contravention of the provisions of sub-section (1) or
sub-section (1-A) of section 4 of the M.M.D.R. Act. Section 4 of
the M.M.D.R. Act deals with the aspect of prospecting or mining
operation to be under licence or lease. Both the aforesaid sub-
sections of section 4 are quoted here-in-below:
4. Prospecting or mining operations to be
under licence or lease.-(1) No person shall
undertake any reconnaissance, prospecting or
mining operations in any area, except under and
in accordance with the terms and conditions of a
reconnaissance permit or of a prospecting
licence or, as the case may be, of a mining
lease, granted under this Act and the rules made
thereunder:
Provided that nothing in this sub-section
shall affect any prospecting or mining operations
undertaken in any area in accordance with terms
and conditions of a prospecting licence or mining
Page 10 of 38
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lease granted before the commencement of this
Act which is in force at such commencement:
Provided further that nothing in this sub-
section shall apply to any prospecting operations
undertaken by the Geological Survey of India,
the Indian Bureau of Mines, the Atomic Minerals
Directorate for Exploration and Research of the
Department of Atomic Energy of the Central
Government, the Directorates of Mining and
Geology of any State Government (by whatever
name called), and the Mineral Exploration
Corporation Limited, a Government company
within the meaning of clause (45) of section 2 of
the Companies Act, 2013 (18 of 2013), and any
other entities including private entities that may
be notified for this purpose, subject to such
conditions as may be specified by the Central
Government;
Provided also that nothing in this sub-
section shall apply to any mining lease (whether
called mining lease, mining concession or by any
other name) in force immediately before the
commencement of this Act in the Union territory
of Goa, Daman and Diu.
(1-A) No person shall transport or store or
cause to be transported or stored any mineral
otherwise than in accordance with the provisions
of this Act and the rules made thereunder."
Page 11 of 38
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During hearing of the case, the learned Advocate
General made a positive statement that the State Government is
not against setting up of Special Courts in terms of section 30-B
of the M.M.D.R. Act for trial of the offences in certain specified
districts of the State where such crimes are frequently reported
and is prepared to take effective steps in that regard, however
he emphasized on the word 'may' appearing in the section.
According to him, the legislature by using such word 'may' has
given discretion on the State Government to establish the Special
Courts and therefore, it should not be construed as mandatory.
In the case of State of Bombay -Vrs.- K. P.
Krishnan reported in A.I.R. 1960 S.C. 1223, the Hon'ble
Supreme Court was concerned with the 'discretion' conferred on
the Government by section 12(5) of the Industrial Disputes Act,
1947 to refer industrial disputes for adjudication. The Court held
that though the word used in this connection is 'may', that power
is coupled with duty, because of which the word 'may' must
mean 'shall'. This shows that when a power is coupled with duty,
its exercise almost ceases to be discretionary and it becomes
mandatory.
In the case of State of Uttar Pradesh -Vrs.-
Jogendra Singh reported in A.I.R. 1963 S.C. 1618, it is held
Page 12 of 38
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that when a discretion is conferred upon a public authority, which
is coupled with an obligation, the word 'may', which denotes
discretion, should be construed to mean a command. The Court
further held that the legislature uses the word 'may' out of
deference to the high status of the authority on whom the power
and the obligation are intended to be conferred and imposed, but
the word 'may' in such a situation is capable of meaning 'must'.
Law is well settled that mere use of word 'may' or
'shall' is not conclusive. The question whether a particular
provision of a statute is directory or mandatory cannot be
resolved by laying down any general rule of universal application.
Such controversy has to be decided by ascertaining the intention
of the Legislature and not by looking at the language in which
the provision is clothed and for finding out the legislative intent,
the Court must examine the scheme of the Act, purpose and
object underlying the provision, consequences likely to ensue or
inconvenience likely to result if the provision is read one way or
the other and many more considerations relevant to the issue.
(Ref: Bachahan Devi and Ors. -Vrs.- Nagar Nigam,
Gorakhpur : (2008) 12 Supreme Court Cases 372).
State of Odisha is endowed with vast resources of a
variety of minerals and occupies a prominent place in the
Page 13 of 38
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country as a mineral rich State. Currently, Odisha is endowed
with about one third of the estimated national mineral resources.
Abundant reserves of high grade Iron ore, Bauxite, Chromite,
Manganese ore along with other minerals such as, coal,
limestone, dolomite, tin, nickel, vanadium, lead, graphite, gold,
gemstone, diamond, dimension and decorative stones etc. are
extensively available in the State of Odisha. Occupying an
important position on the country's map, the rich minerals
reserves of Odisha constitute 28% iron ore, 24% Coal, 59%
Bauxite and 98% Chromite of India's total deposits. This has
opened up immense possibilities for locating mineral based
industries for manufacture of Steel, Ferroalloys, Cement,
Alumina/Aluminium, Refractories and Thermal Power etc. along
with setting up other auxiliary and ancillary downstream
industries. Apart from supporting thousands of jobs, the mining
industries provide raw materials, minerals and metals critical to
our economy. They provide the foundations for modern living,
innovation, engineering and achievements. As per the reports
available in the website, there are 243 numbers of various mines
existing in the State of Odisha as on 4th March 2020. The rich
minerals wealth of the State of Odisha is attributed to its
favourable geographical set up. Mined materials are needed to
Page 14 of 38
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construct roads and hospitals, to build automobiles and houses,
to make computers and satellites, to generate electricity and to
provide many other goods and services that consumers enjoy. In
addition, mining is economical important for any State and the
country.
The list submitted by the learned Advocate General
relating to the number of cases reported under the M.M.D.R. Act
in three different districts, namely, Keonjhar, Sundargarh and
Mayurbhanj indicates that it is increasing from time to time. The
reports submitted by learned District Judges as indicated show
about the pendency of the cases under the M.M.D.R. Act in most
of the districts. It is also reported that the trials under the
M.M.D.R. Act cases are being conducted by the learned
Magistrates.
At this juncture, it would be profitable to discuss the
two decisions of the Hon'ble Supreme Court placed by the
learned Advocate General, i.e. Kanwar Pal Singh -Vrs.- State
of Uttar Pradesh and another reported in (2020) 14
Supreme Court Cases 331 and Jayant and others -Vrs.-
State of Madhya Pradesh reported in (2021) 2 Supreme
Court cases 670.
Page 15 of 38
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In the case of Kanwar Pal Singh (supra), the order
of the Allahabad High Court in dismissing petition under section
482 of Cr.P.C. to quash the criminal prosecution, inter alia, for
commission of offences under sections 4 and 21 of the M.M.D.R.
Act was under challenge. The contention was raised that as per
section 22 of the M.M.D.R. Act, no Court can take cognizance of
offences under the M.M.D.R. Act except on a complaint in writing
by a person authorized by the Central or State Government. The
State police not being authorized could not have filed the charge
sheet/complaint. The Hon'ble Supreme Court relied upon the
decision of the Hon'ble Supreme Court in the case of State (NCT
of Delhi) -Vrs.-Sanjay reported in (2014) 9 Supreme Court
Cases 772 and other decisions and held as follows :
"15. We would again advert to the decision in
Sanjay (supra) which had overruled the
decision of the Calcutta High Court in Seema
Sarkar -Vrs.- State: (1995) 1 Cal LT 95
wherein the High Court held the proceedings to
be invalid and illegal as the Magistrate had taken
cognizance on the basis of a charge sheet
submitted by the police under section 21(2) of
the M.M.D.R. Act and section 379 of the Indian
Penal Code, observing that the cognizance was
one that cannot be split or divided. The High
Court had further observed that as the complaint
Page 16 of 38
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was not made in terms of section 22 of the
M.M.D.R. Act, 1957, the cognizance was bad and
contrary to law. We have already noted the
decision of the Delhi High Court which had
directed that the F.I.R. should not be treated as
registered under section 379 of the Indian Penal
Code but only under section 21 of the M.M.D.R.
Act, 1957. These decisions of the Calcutta High
Court and the Delhi High Court were reversed
and set aside by this Court in Sanjay (supra)
after referring to section 26 of the General
Clauses Act and the meaning of the expression
'same offence', to observe that the offence
under section 21 read with section 4 of the
M.M.D.R. Act, 1957 and section 379 of the
Indian Penal Code are different and distinct. The
aforesaid reasoning compels us to reject the
contention of the Appellant that the action as
impugned in the F.I.R. is a mere violation of
section 4 which is an offence cognizable only
under section 21 of the M.M.D.R. Act, 1957 and
not under any other law. There is no bar on the
Court from taking cognizance of the offence
under section 379 of the Indian Penal Code. We
would also observe that the violation of section 4
being a cognizable offence, the police could have
always investigated the same, there being no
bar under the M.M.D.R. Act, 1957, unlike section
13(3)(iv) of the TOHO Act.
Page 17 of 38
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16. In view of the aforesaid discussion, we
would uphold the order of the High Court
refusing to set aside the prosecution and
cognizance of the offence taken by the learned
Magistrate under section 379 IPC and sections 3
and 4 of the Prevention of Damage to Public
Property Act. We would, however, clarify that
prosecution and cognizance under section 21
read with section 4 of the MMDR Act, 1957 will
not be valid and justified in the absence of the
authorisation. Further, our observations in
deciding and answering the legal issue before us
should not be treated as findings on the factual
allegations made in the complaint. The trial
Court would independently apply its mind to the
factual allegations and decide the charge in
accordance with law. In light of the aforesaid
observations, the appeal is partly allowed, as we
have upheld the prosecution and cognizance of
the offence under section 379 IPC and sections 3
and 4 of the Prevention of Damage to Public
Property Act."
In the case of Jayant and others (supra), where the
common judgment and order passed by Madhya Pradesh High
Court in dismissing the applications under sections 482 of Cr.P.C.
to quash the first information reports registered for the offences,
inter alia, under sections 4/21 of the M.M.D.R. Act was
challenged, the Hon'ble Supreme Court held as follows:-
Page 18 of 38
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"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/F.I.R. even for the offences under the
M.M.D.R. Act and the Rules made thereunder
and at this stage the bar under Section 22 of the
M.M.D.R. Act shall not be attracted.
21.2. The bar under Section 22 of the M.M.D.R.
Act shall be attracted only when the learned
Magistrate takes cognizance of the offences
under the M.M.D.R. Act and the Rules made
thereunder and orders issuance of
process/summons for the offences under the
M.M.D.R. Act and the Rules made thereunder.
21.3. For commission of the offence under
I.P.C., 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
M.M.D.R. Act and the Rules made thereunder.
21.4. That in respect of violation of various
provisions of the M.M.D.R. Act and the Rules
made thereunder, 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/F.I.R. in respect of the violation of various
Page 19 of 38
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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 M.M.D.R. 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 M.M.D.R. 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 M.M.D.R. Act, there shall not be any
proceedings or further proceedings against the
offender in respect of the offences punishable
under the M.M.D.R. 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
Page 20 of 38
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I.P.C., such as, Sections 379 and 414 I.P.C. and
the same shall be proceeded with further.
22. In view of the above and for the reasons
stated above, the appeals filed by the
violators/private appellants are partly allowed,
to the extent quashing the proceedings for the
offences under the M.M.D.R. Act-Sections 4/21
of the M.M.D.R. Act only."
Both the decisions i.e. Kanwar Pal Singh (supra)
and Jayant and others (supra) were considered by a three
Judge Bench decision in the case of Pradeep S. Wodeyar
(supra). In that case, the dismissal order passed by the learned
Single Judge of the High Court of Karnataka in the two petitions
instituted by the two appellants to quash the criminal proceeding
initiated against them for offences, inter alia, under sections 21
and 23 read with sections 4(1) and 4(1-A) of the M.M.D.R. Act
was under challenge. The following contentions were raised by
the learned counsel for the appellants in that case-
(i) The order of the Special Judge taking
cognizance is contrary to law. Cognizance, it is
well settled, has to be taken of the offences and
not of the offender. Yet the Special Judge has
acted illegally, without application of mind in
taking cognizance of the Accused;
Page 21 of 38
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(ii) A-1 (Pradeep S. Wodeyar) cannot be held
vicariously liable since:
(a) He was not in-charge of the affairs of
the company at the relevant time during the
allegedly illegal transactions;
(b) He was in Indonesia and hence cannot
be held personally responsible;
(iii) The Special Court constituted Under Section
30-B of the M.M.D.R. Act has jurisdiction only to
try offences for contravention of section (4)(1)
or section 4(1-A) of the M.M.D.R. Act,
punishable under section 21(1). This power of
the Special Court does not extend to taking
cognizance (and conducting trial) of offences
punishable under the Indian Penal Code;
(iv) Section 193 Code of Criminal Procedure
bars the Court of Session from taking cognizance
of any offence as a Court of original jurisdiction
unless the case has been committed to it by the
Magistrate under the Code. The only exception is
if it has been otherwise expressly provided by
the Code of Criminal Procedure or by any other
law for the time being in force. There is no
specific provision in the M.M.D.R. Act or the
Code empowering the Court of Session to take
cognizance without an order of committal by the
Magistrate; and
Page 22 of 38
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(v) Section 22 of the M.M.D.R. Act stipulates
that no Court shall take cognizance of any
offence punishable under the Act or any Rules
made under it except upon a written complaint
made by a person authorized in this behalf by
the Central Government or the State
Government. There was no authorization for the
Inspector of the Lokayukta Police and hence
there has been a violation of the provisions of
Section 22.
The Hon'ble Supreme Court analyzing the
contentions raised by the respective parties held as follows:-
"34. Section 193 Code of Criminal Procedure
states that the Sessions Court shall not take
cognizance of an offence as a Court of original
jurisdiction unless the Magistrate commits the
case to it. The only exception is if it is expressly
provided otherwise by the Code or the statute.
Neither the Code nor the M.M.D.R. Act provide
that the Special Court could directly take
cognizance of the offences. Therefore, the
Sessions Court did not have the authority to
take cognizance. Section 209 Code of Criminal
Procedure provides the Magistrate the power to
commit the case. In Dharam Pal -Vrs.- State
of Haryana : (2014) 3 SCC 306, a
Constitution Bench while discussing whether the
committing Court was required under section
Page 23 of 38
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209 to take cognizance of the offence before
committing the case to the Court of Session,
held that the Magistrate could either commit the
case before or after taking cognizance. In this
case, the Special Court has directly taken
cognizance. It now needs to be determined if
this irregularity in the cognizance order vitiates
the entire proceedings for the order to be
quashed and set aside.
xxx xxx xxx
44. It needs to be determined if condoning the
irregularity of the cognizance order under
Section 465 would lead to a 'failure of justice'. In
our considered opinion, it would not lead to a
failure of justice for the following reasons:
xxx xxx xxx
(iii) Objective of the M.M.D.R. Act: The
appellants are accused of the commission of
offences under the M.M.D.R. Act involving the
export and transportation of minerals without
permit. Offences under the M.M.D.R. Act are
environmental crimes. These crimes impact upon
society at large. These offences cause a
detriment to and affect the well-being of the
entire community. Environmental crime is not
confined within geographical or State limits. The
impact of environmental crime transcends
borders and time. Environmental crime may or
may not have an immediately identifiable human
Page 24 of 38
// 25 //
victim but there can be no mistaking its
consequence for the entire bio-system of which
human beings are an intrinsic, but not the only
element. Environmental crime is in essence a
planetary crime, it affects every component of
the natural systems with which the planet has
been endowed. They constitute our heritage; a
heritage which is held in trust by the present for
the future. Illegal mining denudes the eco-
system of valuable resources. The destruction of
the natural environment has serious
consequences for the present and the future.
The M.M.D.R. Act must hence be construed in
this perspective. At one level, illegal mining
deprives the State of its revenues. But the law is
not merely a revenue yielding or regulating
measure. The essence of the law is to protect
human kind and every species whose existence
depends on natural resources from the
destruction which is caused by rapacious and
unregulated mining. The offences which have
been taken into account by Parliament while
enacting sub-sections (1) and (1-A) of Section 4
intrinsically affect the environment which, in
turn, affects the existence of communities who
depend on the environment and of every species
to whom it provides nurture and sustenance. It
is because of the wide-ranging impact of such
offences on the life of the community and on the
well-being of not only the present, but of the
Page 25 of 38
// 26 //
succeeding generations, that principles such as
the precautionary principle, the public trust
doctrine and the concept of sustainable
development have gained a sure jurisprudential
foundation. In environmental crime, there may
be no single, immediate victim. The act which
predicates the offence is a crime against
humanity. These crimes might not be perceived
in the present to have immediate, foreseeable or
quantifiable repercussions but there is no
mistaking that they impact the life of future
generations;
(iv) The Preamble of the Act at the time of its
enactment indicated that it is an "Act for
regulation of mines and the development of
minerals". This was substituted by Act 38 of
1999 to emphasise that the "Act provides for the
development and regulation of mines and
minerals". The amendment to the Preamble is
indicative of the intent of the legislature that
development and regulation must proceed hand-
in-hand, and in order to reduce the increasing
magnitude of environmental crime, development
needs to be regulated and sustainable. Thus,
when Parliament amended the M.M.D.R. Act to
include Section 30-B in 2015 for the constitution
of Special Courts which would be deemed to be
Courts of Session conferred with all requisite
powers, the object and purpose of the legislative
Page 26 of 38
// 27 //
provision must be borne in mind. The ultimate
object of the provision is to ensure that violators
are punished by a speedy process of trial before
a Court duly constituted in that behalf.
xxx xxx xxx
54. The Appellant had raised a contention that
even if the Special Judge had the power to take
cognizance of the offence, he could only have
taken cognizance of offences under the M.M.D.R.
Act and could not have taken cognizance (and
conduct trial) of the offences under the
provisions of Indian Penal Code. For this
purpose, the counsel for the appellant referred
to Section 30-B(1) of the M.M.D.R. Act which
states that the State Government may for
providing speedy trial of offences under Section
4(1) or Section 4(1-A) of the M.M.D.R. Act
constitute Special Courts.
xxx xxx xxx
56. In the case before us, the Special Judge
took cognizance and issued summons against
the appellants for offences under Sections 409,
420 read with Section 120B I.P.C.; Sections 21
and 23 read with Sections 4(1), 4(1-A) of the
M.M.D.R. Act; and Rule 165 read with Rule 144
of the Karnataka Forest Rules, 1969. According
to the First Schedule of the Cr.P.C., the offences
under Sections 409 and 420 are triable by the
Magistrate of the First Class. Section 209 Cr.P.C.
Page 27 of 38
// 28 //
states that if it appears to the Magistrate that
the offence is triable exclusively by the Court of
Session, then he shall commit the case to the
Court of Session. Section 2(hc) of the M.M.D.R.
Act states that a Special Court constituted under
Section 30-B(1) of the Act is deemed to be the
Court of Session. A Special Court designated
under the M.M.D.R. Act is a Court of Session
which is exclusively vested with the power to try
offences under the Act. While the offences under
Sections 409 and 420 I.P.C. are triable by the
Judicial Magistrate First Class, the issue is
whether the offences under the I.P.C. can be
tried jointly with the offences under the
M.M.D.R. Act by the Special Court.
xxx xxx xxx
60. Therefore, on a combined reading of
Sections 4 and 5 of Cr.P.C. along with Section
30-C of the M.M.D.R. Act, it is apparent that the
procedure prescribed under the Code shall be
applicable to proceedings before the Special
Court unless the M.M.D.R. Act provides anything
to the contrary. These provisions incorporate the
principle of express repeal i.e., unless any
provision of the Cr.P.C. is expressly repealed by
the provisions of the M.M.D.R. Act, the
procedure prescribed under the Cr.P.C. would
apply to the proceedings before the Special
Court. Provisions of the PC Act, POCSO Act and
Page 28 of 38
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NIA Act which expressly provide that the Special
Court may try offences under the statute along
with other offences is only clarificatory. It is
settled law that while contextually interpreting a
provision, reference to other statutes which
are pari materia can be made [Harshad Mehta
v. State of Maharashtra, (2010) 8 SCC
257]. However, since the provisions in the
similar statute on combined trial are only
clarificatory, the reference to external aids offers
no support to the argument of the appellant.
xxx xxx xxx
62. Since there is no express provision that
excludes the application of section 220 Code of
Criminal Procedure, it needs to be examined if
the M.M.D.R. Act has by necessary implication
excluded the application of section 220 Code of
Criminal Procedure. In this context, it needs to
be determined if section 30-B of the M.M.D.R.
Act while establishing the Special Court for
offences under section 4 of the M.M.D.R. Act, by
necessary implication excludes the application of
section 220 Code of Criminal Procedure.
xxx xxx xxx
66. Section 30-B of the M.M.D.R. Act provides
for the constitution of the Special Court for
'speedy trial of offences for contravention of the
provisions' of Section 4 of the Act. Does the fact
that the Special Court has jurisdiction to try
Page 29 of 38
// 30 //
offences under the M.M.D.R. Act oust the
jurisdiction of the Special Court to try offences
under any other law (in this case the I.P.C.). As
has been noted above, the provisions of the
Code may be held to be impliedly repealed, only
if there is a 'direct conflict' between the
provisions such that it is not possible to
harmoniously interpret the provisions. It thus
needs to be analysed whether Section 30-B of
the M.M.D.R. Act and Section 220 Cr.P.C. can be
harmoniously construed.
67. The Judicial Magistrate First Class is
invested with the authority to try offences under
Sections 409 and 420 I.P.C. On the other hand,
the Sessions Judge is appointed as a Special
Judge for the purposes of the M.M.D.R. Act. If
the offences under the M.M.D.R. Act and the
I.P.C. are tried together by the Special Judge,
there arises no anomaly, for it is not a case
where a Judge placed lower in the hierarchy has
been artificially vested with the power to try the
offences under both the M.M.D.R. Act and the
Code. Additionally, if the offences are tried
separately by different fora though they arise
out of the same transaction, there would be a
multiplicity of proceedings and wastage of
judicial time, and may result in contradictory
judgments. It is a settled principle of law that a
construction that permits hardship,
Page 30 of 38
// 31 //
inconvenience, injustice, absurdity and anomaly
must be avoided. Section 30-B of the M.M.D.R.
Act and Section 220 Cr.P.C. can be harmoniously
construed and such a construction furthers
justice. Therefore, Section 30-B cannot be held
to impliedly repeal the application of Section 220
Cr.P.C. to the proceedings before the Special
Court.
xxx xxx xxx
75. The Special Judge, it must be noted, took
cognizance on the basis of a report submitted
under section 173 Cr.P.C. and not on the basis
of a private complaint. Therefore, the case is
squarely covered by the decision in Afroz
Mohammed Hasanfatta (supra). The Special
Judge took note of the F.I.R., the witness
statements, and connected documents before
taking cognizance of the offence. In this
backdrop, it would be far-fetched to fault the
order of the Special Judge on the ground that it
does not adduce detailed reasons for taking
cognizance or that it does not indicate that an
application of mind. In the facts of this case,
therefore, the order taking cognizance is not
erroneous.
76. Section 22 of the M.M.D.R. Act stipulates
that no Court shall take cognizance of any
offence punishable under this Act or Rules,
except upon a complaint made in writing by a
Page 31 of 38
// 32 //
person authorised on that behalf by the Central
or the State Government. It has been contended
by the Appellant that before the Special Court
(Sessions Court) took cognizance of the offence,
no complaint was filed by the authorised person.
77. In State (NCT of Delhi) -Vrs.- Sanjay :
(2014) 59 OCR (SC) 522, the principal
question which was formulated for the decision
of a two-Judge Bench was whether the
Magistrate has the power to take cognizance of
the offence upon a police report without a
complaint from the authorised person under
Section 22 of the M.M.D.R. Act. Justice M.Y.
Eqbal, delivering the judgment for the two-
Judge Bench, held that Section 22 only bars the
prosecution and cognizance of offences for
contravention of Section 4 of the M.M.D.R. Act
without a written complaint and not for offences
under the provisions of the Indian Penal Code.
The Court also noted the object and policy
underlying the M.M.D.R. Act in the context of
environmental protection. The Court observed:
62. Sub-section (1-A) of Section 4 of the
M.M.D.R. Act puts a restriction in
transporting and storing any mineral
otherwise than in accordance with the
provisions of the Act and the Rules made
thereunder. In other words, no person
will do mining activity without a valid
lease or licence. Section 21 is a penal
provision according to which if a person
Page 32 of 38
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contravenes the provisions of sub-section
(1-A) of Section 4, he shall be prosecuted
and punished in the manner and
procedure provided in the Act. Sub-
section (6) has been inserted in Section 4
by amendment making the offence
cognizable notwithstanding anything
contained in the Code of Criminal
Procedure, 1973. Section 22 of the Act
puts a restriction on the Court to take
cognizance of any offence punishable
under the Act or any Rule made
thereunder except upon a complaint
made by a person authorised in this
behalf. It is very important to note that
Section 21 does not begin with a non-
obstante clause. Instead of the words
"notwithstanding anything contained in
any law for the time being in force no
court shall take cognizance....", the
Section begins with the words "no Court
shall take cognizance of any offence."
xxx xxx xxx
70. There cannot be any dispute with
regard to restrictions imposed under the
M.M.D.R. 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 authorised 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
Page 33 of 38
// 34 //
authorised 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
person 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.
In view of the above discussion, the Court
held:
(i) The ingredients constituting an
offence under the M.M.D.R. Act and the
ingredients of the offences under the
Indian Penal Code are distinct; and
(ii) For the commission of an offence
under the Indian Penal Code, on receipt
of a police report, the Magistrate having
jurisdiction can take cognizance without
awaiting a complaint by the authorized
officer. A complaint is required in terms
of Section 22 only for taking cognizance
in respect of a violation of the provisions
of the M.M.D.R. Act.
xxx xxx xxx
85. In view of the discussion above, we
summarize our findings below:
Page 34 of 38
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(i) The Special Court does not have, in the
absence of a specific provision to that effect, the
power to take cognizance of an offence under
the M.M.D.R. Act without the case being
committed to it by the Magistrate under Section
209 Cr.P.C. The order of the Special Judge dated
30 December 2015 taking cognizance is
therefore irregular;
xxx xxx xxx
(vi) The Special Court has the power to take
cognizance of offences under M.M.D.R. Act and
conduct a joint trial with other offences if
permissible under Section 220 Cr.P.C. There is
no express provision in the M.M.D.R. Act which
indicates that Section 220 Cr.P.C. does not apply
to proceedings under the M.M.D.R. Act;
(vii) Section 30-B of the M.M.D.R. Act does not
impliedly repeal Section 220 Cr.P.C. Both the
provisions can be read harmoniously and such
an interpretation furthers justice and prevents
hardship since it prevents a multiplicity of
proceedings;
(viii) Since cognizance was taken by the Special
Judge based on a police report and not a private
complaint, it is not obligatory for the Special
Judge to issue a fully reasoned order if it
otherwise appears that the Special Judge has
applied his mind to the material."
Page 35 of 38
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6. Adverting to the contentions raised by the learned
Advocate General and in view of the aforesaid recent decision of
the Hon'ble Supreme Court in the case of Pradeep S. Wodeyar
(supra), since the Special Court has got the power to take
cognizance of the offences under the M.M.D.R. Act along with the
connected offences under Indian Penal Code on the basis of a
report submitted by police under section 173 of Cr.P.C. and to
conduct joint trial of all such offences if permissible under section
220 of Cr.P.C., taking into account the purpose of amendment
made in the M.M.D.R. Act in the year 2015, particularly making
stronger provision for checking illegal mining and further fact
that the penal provision has been made more stringent by
prescribing higher penalties up to rupees five lakh per hectare
and imprisonment up to five years and taking into the
importance of mines in the State of Odisha, the revenue
generated from it, the increasing numbers of crimes reported
under the M.M.D.R. Act particularly in some districts like
Mayurbhanj, Sundargarh and Keonjhar as per the list submitted
by the learned Advocate General, so also in some other districts
as reported by the learned District Judges and the positive
statement made by the learned Advocate General that the State
Government is not against constitution of Special Courts under
Page 36 of 38
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section 30-B of the M.M.D.R. Act and since the power of the
State Government to establish such Courts for providing speedy
trial of the offences is coupled with duty, this Court expects the
State Government to take necessary effective steps in that
regard at an earliest in consonance with the provision under
section 30-B of the M.M.D.R. Act for constitution of Special
Courts for speedy trial of offences for contravention of the
provisions of sub-section (1) or sub-section (1-A) of section 4 of
the M.M.D.R. Act so also the other connected offences as held by
the Hon'ble Supreme Court in the case of Pradeep S. Wodeyar
(supra).
7. Coming to the anticipatory bail application of the
petitioner, Mr. Arupananda Das, the learned Addl. Govt.
Advocate produced the written instruction from the Inspector in-
charge of Jakhapura police station and submitted that the
petitioner has got as many as seven criminal antecedents apart
from the case in hand. The list furnished by the learned counsel
for the State indicates that out of those seven cases, two cases
are of the year 2015, one case is of the year 2016, two cases are
of the year 2018 and also two cases are of the year 2020.
In view of the criminal proclivity of the petitioner and
the nature of accusation against the petitioner, I am not inclined
Page 37 of 38
// 38 //
to grant anticipatory bail to him. Accordingly, the anticipatory
bail application stands rejected. The interim protection order
dated 09.02.2022 which was extended further on 15.02.2022
stands vacated.
8. Before parting, I feel it appropriate to express my
unreserved and deep appreciation for the learned Advocate
General as he immediately agreed to argue the matter and
rendered ample valuable assistance by doing very laborious work
and showed all fairness during his enlightened argument which
helped in arriving at a just decision.
A free copy of the order be handed over to the
learned Advocate General for compliance.
Issue urgent certified copy as per Rules.
...............................
S.K. Sahoo, J.
Odisha High Court, Cuttack The 21st February 2022/PKSahoo Page 38 of 38