Madras High Court
P. Periyasamy vs The Inspector Of Police
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)No.10475 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 13.12.2024
Delivered on 18.12.2024
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD) No.10475 of 2017
and
Crl.M.P. (MD) No.7165 of 2017
1.P. Periyasamy
2.P. Babu @ Krishnamoorthy
3.P. Arun Raja
4.E. Madhankumar
5.M. Karunanithi ... Petitioners
Vs.
1.The Inspector of Police,
Melur Police Station,
Melur, Madurai District.
Crime No.618 of 2012.
2.The Village Administrative Officer,
Thumbaipatti Village,
Melur Taluk, Madurai District. ... Respondents
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Crl.O.P.(MD)No.10475 of 2017
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the records of the case in P.R.C.No.
10 of 2017 on the file of the Judicial Magistrate, Melur and quash the
same.
For Petitioners : Mr.N.R.Elango
Senior Counsel
for M/s.J.Udhayakumar
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
This petition has been filed by A1 to A3 and A7 and A8 to quash the proceedings pending in P.R.C.No.10 of 2017 on the file of the learned Judicial Magistrate, Melur.
2.The case of the prosecution is that the first petitioner (A1) was assigned with lease for quarrying multicoloured granite over an extent of 1.660 hectares compromised in S.F.Nos.218/3A, 218/3B, 218/3C, 218/4, 218/5 and 218/8 at Thumbaipatti Village, Melur Taluk, vide G.O.(30D) No.7, Industries (MMB-1) Department, dated 21.01.2006. This lease was granted for a period of 20 years. While 2/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 granting this lease, the Government had imposed certain conditions to be followed by the licensee during the lease period and an undertaking was also given by A1 by way of filing an affidavit that he will comply with all the conditions.
3.The further case of the prosecution is that several complaints were received from the villagers and others to the effect that quarrying is done in the adjacent land which has been categorized as a “Odai Poramboke” land in Survey No.218/2 measuring an extent of 0.12.0 hectares. That apart, it was also complained that A1 along with others was quarrying in another patta land for which no lease was granted, in Survey No.218/1B measuring an extent of 0.45.0 hectares.
4.An inspection was conducted by a special team and it came to light that the accused persons had quarried and taken away multicoloured granites to the tune of nearly Rs.46.43 crores. Accordingly, an FIR came to be registered in Crime No.618 of 2012. On completion of investigation, police report was filed before the learned Judicial Magistrate, Melur, for offence under Sections 447, 379, 420, 3/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 430, 434, 465, 467, 468, 471 of IPC read with Section 109 and Section 114 of IPC read with Section 3(i)(ii) and 4 of Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 and Section 6 read with 3(a) and 4(a) of the Explosive Substances Act, 1908 read with Section 120(b) of IPC.
5.When the matter came up for hearing on 09.12.2024, this Court heard the learned Senior Counsel appearing on behalf of the petitioners and passed the following order:
“Heard Mr.N.R.Elango, learned Senior Counsel appearing on behalf of the petitioners.
2.The sum and substance of the submission made by the learned Senior Counsel is that no offence has been made out under Section 120(b) read with Sections 447, 379, 420, 434, 465, 467, 468, 471 read with Section 109 of IPC. It was further contended that no offence has been made out under Section 3(a) and 4(a) of the Explosive Substances Act, 1908 and the accused persons going back on an undertaking affidavit cannot constitute an offence of forgery and therefore, the offence under Sections 465, 467, 468 and 471 of IPC is also 4/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 not made out.
3.The learned Senior Counsel further submitted that Section 161 statement recorded from the witnesses are completely unbelievable and each and every so called eyewitness has parroted the same statement as if they witnessed right from the time the accused persons entered into a conspiracy till the completion of the process of illegal mining. It was further contended that the so called illegal mining had taken place in the adjacent land and for the license that was given to A1 for Survey Nos.218/3A etc., a show-cause notice came to be issued in the year 2011 mainly on the ground that the accused person has discontinued the quarry operation for more than two years. If that is so, it is quite unbelievable that the quarry operation had taken place in the adjacent land which is categorized as a waterbody.
4.The last submission that was made by the learned Senior Counsel is that the Court below did not apply its mind to the materials relied upon by the prosecution and the Court below has taken cognizance of the case in a mechanical fashion.
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5.The learned Senior Counsel also brought to the notice of this Court the earlier order passed by this Court in Crl.O.P. (MD) No.9903 of 2017, dated 15.11.2024, dismissing the quash petition filed almost on similar grounds and submitted that the finding that has been rendered in that order requires reconsideration and that when the cognizance has been taken without any application of mind, the same has to be interfered by this Court in exercise of its jurisdiction under Section 482 of Cr.P.C. and the petitioners cannot be driven to challenge by way filing a discharge petition before the concerned Court. To substantiate this submission, the learned Senior Counsel relied upon two recent orders passed by the Apex Court in the case of Mukesh and Ors., v. The State of Uttar Pradesh & Ors., dated 29.11.2024 and Rajnish Kumar Biswakarma v. State of NCT of Delhi & another, dated 21.11.2024.
6.The learned Senior Counsel ultimately concluded his submission by submitting that the delay that has occasioned in this case should not be put against the petitioners since, it involves their liberty which is protected under Article 21 of the Constitution of India. Therefore, this Court can always look into the materials placed before the Court and take a decision 6/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 as to whether on the available materials, the offence has been made out against the petitioners in order to make them undergo the ordeal of a trial.
7.Post this case under the caption 'part-heard cases' to enable the learned Additional Public Prosecutor to make his submission on 13.12.2024.”
6.The learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that A1 along with others were quarrying in the odai poramboke and also in a patta land for which no license was granted. The same has been explained in the police report in detail. That apart, the export details that were collected during the period 2006 and 2007 shows that the accused persons were actively involved in quarrying granite during the relevant point of time. Therefore, the stand taken by the accused persons as if there was no quarrying operation and it was stopped, is totally unsustainable. The learned Additional Public Prosecutor further submitted that LW4 to LW8 are the eye witnesses who have spoken about the conspiracy and the quarrying operation that was illegally done by the accused persons. Their statements will have to be taken as it is and it cannot be appreciated like a deposition at this point of 7/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 time. The learned Additional Public Prosecutor also pointed out to the statements recorded from LW.14 and LW.21 to LW.34 who were the evaluation team members who evaluated the total illegal quarrying that took place and the total loss caused to the Government to the tune of Rs. 46.43 crores. The learned Additional Public Prosecutor also relied upon the spot inspection report submitted by the Tahsildar examined as LW.
38. Further reliance was also placed on the statement recorded from the Block Development Officer and the Assistant Engineer who speak about the cost that was involved to restore the odai poramboke.
7.The learned Additional Public Prosecutor further submitted that an offence under Sections 447 and 379 has been made out since the accused persons have trespassed into the Government property and also stolen the granites by making illegal quarrying. By doing so, there is a wrongful gain to the accused persons and wrongful loss to the Government and therefore, the offence under Section 420 of IPC is also made out. The learned Additional Public Prosecutor further submitted that by causing wide damage to the odai poramboke, it also attracts offence under Section 434 of IPC and under the Tamil Nadu Public 8/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 Property (Prevention of Damage and Loss) Act, 1992. It was submitted that explosives were used for damaging the Government property and it was procured from persons had no license and therefore, there is violation under the Explosive Substances Act and Explosives Rules.
8.The learned Additional Public Prosecutor submitted that the case in hand is a clear abuse of process of Court since this quash petition was filed in the year 2017 and it was not prosecuted and as a result was dismissed in the year 2021. Thereafter, the matter went before the Special Court for Mines and Minerals (Development and Regulation) Act, Madurai and the same was taken on file in Special S.C.No.39 of 2024. The accused persons thereafter filed an application for restoration in the year 2024 and revived the entire case. The learned Additional Public Prosecutor brought to the notice of this Court the order passed in Crl.O.P.(MD) No.9903 of 2017 dated 15.11.2024, where on similar set of facts, the quash petition was dismissed by this Court by order dated 15.11.2024. The learned Additional Public Prosecutor clarified the fact that no independent proceedings have been initiated under the Mines and Minerals (Development and Regulation) Act.
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9.This Court carefully considered the submissions made on either side and materials available on record.
10.There is no dispute with regard to the lease for which permission was granted by the Government for excavating multicoloured granites. The manner in which the illegal quarrying was done in the odai poramboke in Survey No.218/2 and in the patta land in which no lease was granted in Survey No.218/1B, has been spoken to by LW.4 to LW.8. Just because the statements sound parrot-like, that is not a reason to doubt those statements at this stage.
11.The amount of illegal quarrying that had taken place has been spoken to by LW.38 who made a spot inspection. Apart from that, a special team was constituted and the members of this team have also spoken about the volume of illegal granite that was excavated and the loss that was caused to the Government. The statements of LW.14, LW. 21 to LW.34 has been recorded in this regard. Apart from that, the statement of LW.39 and LW.40 also shows the amount of damage that 10/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 has been caused and the cost that will be incurred to restore the property.
12.This Court had an occasion to deal with similar set of facts in Crl.O.P.(MD) No.9903 of 2017. Each and every ground that was raised on the side of the petitioners was considered in detail and this Court held that the offence is made out as against the accused persons.
13.There is no reason for me to take a different view from the earlier view that was taken in Crl.O.P.(MD) No.9903 of 2017 by order dated 15.11.2024. The materials available before this Court sufficiently makes out all the offences. There is abundant material to make the accused persons face the trial in this case. On the materials before this Court, even though this Court is inclined to make strong observations on the amount of illegal quarrying that has taken place in this case, this Court is intentionally avoiding making any such observations since it will adversely affect the interest of the accused persons. The case in hand, does not contain any merits warranting the exercise of jurisdiction under Section 482 of Cr.P.C. 11/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017
14.This Court must also necessarily comment on the tactics employed by the accused persons to delay the proceedings. The quash petition was filed in the year 2017 and it was dismissed for default in the year 2021. No steps were taken by the petitioners to restore the quash petition. The case ultimately reached the Special Court and it was numbered as Special S.C.No.39 of 2024 and at that time, a restoration petition is filed before this Court and the petition is restored and argued on merits. The petitioners have successfully dragged on a case which lacks merits.
15.In fine, this Criminal Original Petition is dismissed and there shall be a direction to the Special Court for MMDR Act cases, Madurai, to dispose of the Special S.C.No.39 of 2024 within a period of six months from the date of receipt of a copy of this order. The trial shall be conducted on a day-to-day basis in accordance with the guidelines given by Hon'ble Supreme Court reported in Vinod Kumar v. State of Punjab [2015 (1) MLJ (Crl) 288 SC]. If the petitioners adopt any dilatory tactics, it is open to the trial Court to insist upon the presence of the petitioners and remand him to custody as per the judgment of 12/14 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.10475 of 2017 the Hon'ble Supreme Court in State Of Uttar Pradesh v. Shambhu Nath Singh (JT 2001 (4) SC 3191). Consequently, connected miscellaneous petition is closed.
18.12.2024
NCC : Yes
Index : Yes
Internet : Yes
PKN
To
1.The Inspector of Police,
Melur Police Station,
Melur, Madurai District.
Crime No.618 of 2012.
2.The Village Administrative Officer,
Thumbaipatti Village,
Melur Taluk, Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
13/14
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.10475 of 2017
N.ANAND VENKATESH,J.
PKN
Crl.O.P.(MD)No.10475 of 2017
Dated: 18.12.2024
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