Orissa High Court
Jagabandhu Muduli vs State Of Odisha .... Opposite Party on 25 January, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 13376 of 2023
(An application under Section 438 of the Criminal Procedure
Code)
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Jagabandhu Muduli ...... Petitioner
-Versus-
State of Odisha .... Opposite Party
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. P.K.Rath, Sr.Advocate.
S.Rath
For Opp. Party : Mr. S.K. Mishra, ASC
Mr. S.Palit, Sr. Advocate along with
Mr. A.Mishra Advocate (for informant)
for the State.
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
25th January, 2024 SASHIKANTA MISHRA, J.
The petitioner is apprehending arrest in connection with Nihal Prasad P.S. Case No. 0235 of 2023 for the alleged commission of offence under Sections 420/465/467/468 of IPC read with Section 68 of OMMC Rules, 2004.
2. The aforementioned case has been registered on basis of the letter dated 17.11.2023 submitted by Tahasildar, Gondia Page 1 of 8 before the IIC, Nihal Prasad Police Station in purported compliance of the order dated 19.10.2023 passed by the National Green Tribunal in O.A. No. 46 of 2023. It has been alleged that the petitioner, being the proprietor of M/s. Jagabandhu Enterprises Ltd, practised fraud by furnishing a fraudulent letter bearing No. SR. GMCPC e-Tender, Agarpada (PKG-25-03) by 56/2013/1014(12) of dated 29.12.2021 and obtained work order/quarry permit dated on 10.10.2022 and therefore, any road metal extracted by him amounts to environmental violation, damage and degradation of environment for which appropriate compensation is to be reassessed and recomputed against him.
3. Heard Shri P.K.Rath, learned Senior Counsel with Mr. S.Rath Advocate for the petitioner, Mr. S.K.Mishra learned ASC for the State and Mr. S.Palit, learned Senior Counsel along with Mr. A. Mishra Advocate for the claimant.
4. Learned Senior Counsel Mr. Rath has argued that the order passed by the National Green Tribunal basing on which the criminal proceeding has been initiated against the petitioner, has been stayed by a Division Bench of this Court as per order passed in W.P.(C). No. 37123 of 2023. As such, Page 2 of 8 the very basis of the criminal proceeding is rendered non- existent. Mr. Rath further argues that even otherwise, Rule 51(1)(iv) and 51(1)(v) of OMMC Rules provides for compounding of the alleged offences and therefore, the proceeding could not have been initiated against him without taking recourse to such provision. He has also argued that whether the letter in question is a forged letter or not can only be decided during trial. That apart, the IPC offences alleged against the petitioner are all triable by Magistrate First Class. Hence, he argues, the petitioner's liberty should not be curtailed. Mr. Rath has also challenged the locus standi of Mr.Palit's client (claimant) by arguing that he cannot step into the shoes of the informant, who is the Tahasildar.
5. Mr. S.K.Mishra, learned State Counsel has argued that the use of the fraudulent letter in question has not been specifically denied by the petitioner which, prima facie shows his involvement in the alleged occurrence. That apart, the Division Bench of this Court, being in seisin over the matter, the prayer for anticipatory bail should be kept in abeyance till disposal of the writ petition.
Page 3 of 8
6. Learned Senior Counsel Mr. Palit submits that his client had brought the illegality committed by the petitioner to light by approaching the National Green Tribunal and had also participated in the hearing. Therefore, he has a valid stake in the matter. He also submits that the prayer for anticipatory bail should be kept in abeyance till disposal of the writ petition. Even otherwise, according to Mr. Palit, the petitioner is guilty of committing gross illegality by obtaining permit for excavation of minor minerals utilising the fraudulent letter of OPTCL. The OPTCL has categorically informed that such letter was never issued which prima facie proves the case of the prosecution.
7. I have heard learned counsel for the parties at length and also perused the materials on record including the case dairy and the written objection filed by the claimant Kalakar Barik. There is no dispute that the learned National Green Tribunal in its order dated 19.10.2023 directed as follows:
"In the light of the facts and circumstances of the case, we dispose of this original application with a direction to the State respondents to re-assess/ re- compute Environmental Compensation against the Respondent No.9 in exercise of powers conferred in Section 51 of OMMC Rules, 2016."Page 4 of 8
It is common ground that basing on such direction the criminal proceeding in question has been initiated. As it appears, the petitioner's firm has challenged the order of the learned National Green Tribunal before this Court in W.P.(C). No. 37123 of 2023. By order dated 23.11.2023, a Division Bench of this Court while issuing notice on the writ petition have passed the following order:
"As an interim measure, it is directed that the order dated 19.10.2023 passed by the National Green Tribunal, Eastern Zone, Kolkata in O.A. No. 46/2023/EZ(I.A. No. 25/2023/EZ & I.A. 33/2023/EZ) shall remain stayed till the next date."
The situation that emerges thus is, the basis on which the criminal proceeding was initiated has been stayed by this Court. True, the criminal proceeding as such has not been stayed but then it goes without saying that if the order of the National Green Tribunal is ultimately disturbed by the writ Court, it may have a material bearing on the criminal proceeding. Be that as it may, it has been alleged that the petitioner obtained work order/permit for excavation of minor minerals utilising certain forged letters. Whether the letter in question was forged or the same is genuine, is a matter that can be determined by evidence adduced during trial. This Page 5 of 8 Court also takes note of the provision under Rule 51 of OMMC Rules, Clause1, Sub-clause (iv) and (v), which reads as follows:
"(iv) Where the offender agrees in writing to compound the offence punishable under these rules, the Tahasildar or Deputy Director or Mining Officer or Divisional Forest Officer, within their respective jurisdiction, shall, either before or after filing the complaint, compound the offence on payment of such sum, as determined by the officers mentioned under clause (ii), not exceeding the maximum amount of fine prescribed under these rules and value of the mineral and other properties seized and on payment of such fine and value, the seized mineral and properties shall be released forthwith: Provided that the accused shall be liable to furnish an undertaking or bond to the effect that he shall not commit such offence in future: Provided further that, in case the offender fails to pay the value of mineral and any other property, such properties shall be confiscated to Government and disposed of through public auction.
(v) Where an offence under these rules is compounded, no proceeding or further proceeding, as the case may be, shall be initiated against the offender in respect of the offence so compounded and the offender, if in custody, shall be released forthwith.".
It is thus apparent that the statute itself provides for compounding of the alleged offences. In such view of the matter, it would be a harsh action if the petitioner is taken to custody at this initial stage. That apart, being the proprietor of a firm engaged in mining the petitioner is obviously a person with some standing in the society. Therefore, at least at this stage, if he is taken to custody, it would amount to lowering his prestige in the society.
8. As regards locus standi of Mr. Palit's client, this Court finds that the proceeding before the National Green Tribunal Page 6 of 8 was initiated on his application. He, therefore, definitely has a say in the matter. However, from a technical point of view the Tahaslidar, Nihal Prasad is to be treated as the informant. Mr. Palit's client can always assist the prosecution in the case by taking recourse to the provision of Section 301(2) of Cr.P.C.
9. Thus, from a conspectus of the discussion and analysis made hereinbefore, this Court is of the considered view that the petitioner has made out a case for grant of pre-arrest bail particularly, in view of the fact that the order of National Green Tribunal forming basis of the criminal proceeding has been stayed. Moreover, nothing has been placed on record by the prosecution to show that custodial interrogation of the petitioner is essentially required for investigation.
10. For the foregoing reasons therefore, the ABLAPL is allowed. It is directed that in the event of arrest, the petitioner shall be released by the Arresting Officer on such terms and conditions as he may deem fit and proper to impose including the condition that he shall render full cooperation in the investigation and make himself available as and when required by the Investigating Officer. Page 7 of 8
11. The ABLAPL is accordingly disposed of.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 25th January, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 25-Jan-2024 19:20:11 Page 8 of 8