Jharkhand High CourtMd. Nasim @ Md. Nasim Ansari vs The State Of Jharkhand ...... Opp. Party on 16 November, 2022Author:Sanjay Kumar DwivediBench:Sanjay Kumar Dwivedi1\n\n       IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                     Cr.M.P. No. 10 of 2015\n\n     1. Md. Nasim @ Md. Nasim Ansari\n     2. Harishankar Mishra\n                                                  ......   Petitioners\n                           Versus\n  The State of Jharkhand                      ...... Opp. Party\n                        ---------CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI\n                        ---------\nFor the Petitioners     : Mr. Mohammad Asghar, Advocate\nFor the State            : Mr. P.A.S. Pati, G.A.-II\n                        ...........\n\n12/Dated: 16/11/2022Heard Mr. Mohammad Asghar, learned counsel for the petitioners and\n\nMr. P.A.S. Pati, learned counsel for the State.2.           This petition has been filed for quashing of F.I.R. and entire criminal\n\nproceeding including order taking cognizance dated 31.10.2014 and 13.05.2015\n\npassed in connection with Mahuadanr P.S. Case No. 39 of 2014, corresponding to\n\nG.R. Case No. 651 of 2014, pending in the Court of learned A.C.J.M. at Latehar.3.           The F.I.R. has been lodged      on the basis of self statement of one\n\nAshok Kumar, S.I.-cum-Officer, Incharge of Mahuadanr P.S. recorded on\n\n30.08.2014 at 11.10 hrs, alleging therein that he received secret information that a\n\nred colour dumper is standing at Ranchi Road loaded with illegal stone chips. On\n\nthe said information, the informant went there for verification and saw that a\n\ndumper without number is standing loaded with 300 cft. stone chips and driver\n\nwas also there. On interrogation, the driver of the said vehicle neither produced\n\nthe paper of stone nor he has shown any document of the dumper. The driver\n\ndisclosed his name as Md. Nasim Ansari and told that he is bringing the stone\n\nchips from the crusher situated at Gajadharpur and the said dumper and crusher\n\nbelongs to one Sri Harishankar Mishra. The alleged stone chips is to be unloaded\n\nat the under-construction house of Sri Baijnath Prasad Gupta of Mahuadanr. The\n\ninformant has seized the dumper loaded with stone chips before the two\n\nindependent witnesses and accordingly, the F.I.R. was registered undersection\n\n414of the I.P.C. and under Rule 54/67 of the Jharkhand Minor Mineral Concession2Rules, 2004.4.             Mr. Mohammad Asghar, learned counsel for the petitioners assailed\n\nthe cognizance order on the ground that the learned court has taken cognizance\n\nundersection 414I.P.C. and under Rule 54/67       of Jharkhand Minor Minerals\n\nConcession Rules, 2004. He further submits that in the light of Rule 57 of the said\n\nRule only authorized person can file the complaint however in the case in hand,\n\nthe police officer has filed the F.I.R. and in view of that Rule, the said F.I.R. is not\n\nmaintainable. He further submits that so far assection 414of I.P.C. is concerned,\n\nthat is not attracted as the document for selling of chips in question has been\n\nbrought on record. He further submits that           petitioner no. 2     having lease\n\nagreement for 10 year by the Government of Chhattisgarh Government annexed\n\nas Annexure 4 series to the main petition. On these grounds he submits that the\n\nentire criminal proceeding including cognizance order is bad in law and fit to be\n\nquashed.5.             On the other hand Mr. P.A.S. Pati, learned counsel for the State\n\nsubmits that admittedly the F.I.R. was registered by the police officer. He draws\n\nthe attention of the Court to section 22 of the M.M.D.R. Act and submits that said\n\nsection speaks that no court can take cognizance of any offence punishable under\n\nthis Act or any Rules made thereunder except upon complaint in writing made by a\n\nperson authorized. He draws the attention of the Court to Rule 57 of the\n\nJharkhand Minor Mineral Concession Rules, 2004 and submits that name of the\n\nperson authorized for filing complaint has been disclosed therein and it has been\n\nstipulated therein that in absence of that no court can take cognizance. Section 22\n\nof the M.M.D.R. Act and Rule 57 of the Jharkhand            Minor Mineral Concession\n\nRules, 2004 are identical in nature. He further submits that this aspect of the\n\nmatter has been considered by the Hon'ble Supreme Court in the case of "Jayant\n\n& Others Vs. State of Madhya Pradesh" reported in (2021) 2 SCC 670 . He\n\nreferred para 8.3, 8.4, 16 and 21 of the said judgement which are quoted here-in-\n\nbelow:-3"8.3. That thereafter, after considering the relevant provisions of theMMDR Act,\nthis Court opined that there is no complete and absolute bar in prosecuting\npersons under the Penal Code where the offences committed by persons are penal\nand cognizable offence. Ultimately, this Court concluded in paras 72 and 73 as\nunder:"72. From a close reading of the provisions of theMMDR Actand the offence\ndefined underSection 378IPC, it is manifest that the ingredients constituting the\noffence are different. The contravention of terms and conditions of mining lease or\ndoing mining activity in violation ofSection 4of the Act is an offence punishable\nunderSection 21of the MMDR Act, whereas dishonestly removing sand, gravel and\nother minerals from the river, which is the property of the State, out of the State's\npossession without the consent, constitute an offence of theft. Hence, merely\nbecause initiation of proceeding for commission of an offence under theMMDR Acton the basis of complaint cannot and shall not debar the police from taking action\nagainst persons for committing theft of sand and minerals in the manner\nmentioned above by exercising power under theCode of Criminal Procedureand\nsubmit a report before the Magistrate for taking cognizance against such persons.\nIn other words, in a case where there is a theft of sand and gravel from the\ngovernment land, the police can register a case, investigate the same and submit a\nfinal report underSection 173CrPC before a Magistrate having jurisdiction for the\npurpose of taking cognizance as provided inSection 190(1)(d)of the Code of\nCriminal Procedure.73. After giving our thoughtful consideration in the matter, in the light of the\nrelevant provisions of the Act vis-à-vis theCode of Criminal Procedureand the\nPenal Code, we are of the definite opinion that the ingredients constituting the\noffence under theMMDR Actand the ingredients of dishonestly removing sand and\ngravel from the riverbeds without consent, which is the property of the State, is a\ndistinct offence underIPC. Hence, for the commission of offence underSection 378IPC, on receipt of the police report, the Magistrate having jurisdiction can take\ncognizance of the said offence without awaiting the receipt of complaint that may\nbe filed by the authorised officer for taking cognizance in respect of violation of\nvarious provisions of theMMDR Act. Consequently, the contrary view taken by the\ndifferent High Courts cannot be sustained in law and, therefore, overruled.\nConsequently, these criminal appeals are disposed of with a direction to the\nMagistrates concerned to proceed accordingly."8.4. Thus, as held by this Court, the prohibition contained inSection 22of the\nMMDR Act against prosecution of a person except on a written complaint made by\nthe authorised officer in this behalf would be attracted only when such person is\nsought to be prosecuted for contraventions ofSection 4of the MMDR Act and not\nfor any act or omission which constitutes an offence under the Penal Code.16. Even as observed by this Court inR.R. Chari [R.R. Chari v. State of U.P., 1951\nSCC 250 : AIR 1951 SC 207] , even the order passed by the Magistrate ordering\ninvestigation under Section 156(3), or issuing a search warrant for the purpose of\nthe investigation, he cannot be said to have taken cognizance of the offence.As\nobserved by the Constitution Bench of this Court inA.R. Antulay [A.R.\nAntulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277] , filing\nof a complaint in court is not taking cognizance and what exactly constitutes taking\ncognizance is different from filing of a complaint. Therefore, when an order is\npassed by the Magistrate for investigation to be made by the police under Section\n156(3) of the Code, which the learned Magistrate did in the instant case, when\nsuch an order is made the police is obliged to investigate the case and submit a\nreport under Section 173(2) of the Code. That thereafter the investigating officer is\nrequired to send report to the authorised officer and thereafter as envisaged underSection 22of the MMDR Act the authorised officer as mentioned inSection 22of\nthe MMDR Act may file the complaint before the learned Magistrate along with the\nreport submitted by the investigating officer and at that stage the question with\nrespect to taking cognizance by the learned Magistrate would arise.21. After giving our thoughtful consideration in the matter, in the light of the\nrelevant provisions of theMMDR Actand the Rules made thereunder vis-à-vis theCode of Criminal Procedureand the Penal Code, and the lawlaid down bythis\nCourt in the cases referred to hereinabove and for the reasons stated hereinabove,\nour conclusions are as under:21.1. That the learned Magistrate can in exercise of powers under Section 156(3)\nof the Code order/direct the In-charge/SHO of the police station concerned to\nlodge/register crime case/FIR even for the offences under theMMDR Actand the\nRules made thereunder and at this stage the bar underSection 22of the MMDR\nAct shall not be attracted.21.2. The bar underSection 22of the MMDR Act shall be attracted only when the\nlearned Magistrate takes cognizance of the offences under theMMDR Actand the\nRules made thereunder and orders issuance of process/summons for the offences\nunder theMMDR Actand the Rules made thereunder.21.3. For commission of the offence underIPC, on receipt of the police report, the4Magistrate having jurisdiction can take cognizance of the said offence without\n         awaiting the receipt of complaint that may be filed by the authorised officer for\n         taking cognizance in respect of violation of various provisions of theMMDR Actand\n         the Rules made thereunder.21.4. That in respect of violation of various provisions of the MMDR Act and the\n         Rules made thereunder, when a Magistrate passes an order under Section 156(3)\n         of the Code and directs the In-charge/SHO of the police station concerned to\n         register/lodge the crime case/FIR in respect of the violation of various provisions of\n         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\n         same can be sent to the Magistrate concerned as well as to the authorised officer\n         concerned as mentioned inSection 22of the MMDR Act and thereafter the\n         authorised officer concerned may file the complaint before the learned Magistrate\n         along with the report submitted by the investigating officer concerned and\n         thereafter it will be open for the learned Magistrate to take cognizance after\n         following due procedure, issue process/summons in respect of the violations of the\n         various provisions of theMMDR Actand the Rules made thereunder and at that\n         stage it can be said that cognizance has been taken by the learned Magistrate.\n         21.5. In a case where the violator is permitted to compound the offences on\n         payment of penalty as per sub-section (1) of Section 23-A, considering sub-section\n         (2) ofSection 23-Aof the MMDR Act, there shall not be any proceedings or further\n         proceedings against the offender in respect of the offences punishable under theMMDR Actor any Rules made thereunder so compounded. However, the bar under\n         sub-section (2) of Section 23-A shall not affect any proceedings for the offences\n         underIPC, such as,Sections 379and414IPC and the same shall be proceeded\n         with further."6.       Relying on the aforesaid judgment, he fairly submits that even assuming\n\nthat the M.M.D.R. Act is not attracted in view of the fact that F.I.R. has been\n\nlodged by the police officer. Ratio ofthe said judgmentspeaks that so far as\n\nsection ofI.P.C. is concerned, the case can go. On these grounds, he submits that\n\nthis Court may pass appropriate order.7.In reply, learned counsel for the petitioners referring to para 21.5 ofthe said judgmentrelied by Mr. Pati, submits that the Hon'ble Supreme Court has\n\ninterfered in that matter and has partly allowed the petition in favour of the\n\npetitioner.8.            In view of above submission of the learned counsel for the parties\n\nthe court has gone through the materials on record and finds that admittedly\n\nF.I.R. was lodged by the then Officer-in-Charge undersection 414of I.P.C. and\n\nunder section 54/67 of Jharkhand Minor Mineral Concession Rules, 2004. Looking\n\ninto Rule 57 of Jharkhand Minor Mineral Concession Rules, 2004, it is crystal clear\n\nthat cognizance has been taken by the learned court, if the compliant is filed and\n\nin absence of that cognizance cannot be taken. This Rule is in consonance with\n\nsection 22 of the M.M.D.R. Act. This aspect of the matter has been interpreted by\n\nthe Hon'ble Supreme Court in the case of "Jayant" (supra) wherein it has been5held that if the police officer investigated the matter and chargesheet has been\n\n        submitted, the chargesheet may be sent to the competent authority to examine\n\n        and file as complaint case. It has been further held that so far asI.P.C. is\n\n        concerned there is no bar to proceed with that matter.Thus the law point is not\n\n        res integra in the light of "Jayant" (supra) case. Admittedly, the said\n\n        chargesheet submitted has not been sent to the competent authority to examine\n\n        and submit complaint before the learned court. The learned court has taken\n\n        cognizance undersection 414I.P.C. and under 54/67 of Jharkhand Minor Mineral\n\n        Concession Rules, 2004.9.In the light of ratio of the judgmentlaid down inthe case of "Jayant"\n\n        (supra) so far as proceeding under Rule 54/67 Jharkhand               Minor Mineral\n\n        Concessions Rules, 2004 is concerned, is set aside. So far as proceeding underSection 414of I.P.C. is concerned, the Court shall proceed in the matter. The\n\n        document relied by the learned counsel for the petitioner is disputed question of\n\n        facts which is subject matter of trial which can be proved before the trial court.10          The concerned Officer-in-Charge may submit chargesheet before the\n\n        concerned Officer/DMO to act in consonance with the lawlaid down bythe Hon'ble\n\n        Supreme Court in the case of "Jayant" (supra).11.          This petition is allowed partly to the extent that the learned court\n\n        shall proceed under the section ofI.P.C. Interim order is vacated.( Sanjay Kumar Dwivedi, J.)\nSatyarthi/