IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P No. 242 of 2014
                            ....

Ayub Raza                              .....       ....    Petitioner
                            Versus
The State of Jharkhand                 .....       ....    Opposite Party

CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner : Mr. Arshad Hussain, Advocate Mr. Haider Ali, Advocate For the State : Mr. Pankaj Kumar, A.P.P.

....

04/ Dated 10th December, 2014 I.A No. 6239 of 2014 This application has been filed for amendment/ addition of the reliefs sought by the petitioner.

On going through the application and after careful perusal of the interlocutory application the same is allowed.

I.A No. 6239 of 2014 is disposed of. The averments made in para-5 of the I.A shall form part of the main quashing application.

Cr.M.P No. 242 of 2013 Heard learned counsel for the petitioner and learned counsel for the State.

In this application the prayer of the petitioner is for quashing the entire criminal proceedings including the first information report which had been instituted in connection with Kara P.S.Case No. 72 of 2013 corresponding to G.R Case No. 459 of 2013 registered for the offences punishable under Sections 379 and 411 of the Indian Penal Code, Section 4(i) of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981.

The prosecution story in brief is that the informant who is the Assistant Sub-Inspector of police was on petrolling duty in the evening of 19.12.2013 observed that a Turbo Truck bearing Registration No.JH01AR-6412 was passing by at a high speed. It was also alleged therein that the said truck was apprehended and on inspection it was found loaded with sand but no valid papers were produced by the driver with respect to the sand loaded on the truck.

After investigation the case having been found to be true, charge-sheet was submitted pursuant to which cognizance for the offences punishable under Sections 379/411 of the Indian Penal Code, Section 4(i) of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 21 of the Air (Prevention and Control of 2 Pollution)Act, 1981 was taken vide order dated 5.8.2014.

Learned counsel for the petitioner submits that he is the owner of the vehicle and since the vehicle was under the custody of driver, the owner cannot be directly made responsible for the offence as has been alleged in the first information report. Learned counsel for the petitioner has further submitted that institution of the criminal case and taking cognizance subsequent thereto is bad in law in view of the fact that Assistant Sub-Inspector of police is not empowered to institute the first information report under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 or under the provisions of the Air (Prevention and Control of Pollution) Act, 1981.

In this context, he has referred to a judgment of the Hon'ble Supreme Court in the case of State (NCT of Delhi) vs. Sanjay [(2014) 9SCC 772] in which the Hon'ble Supreme Court while considering the question as to whether the provisions contained in Sections 21, 22 and other sections of the Mines and Minerals (Development and Regulation) Act, 1957 operate as a bar against the prosecution of a person who has been charged with allegations which constitutes offences under Sections 379/411 of the Indian Penal code and that in the light of the relevant provisions of the MMDR Act, vis a vis the Code of Criminal Procedure and the Indian Penal Code had held that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbed without sand which is the property of State is a distinct offence under the Indian Penal Code. It was further held therein that for the commission of the offence under Section 378 of the Indian Penal Code, on receipt of the police report, the magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of the complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Relevant paragraphs of the above noted judgment is quoted herein under:-

"68. In State of U.P. v. Babu Ram Upadhya, while interpreting a particular statue as mandatory or directory this court observed: (AIR p. 765 para 29) "29. ... When a statute uses the word 'shall', 'prima facie', it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the 3 legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non- compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above, all, whether the object of the legislation will be defeated or furthered."

69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.

70. There cannot be any dispute with 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 4 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 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 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.

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." Learned counsel for the State on the other hand, submits that so far as cognizance with respect to the provisions under MMDR Act is concerned, the same has been addressed in the judgment rendered by the Hon'ble Supreme Court as referred to above. He further submits while relying on the aforesaid judgment with respect to the offences punishable under Sections 379 and 411 of the Indian Penal Code that, the police does have the power to investigate the case under the provisions of the Indian Penal Code and that the learned Magistrate is empowered to take cognizance and, therefore, the order dated 5.8.2014 by which cognizance was also taken for the offences punishable under Section 379/411 of the Indian Penal Code does not suffer from any infirmity.

Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 reads as follows:-

"22. Cognizance of offences.- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central government or the State Government."

It would appear from a plain reading of Section 22 of the MMDR Act as quoted above is that the court is precluded from taking cognizance of any offence punishable under the Act except upon a complaint made in writing by a person authorized in this behalf by the Central Government or the State Government.

Section 2(d) of the Criminal Procedure defines a complaint which reads as follow:-

" 2 (d) " complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report".

A conjoint reading of section 22 of the MMDR Act and Section 2(d) of the Criminal procedure, 1973 would mean that no first information report can be instituted for the offences under the Mines and Minerals (Development and Regulation) Act, 1957 "as the definition of a complaint in Section 2 (d) of Code of Criminal Procedure excludes a police report".

In such circumstances the Assistant Sub-Inspector of police who had instituted the first information report for the offences punishable under Section 4(i) of the MMDR Act did not have the jurisdiction to institute such FIR and, therefore, the learned Judicial Magistrate, 1 st Class committed an error of law while passing the order taking cognizance dated 5.8.2014 so far as section 4(i) of the MMDR Act is concerned.

As regards the cognizance by the learned Judicial Magistrate Ist Class with respect to Section 21 of the Air ( Prevention and Control of Pollution) Act, 1981 it would be necessary to quote Section 43 of the Act which reads as follow:-

[43. Cognizance of offences.- (1) No court shall take cognizance of any offence under this Act except on a complaint made by-

( a) a Board or any officer authorised in this behalf by it; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer 6 authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (2) Where a complaint has been made under clause(b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person.

Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.]".

From a perusal of section 43 Air (Prevention and Control of Pollution) Act, 1981 the same reveals that no court shall take cognizance except on complaint made by a Board or any officer authorised in this behalf or any person who is given a prior notice of not less than 60 days in the manner prescribed of his intention to make a complaint to the Board or officer authorised as aforesaid.

The record does not disclose of any prior notice in the prescribed manner given to the board or any officer authorised so as to institute the case and no document with respect to above has been brought to the knowledge of the Court. The language of Section 43 of the Air (Prevention and Control of Pollution)Act, 1981 also speaks about a complaint and not a first information report and, therefore, considering the fact that necessary ingredients for the purposes of fulfillment of requirements under Section 43 of the Air (Prevent and Control of Pollution) Act, 1981 have not been fulfilled, the prosecution of the petitioner under Section 21 of the Air ( Prevention and Control of Pollution) Act, 1981 can also not be allowed to continue.

Considering the totality of the facts and circumstances enumerated above the order dated 5.8 2014 by which cognizance was taken by the learned Magistrate for the offence under Section 4(i) of the MMDR Act, 1957 and section 21 of the Air (Prevention and Control of Pollution Act, 1981 is hereby quashed. The order taking cognizance for the offence punishable under Sections 379/411 of the Indian Penal Code on the basis of the discussions made above does not warrant any interference and the trial with respect to the said offences shall proceed accordingly.

This application is allowed in the manner indicated above.

(Rongon Mukhopadhyay, J.) Anjali