Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Miscellaneous Petition No. 1122 of 2014
---
Parmeshwar Prasad son of Shiv Shankar Prasad resident
of village Chikor, PO & PS Khunti, District Khunti ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
---
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
---
For the Petitioner : Mr. Gaurav, Advocate
For the Opposite Party : Mr. Sanjay Kumar Srivastava, A.P.P.
---
4/07.01.2016Heard Mr. Gaurav, learned counsel for the petitioner and Mr. Sanjay Kumar Srivastava, learned A.P.P. for the State.
2. In spite of giving opportunity to the State, no counter affidavit has been filed.
3. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Khunti P. S. Case No. 33 of 2013 including the order dated 29.07.2013 passed by the learned Additional Chief Judicial Magistrate, Khunti whereby and whereunder cognizance has been taken for the offence punishable under Sections 379/278 of the I.P.C., under Section 4(i) of the Mines and Mineral (Development & Regulation) Act, 1916 and under Section 37 Air (Prevention & Control of Pollution) Act, 1981.
4. The allegation made in the FIR is that pursuant to a raid conducted on 12.03.2013 with respect to different quarries and brick kiln, 3 brick kilns were inspected including the one belonging to the petitioner and the same were running without the permission as required under Section 37 of Air (Prevention & Control of Pollution) Act, 1981 (hereinafter referred to as the 'Act').
5. Mr. Gaurav, learned counsel for the petitioner submits that so far as the FIR is concerned, there is no allegation against the petitioner with respect to committing any offence either under the provisions of the Indian Penal Code or under the provisions of Mines and Mineral (Development & Regulation) Act, 1916 and it has been submitted that only allegation so far as the petitioner is concerned is running the brick kiln without having the required permission as per Section 37 of the Act. Learned counsel further submits that in fact the brick kiln which is -2- being run by the petitioner has duly been leased out and the petitioner has got the licence to carry out his business. It has also been submitted that the consent to operate has been obtained by the petitioner and even on the date the raid was conducted i.e., 12.03.2013, the petitioner was in possession of the necessary permission of consent to operate dated 07.03.2013 by the Jharkhand State Pollution Control Board. Learned counsel further adds that even otherwise an FIR cannot be instituted under the provisions of the Act in view of the clear bar as mentioned in Section 43 of the Act which depicts that no Court can take cognizance of any offence under this Act except on a complaint. It has been submitted that the complaint has been defined under Section 2(d) of the Cr.P.C. and since the present case has been instituted by way of FIR, the entire criminal proceeding against the petitioner deserves to be quashed and set aside.
6. Mr. S. K. Srivastava, learned A.P.P., on the other hand, has submitted that in the raid which was conducted by the authorities, it was detected that necessary permissions were not obtained by the brick kiln owners including the petitioner and in such circumstances, the brick kiln was being run by the petitioner without necessary approval of law.
7. A perusal of the written report submitted by the Assistant Mining Officer, Khunti dated 12.03.2013 suggests that the only allegation with respect to the petitioner is of not having the necessary permission to operate the brick kiln in terms of Section 37 of the Act. Section 43 of the Act deals with the cognizance of offence and it clearly lays down that no Court can take cognizance under this Act except on a complaint made by a Board or any officer authorised in this behalf by it or any person who has given a notice of not less than 60 days of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid. Admittedly, Section 43 of the Act has not been adhered to as cognizance was taken pursuant to registration of an FIR and completion of investigation on initiation of the proceeding. In such circumstances, filing of the FIR itself is against Section 43 of the Act and therefore, such FIR at the instance of the authorities cannot be maintained. Even otherwise, the petitioner as it appears had been given a consent to operate by the -3- Jharkhand State Pollution Control Board and on the date of raid conducted by the officials, the consent to operate dated 07.03.2013 was in operation. Moreover, the petitioner had the requisite permission to operate his brick kiln as would be evident from the proforma issued by the District Mining Office, Khunti dated 02.02.2013.
8. The circumstances enumerated above would go to show that the criminal proceeding initiated against the petitioner was without any basis and without verification of the actual facts and the same was also contrary to the provisions envisaged under Section 43 of the Act.
9. So far as the provisions of Indian Penal Code and Mines and Minerals (Development & Regulation) Act is concerned, the FIR does not disclose any such offence as against the petitioner.
10. In such circumstances, therefore I am inclined to allow this application.
11. Accordingly, this application is allowed and the entire criminal proceeding in connection with Khunti P. S. Case No. 33 of 2013 including the order dated 29.07.2013 passed by the Additional Chief Judicial Magistrate, Khunti by which cognizance was taken for the offences punishable under Sections 379/278 of the I.P.C., under Section 4(i) of the Mines and Mineral (Development & Regulation) Act, 1916 and under Section 37 Air (Prevention & Control of Pollution) Act, 1981 is hereby quashed and set aside.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3