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JHARKHAND HIGH COURT
Rongon Mukhopadhyay, J.
Ayub Raza —Petitioner
versus
State of Jharkhand —Opp.Party
Cri. M.P No.242 of 2014
Decided on 10.12.2014
For the Petitioner:Mr. Arshad Hussain, Mr. Haider Ali, Advocates
For the Opp.Party/State: Mr. Pankaj Kumar, A.P.P.
IMPORTANT POINT
Assistant Sub-Inspector of Police cannot institute FIR for offences punishable under Section 4(i) of MMDR Act.
Headnote:Indian Penal Code, 1860—Sections 379 and 411—Mines and Minerals (Development and Regulation) Act, 1957—Section 4(i)—Air (Prevention and Control of Pollution) Act, 1981—Sections 21 and 43—Criminal Procedure Code, 1973—Section 482—Mining offence—Illegal transportation of sand—Cognizance— Assistant Sub-Inspector of Police who had instituted FIR for offences punishable under Section 4(i) of MMDR Act did not have jurisdiction to institute such FIR—Judicial Magistrate committed error of law while passing order taking cognizance so far as section 4(i) of MMDR Act is concerned—Considering fact that necessary ingredients for the purposes of fulfillment of requirements under Section 43 of Air (Prevent and Control of Pollution) Act, 1981 have not been fulfilled, prosecution of petitioner under Section 21 of Air ( Prevention and Control of Pollution) Act, 1981 can also not be allowed to continue—Order by which cognizance was taken by Magistrate for offence under Section 4(i) of MMDR Act, 1957 and Section 21 of Air (Prevention and Control of Pollution Act, 1981 quashed—However, order taking cognizance for offence punishable under Sections 379/411 of Indian Penal Code does not warrant any interference and trial with respect to said offences shall proceed. (Paras 15, 18 and 19)
Result: Application allowed.
JUDGMENT
I.A. No. 6239 of 2014 :
Rongon Mukhopadhyay, J.—This application has been filed for amendment/ addition of the reliefs sought by the petitioner.
2. On going through the application and after careful perusal of the interlocutory application the same is allowed.
3. 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 :
4. Heard learned counsel for the petitioner and learned counsel for the State.
5. 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.
6. 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.
7. 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 Pollution)Act, 1981 was taken vide order dated 5.8.2014.
8. 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.
9. 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) 9 SCC 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 direc
