H.C. Mishra, J.

Heard learned counsel for the petitioner and learned counsel for the State.

2. The petitioner is aggrieved by the order dated 14.04.2004 / 15.04.2004 passed by the learned Sub-Divisional Judicial Magistrate, Simdega, in G.R. No. 284 of 1999 arising out of Kolebira P.S. Case No. 43 of 1999, whereby the application filed by the petitioner for discharge has been rejected by the Court below.

3. The petitioner has been made accused in Kolebira P.S. Case No. 43 of 1999, corresponding to G.R. No. 284 of 1999 for the offence u/s. 379 of the Indian Penal Code and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as the “MM(DR) Act”).

4. The F.I.R. was lodged on the basis of the written information given by the Assistant Mining Officer, Gumla, wherein he had alleged that illegally mined Morum and Stones were used in the construction of a road and the co-accused apprehended at the spot informed that the construction of the road was being done by the Contractor, M/s. Vijeta Construction Ltd., Morabadi, Ranchi, and about 200 trips of tractor were used for ferrying the Stones and Morum for laying on the road. On the basis of the written information given by the Assistant Mining Officer, Gumla, the police case was instituted against the apprehended accused Kamal Kant and the contractor M/s. Vijeta Construction Ltd. The petitioner is the Chairman of the said M/s. Vijeta Construction Ltd.

5. It appears from the Lower Court Record, that after investigation the police submitted charge-sheet in this case for the offence u/s. 379 of the Indian Penal Code and Section 21 of the MM(DR) Act against the accused persons named therein, including the petitioner, being the owner of M/s. Vijeta Construction Ltd. However, no charge-sheet has been submitted against M/s. Vijeta Construction Ltd.

6. The petitioner filed his application for discharge in the Court below stating inter alia, that the royalty of Rs.8,96,570/- and the penalty of Rs.9,430/- were realised from the petitioner’s company from the final bill, and accordingly, the said amounted to compounding of the offence by the company, and as such, no offence can be said to be made out against the petitioner. However, the Court below rejected the application filed by the petitioner holding that on the basis of the materials on the record, the offences were made out against the petitioner. It is also stated in the impugned order that the petitioner had earlier filed Cr. M.P. No. 994 of 2003 in the High Court for quashing of the entire criminal proceeding, including the order taking cognizance against the petitioner, and the order dated 26.09.2003 passed in the said Criminal Miscellaneous Petition showed that the High Court was not inclined to interfere.

7. Learned counsel for the petitioner has submitted that the present application has been filed against the impugned order dated 14.04.2004 / 15.04.2004, whereby, the application for discharge has been rejected by the Court below. The order dated 26.09.2003 passed in Cr. M.P. No. 994 of 2003 is available in the Lower Court Record, which would show that the said application was permitted to be withdrawn with the liberty to raise all the points before the learned Court below at appropriate stage. Learned counsel for the petitioner has also submitted that the petitioner’s company was granted contract by the State Government for construction of the road concerned, in which Morum and Stones were used. It has been submitted that in order to avoid criminal liability the petitioner had already deposited the penalty which has been realised by the State Government and accordingly, no offence can be said to be made out against the petitioner, once the royalty and penalty have been realised from the petitioner by the State Government. It has also been submitted that in view of the fact that there is special provision under the MM(DR) Act and the Rules framed there under for mining the Morum an