The central legal point established in the judgment is that the offence of theft under Section 379 of the Indian Penal Code was clearly made out, and the criminal proceeding could be instituted based on the FIR lodged by the police officer.

H.C. Mishra, J. :

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

2. This application is directed against the order dated 30.06.2004 passed by the learned S.D.J.M., Sadar at Chaibasa, in G.R. No. 361 of 2003, whereby the application filed by the petitioner under section 239 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials on the record for framing charge against the petitioner.

3. The petitioner has been made accused in Noamundi P.S. Case No. 36 of 2003, corresponding to G.R. No. 361 of 2003, for the offence under sections 379/ 411 of the Indian Penal Code and Section 21(1) and 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as the ‘Act’).

4. According to the prosecution case, which was instituted on the basis of the self statement recorded by the Assistant Sub-Inspector of Police of Noamundi Police Station on 10.09.2003, two dumpers loaded with iron ore were apprehended in TISCO Mines area. The drivers of the dumpers managed to flee away and the dumpers were accordingly, seized. The petitioner being the owner of one of the dumpers has been made accused in this case, as the dumpers were found to be used for committing theft of the iron ore from the leased iron ore mines of the TISCO and the police case was instituted and investigation was taken up. It appears that after investigation the police submitted the charge-sheet against the petitioner and the cognizance of the offence under section 379 / 411 of the Indian Penal Code and Section 21(1) and 21(4) of the Act had been taken against the petitioner. The petitioner subsequently filed his application for discharge, under section 239 of the Cr.P.C., which was rejected by the Court below by the impugned order.

5. Learned counsel for the petitioner has submitted that no offence can be said to be made out under section 379 of the Indian Penal Code, in as much as, there is a special law relating to the minerals and if the offence is committed under the said special law the general law in the Indian Penal Code cannot be said to be applicable to the facts of this case. It has been further submitted by the learned counsel for the petitioner that Section 22 of the Act prohibits taking cognizance for any offence under the Act, except upon the complaint in writing made by the person authorized in this behalf by the appropriate Government. Accordingly, it has been submitted that since the prosecution has been instituted against the petitioner on the basis of the police report, the impugned order cannot be sustained in the eyes of law.

6. In support of his contention learned counsel for the petitioner has placed reliance upon an unreported decision of this Court in Pancham Singh Vs. State of Jharkhand and Anr., in Criminal Revision No. 312 of 2004, decided on 9.10.2012, wherein the case related to illegal mining of stones and morum which were used for construction of the road and the case was instituted for the offence under section 379 of the Indian Penal Code and Section 21 of the Act. In the facts of the said case, it was held that the offence was not made out under section 379 of the Indian Penal Code and the cognizance for the offence under the Act was barred, except upon the complaint in writing made by the person authorized in this behalf by the appropriate Government. Placing reliance on this decision learned counsel has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. Learned counsel has also pointed out that in the present case also the offence cannot be said to be made out under section 379 of the Indian Penal Code, in as much as, Section 21(4) of the Act speaks about the raising and transportation, i.e., removal of any mineral from any land and accordingly, there is a special provision under the Mines and Minerals (Development and Regulation) Act, 1957 and Section 379 of the India