JUDGMENT :

Both these petitions have been filed for quashing the FIR and the entire criminal proceeding against the petitioners in connection with Maheshpur (Radipur O.P.) P.S Case No. 14/2011 corresponding to G.R No. 68/2011 allegedly lodged for committing offences punishable under Sections 413/414/120B of IPC and rule 54 (appears to have been wrongly mentioned as rule 40) of Jharkhand Minor Mineral Concession Rules, 2004 now pending in the court of C.J.M Pakur.

2. The factual background of the case, as recorded in the self-statement of the informant- Shashi Bhusan Chaudhary, Sub-Inspector of Police who was the then in-charge of Radipur O.P., P.S.- Maheshpur, is that on 30.01.2011, he got secret information that some vehicles of West Bengal had loaded stones from Sundar Pahari Mines area for sale in the market of West Bengal in higher rates without legal papers. The informant after lodging Sanha, proceeded alongwith the police personnel and found the vehicles of West Bengal coming from Sundar Pahari and on seeing the police party, the drivers tried to escape but they were caught. On inquiry, they failed to show any valid paper relating to the loaded minerals and told that on the telephonic instruction given by the owners of the vehicles to the crusher owners, they loaded the stones and transported the same. The drivers also disclosed their name as well as name of the owners of the vehicles and crusher’s owners.

3. The learned counsel for the petitioner, at the outset, submits that in the instant case, the FIR has been lodged by Sub-Inspector of Police who is not the competent authority to lodge the same as per rule 57 of Rules, 2004. Therefore, the FIR lodged by the informant is liable to be quashed.

4. The learned APP appearing on behalf of the State of Jharkhand in both the cases, submit that the FIR sufficiently discloses the offence under Sections 413/414 of IPC. It is further submitted that the investigation of the case is still pending and as such the same may not be quashed at this stage.

5. To appreciate the contention of the learned counsel for the petitioners, I have perused the rule 57 of the Rules, 2004 which provides that no court shall take cognizance of the offence committed under Rules, 2004 unless a complaint is made in writing or FIR is lodged by the competent officer or Deputy Director of Mines or Additional Director of Mines or Director of Mines or any other officer empowered by the Government.

6. The Hon’ble Supreme Court in the case of State (NCT of Delhi) v. Sanjay reported in (2014) 9 SCC 772 has held as under:-

“72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à