TaxTMI 
TaxTMI 
2019 (8) TMI 1936
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....3. The aforementioned cases involve more or less identical facts and questions of law. 4. In all the writ petitions, parties are common except respondent no.5, who is Officer-in-charge of different police stations. 5. The petitioner is one of the Directors of Broad Son Commodities Pvt. Limited, a company incorporated under the provisions of the Companies Act, 1956. He has been made accused in Sigaudi P.S. Case No. 02 of 2018, Bhagwanganj P.S. Case No. 02 of 2018, Dhanarua P.S. Case No. 07 of 2018 and Naubatpur P.S. Case No. 07 of 2018. 6. The first information report (for short 'FIR) of the aforesaid four police cases have been registered under Sections 420, 406, 379 read with 34 of the Indian Penal Code (for short 'IPC'), Section 21 of the Mines and Minerals (Development & Regulation) Act, 1957 (for short 'MMDR Act'), Rules 40, 21 and 22 of the Bihar Minor Minerals Concession Rules, 1972 (for short '1972 Rules') and Section 15 of the Environment (Protection) Act, 1986 (for short '1986 Act'). 7. Since essential facts of all the cases are identical, the facts are being extracted from Cr. W.J.C. No. 540 of 2019. 8. In Cr. W.J.C. No. 540 of 2019, the prayer of the petit....
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....ronment clearance. He contended that the excess mining is entirely distinct from illegal mining. According to him, excess mining is not illegal mining. Illegal mining is defined in Section 2(iia) of Mineral Concession Rules, 1960 framed under Section 13 of the MMDR Act. He pleaded that the Company is a valid settlee of the State of Bihar for mining sand in the district of Patna and, hence, Section 21 of the MMDR Act would not be attracted in case of the petitioner. 12. Advancing his arguments, Mr. Upadhyay, learned senior advocate submitted that the jurisdictional Magistrate cannot take cognizance of any offence under the MMDR Act or the 1972 Rules or 1986 Act in absence of any complaint under Section 200 of the Code of Criminal Procedure (for short 'Cr.P.C') filed by a person authorized on behalf of the Government in view of express legal bar engrafted in the statutory provisions of the Acts and the Rules under which the petitioner is being prosecuted. 13. As far as allegations made under Section 379 of the IPC is concerned, Mr. Upadhyay has submitted that since the Company is a valid settlee and has not dishonestly removed any sand from the sand ghats, the ingredients ....
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....ed by the petitioner, it was found that the Company had crossed the environment clearance capping limit. He urged that since the investigation into a cognizable offence is going on, it would not be proper to interdict the FIR at the stage of investigation. 18. In the counter affidavit filed on behalf of the respondent nos. 8 and 9, it is stated that the Company was given lease for a period of five years on calendar year basis in terms of excavation limits from the rivers of the district. It was allowed to carry on its mining activities except during the ban period round the calendar year and was also allowed to excavate the permitted level of capping limit per annum as per environment clearance given by the concerned authority. 19. Ms Kalpana, learned advocate appearing for the respondent nos. 8 and 9 submitted that since the Company violated the terms and conditions of the capping limit of environmental clearance, a case for prosecution is made out. She submitted that the investigation would reveal the correct facts. According to her also, since the allegations made in the FIR do attract the ingredients of a cognizable offence, it would not be proper for this Court to consid....
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...., at Part III Clause 22, it is provided that "Settlee shall have to pay extra royalty in case he/they extract/mine sand excess to the bid amount in that calendar year". 26. Rule 26(b) of the 1972 Rules lays down that royalty shall be charged at the rates specified in Schedule II. For mining of sand, Schedule II prescribes the auctioned amount as the chargeable rate and Note II of Schedule II lays down that "the settlee shall pay the extra Royalty for the excess quantity of extracted and dispatched sand more than the equivalent action amount". 27. Neither the Sand Policy, 2013 nor the notification no. 2887 dated 22.07.2014 nor the work orders and agreements nor the Acts and the rules penalizes excess mining in any manner. It has specifically been stated in the sand policy, work orders, agreements and the relevant Acts and the rules that the excess mining shall be treated to be violation of the agreement or the terms of the licence. The 1972 Rules do not categorize excess mining an offence. Thus, it would be evident that for mining in excess, the settlee shall be liable to pay excess royalty. 28. It has rightly been contended on behalf of the petitioner that excess mining un....
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....ther a complaint in writing has to be made by a person authorized in this behalf. 37. The word 'complaint' has not been defined in MMDR Act or the rules framed thereunder. In absence of any definition of 'complaint' in the MMDR Act or the rules made thereunder, one has to look to the definition of 'complaint' given in the Cr. P.C. 38. Section 2(d) of the Cr. P.C defines 'complaint' as under :- "2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." 39. In view of the definition of the complaint in Section 2(d) of the Cr. P.C, there cannot be any doubt that an FIR cannot be treated as a complaint. The moment an FIR is instituted in respect of an offence, it is required that the same be investigated upon and once the investigation is completed, the report is required to be submitted before the court under Section 173(2) of the Cr. P.C. The police report submitted under Section 173(2) of the Cr. P.C cannot be treated as a complaint. Thus, it would be evident that Section 22 of the MMDR....
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.... 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." (emphasis mine) 44. Thus, it would be evident from the ratio laid down by the Supreme Court in State (NCT of Delhi) Vs. Sanjay (Supra), that in case a person without any lease or licence or any authority extracts minerals in a clandestine manner with an intent to remove dishonestly from the possession of the State, the ingredients of the offence punishable under Section 379 o....
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.... extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. 50. Section 19 of the 1986 Act provides for taking cognizance of the offences under the Act, which reads as under : "19. Cognizance of offences.-No court shall take cognizance of any offence under this Act except on a complaint made by- (a) the Central Government or any authority or officer authorised in this behalf by that Government; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid." 51. In exercise of....