Rongon Mukhopadhyay, J.@mdashHeard Mr. Birender Kumar, learned counsel appearing on behalf of the petitioners. No one appears on behalf of the State.
2. In this application, the petitioners have prayed for quashing the entire criminal proceedings in connection with Maheshpur P.S. Case No. 38 of 2002 including the order dated 18.05.2002 passed by the learned Chief Judicial Magistrate, Pakur whereby and whereunder cognizance has been taken for the offence punishable under Sections 379, 411/34 of the Indian Penal Code and Rule 40(1) of the Bihar Minor Minerals Concession Rules, 1972.
3. It appears that an F.I.R. was instituted by the Officer In-charge of Maheshpur Police Station that on 22.03.2002 at about 2:00 P.M. in course of patrolling with the help of other police officials, several trucks including that of the petitioners were seized loaded with boulders without the requisite challans under Form - F as required under Rule 33 of the said Rules.
4. Based on the aforesaid allegations, Maheshpur P.S. Case No. 38 of 2002 was instituted.
5. After conducting an investigation into the case and finding the allegations to be true charge-sheet was submitted against the petitioners pursuant to which cognizance was taken by the learned Chief Judicial Magistrate, Pakur on 18.05.2002 for the offence punishable under Sections 379, 411/34 of the Indian Penal Code and Rule 40(1) of the Bihar Minor Minerals Concession Rules, 1972.
6. The learned counsel for the petitioners has submitted that in terms of Section 41 of the Bihar Minor Minerals Concession Rules, 1972, the Sub Inspector of Police was not authorized to institute any case. It has further been submitted that even as per the Rule 41 of the Bihar Minor Minerals Concession Rules, 1972 a complaint is to be instituted by a competent person and in the said circumstance, the First Information Report having been instituted, the same is barred under Rule 41 of the Rules and in such circumstances, the entire criminal proceedings as against the petitioners is liable to be quashed so far as the cognizance for the offences punishable under Rule 40(1) of the Bihar Minor Minerals Concession Rules, 1972 is concerned. The learned counsel for the petitioners has also submitted that in view of the Section 4 and 5 of the Code of Criminal Procedure there being a special legislation, the same shall prevail over the general law and, therefore, no prosecution under the provisions of Indian Penal Code can be allowed to continue.
7. After hearing the learned counsel for the petitioners and after going through the records, I find that the apprehended trucks were found loaded with boulders without there being any valid challans as required under the Bihar Minor Minerals Concession rules, 1972 and on such allegations, a case was instituted. So far as the contention of the learned counsel for the petitioners is concerned with respect to Rule 40(1) of the Bihar Minor Minerals Concession Rules, 1972, it is manifest that Rule 41 of the said Rules lays down that no court shall take cognizance of any offence under these rules except upon a complaint made in writing by the competent officer or any other officer empowered by the Government. Rule 41, therefore, consist of two parts, firstly there has to be a complaint in writing and secondly a complaint is to be made by a person authorized or empowered by the Government. Both the ingredients of Rule 41 of Bihar Minor Minerals Concession Rules is lacking in the present case as there is nothing on record to suggest that the Sub Inspector of Police was authorized to institute a complaint. Moreover, in view of the definition of the complaint as envisaged in Section 2(d) of the Code of Criminal Procedure which specifically excludes an F.I.R. coupled with the provisions of Rule 41 of the Bihar Minor Minerals Concession Rules, 1972, no F.I.R. under the said provisions can be instituted and in such circumstance, the prosecution against the petitioners under Section 40(1) of the Bihar Minor Minerals Concession Rules, 1972 cannot be allowed to continue. So far as the contention of the learned counsel for the petitioners that in case of conflict between special and general law, special law is to prevail, the said argument of the learned counsel for the petitioners has already been answered in the case of
"68. In State of U.P. v. Babu Ram Upadhya, while interpreting a particular statute as mandatory or directory this Court observed: (AIR p. 765, para 29)
"29... When a statute uses the word ''shall'', ''prima facie'', it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels.
70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.
71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code."
8. In view of the aforesaid proposition of law laid down by the Hon''ble Supreme Court the prosecution against the petitioners so far as the offences punishable under Sections 379, 411/34 of the Indian Penal Code is concerned, the same can continue and there is no legal bar with respect to continuation of the said proceedings. Thus the contention of the learned counsel for the petitioners with respect to the fact that special law shall prevail over the general law and, therefore, the prosecution under the provision of Indian Penal Code cannot continue, is misconceived and is without any basis. Even otherwise no illegality has been pointed out by the learned counsel for the petitioners so as to cause interference in the criminal proceedings initiated for the offences punishable under Sections 379 and 411/34 of the Indian Penal Code.
9. Thus, in view of the factual and legal aspects as enumerated above, this application is allowed in part. The entire criminal proceedings including the order dated 18.05.2002 passed by the learned Chief Judicial Magistrate, Pakur in connection with Maheshpur P.S. Case No. 38 of 2002 with respect to the taking of cognizance for the offence punishable under Rule 40(1) of the Bihar Minor Minerals Concession Rules, 1972 is, hereby, quashed. However, with respect to initiation of criminal proceedings for the offences punishable under Sections 379, 411/34 of the Indian Penal Code is concerned, the same shall continue and the contention of the learned counsel for the petitioners for quashing the same is, hereby, rejected.
10. Accordingly, this application is allowed in part.
