TMI Blog2021 (11) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... law and the Indian Penal Code are well settled as has been argued by the learned counsel appearing on behalf of the petitioner. But, it must be in the facts and circumstances of each case. Section 2(1)(y) of the Act of 2002 defined the scheduled offences under the Act in Part-A and Part-B and in the schedule section 120B and section 420 are provided. Thus, it cannot be said that cheating is not prescribed under the scheduled of section 2(1)(y) of the Act. It is an admitted fact that the C.B.I has registered the case under section 120B and 420 of the IPC - In view of own admission of the officers of the company about the export, at this stage, it cannot be held that the petitioner was not exported the iron ore. Moreover, when undertaking to that effect has been submitted by the petitioner that iron ore will be used for own industry only. Explanation to section 3 of P.M.L.A Act which has been added later on stated that process or activity connected with proceeds of crime continues till such time a person is directly or indirectly enjoying the proceeds of the crime, accordingly the entire process/activity connected to the proceeds of crime is a continuing offence - In the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 44 and 45 of Prevention of Money Laundering Act, 2002 (hereinafter to be referred as 'the Act of 2002' for commission of offence of money laundering, has been defined under section 3 read with section 70 which is punishable under section 4 of the Act of 2002 in relation to E.C.I.R. No.PTZO/03/2017 dated 04.05.2017 pending in the court of Incharge Judge, Sh. Prakash Jha, the learned Additional Judicial Commissioner-16 at Ranchi. 3. The said complaint case was filed stating therein that: (i) the petitioner has violated its undertaking of captive mining submitted in its application made under Rule 22(1) of the Mineral Concession Rules, 1960 ( MC Rules ) for the grant of Mining Lease for the mine, Vijay II Iron Ore Mine situated at Ghatkuri Village (Saranda Reserved Forest Division) admeasuring 383.20 acres in Sadar Chaibasa Sub-Division, West Singhbhum ( Mine ); and sold/exported iron ore mined, despite such undertaking of captive mining; (ii) that while granting the forest clearance and the mining Lease to the petitioner, officials of Ministry of Environment and Forest allegedly violated mining laws, environmental laws and various rules, and that the regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Government of Jharkhand after having the approval under the Forest Conservation Act, 1980 and the Rules of 1960. The final approval was accorded on 16.03.2005 by the Government of Jharkhand which was issued in statutory Form-'K' of the Rules. The petitioner filed a modified mining plan before the Indian Bureau of Mines. In the said plan, the petitioner specified the physical and chemical composition of iron ore required for its blast furnaces and sponge iron kilns. After such process, on 16.08.2005, the mining lease in Form-'K' was duly executed between the Government of Jharkhand and the petitioner for a period of 20 years on the condition mentioned therein. The allotment of the mine to the petitioner was challenged before the Mines Tribunal by the two other applicants and by the revision application, the same was dismissed by the Mines Tribunal on 19.05.2009. 7. Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner further submitted that in the modified plan it was disclosed that 10-40 mm calibrated iron ore lumps with 64% Fe content was required by the blast furnaces while sponge iron kilns required 5-20 MM calibrated iron ore l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re for all mining leases proposed to be executed/granted or proposed to be renewed for applicant who has been given preference in allotment. He further submitted that the Government of Jharkhand sought clarification from the Government of India by its letter dated 13.12.2012. The applicability of this decision on existing lease-holders who have been allotted mines giving preference in allotment. He further submitted that Government of India vide its letter dated 21.03.2013 stated that imposition of special condition under Rule 27(3) of the Rules and either by exercise at the grant of fresh lease or should be exercised at the time of renewal of mining lease. In light of this, he further submitted that in view of the judgment in Krishnanand Tripathi case (supra) and the clarification dated 19.09.2012 and on 21.03.2013, the erstwhile acts of export and sale of waste by the petitioner were permitted within the applicable laws, rules and the regulation and no restrictions imposed by the State Government was required as the lease was not renewed at that time. He further submitted that in light of this, the Central Bureau of Investigation (C.B.I) on 20.09.2016 registered the F.I.R No.R.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Opposite Party, however, Opposite Party has issued summon under section 50 of the Act upon Mr. Pramod Kumar Fatepuria, Senior General Manager (Logistic) of the petitioner which was not received by Mr. Fatepuria and having knowledge Mr. Fatepuria responded summon on the e.mail seeking additional time to appear before the Opposite Party. Mr. Fatepuria appeared in the Office of the Opposite Party on 06.01.2021 and Mr. Fatepuria was arrested by the Opposite Party and was granted its custody to the learned District and Special Judge-cum-Special Judge, E.D., Patna in connection with Special Trial No.PMLA 01/2021 under section 3 and 4 of the Act arraying the petitioner as an accused no.1 and Promod Kumar Fatepuria as accused no.2. He submitted that Patna was not the territorial jurisdiction for filing the same and only to binding nature of the judgment passed by this Court in Krishnanand Tripathi case (supra) that has been filed. As the entire subject matter are in the State of Jharkhand the petitioner filed a Criminal Writ No.21445/2021 before the Hon'ble Patna High Court on 24.01.2021 seeking quashing of the Patna E.D. Complaint along with quashing of all proceeding on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be done by the Junior Mining Geologist to the petitioner and for compliance of Rule 13(1) the letter dated 03.02.2010 was issued by the Government of India, Ministry of Mines, Indian Bureau of Mines. According to him, that was complied by the petitioner. He referred to National Steel Policy of 2005 and relied on Clause 6.2.2 which reflect to export of iron ore and submitted that it has been recorded that fines and concentrates which have little use in India except as a negative environmental externality, make up about 90% of Indian iron ore exports currently. He referred to Section 4 of the Act of 1957 and submitted that prospecting or mining operation to be under license or lease are governed under this section. He further submitted that under sub-section 2 of section 9 of the Act of 1957 for the payment of royalty, the provision is made. He submitted that the petitioner is paying the royalty. He referred to section 10 of the Act of 1957, the prescribed application for prospecting licenses or mining leases. By way of referring to second schedule of section 9, he submitted that at serial no.24, iron ore is disclosed and the rate of royalty is disclosed at 15 % of average sale pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of iron ore fines to China. Fines and concentrates, there being little use in India which has negative environmental externality, make up about 90% of Indian iron ore exports currently. He also referred to iron ore mine lease agreement particularly, the royalty fees and submitted that the petitioner is paying royalty fee. He also referred to part-II regarding liberty, power and privileges to be exercised and enjoyed by the lessee/lessees, subject to the restrictions and conditions in part-III. He further referred the rate and mode of payment of royalty and submitted that the petitioner is paying the royalty in terms of the agreement. He also referred part-III the restrictions and conditions as to exercise of liberty, power and privileges in part-II. By way of referring to clause-5 which speaks about no mining operation within 50 meters of public work etc. and submitted that, that has been taken care of. He also referred facilities for adjoining Government licenses and leases of the said agreement. By way of referring the said document he submitted that the provision has been made in respect of any case of default in payment of rent or water rate or royalty as required under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , provision of I.P.C and other Act will not apply. To buttress his this argument, he relied in the case of Sharat Babu Digumarti v. Government (NCT of Delhi) (2017) 2 SCC 18. The paragraph nos.28, 29, 31, 37 and 38 of the said judgment are quoted hereinbelow: 28. We have referred to all these provisions of the IT Act only to lay stress that the legislature has deliberately used the words electronic form . Dr Singhvi has brought to our notice Section 79 of the IT Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. The learned counsel has also relied on Shreya Singhal as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69-A and in that context, expressed that: (SCC pp. 180-81, paras 121-23) 121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge. He would contend that the Act has created a separate and distinct category called originator in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal, he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasising on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr Singhvi, constitute a holistic trinity. 31. Having noted the provisions, it has to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the same shall prevail over the provisions of the Code. And again: (SCC p. 538, para 27) 27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. 10. Referring this judgment, he further submitted that it is well settled that when a special law is there that shall prevail over the general and prior laws like I.P.C. By way of referring to this, he submitted that the entire proceeding is bad in law. At This stage, he further referred to the case of Krishnanand Tripathi (supra) and submitted that this issue has been settled by the Division Bench judgment and only to harash the petitioner, the present proceeding has been initiated. He referred to the order of the revision application and submitted that after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India or exported to other countries. He submitted that on 19.01.1998 in prescribed Form-I application for lease was made. Government of India letter is dated 07.11.2003 by which the 20-year recommendation for lease over an area of 383.20 acres in Mauza-Ghatkuri Reserve Forest was recommended by the Government of India. He submitted that modified plan has been submitted on 30.06.2004 which was approved by the Government of Jharkhand on 16.03.2005. On 16.08.2005, the mining lease was executed and the revision application was decided by order dated 19.05.2009 and on 11.12.2009, the restrictions were communicated by the Government of Jharkhand which has been amended as one time resolution by the Government of Jharkhand on 27.08.2011 by way of Gazette notification. In the 'Krishnanand Tripathi' judgment by the Division Bench delivered on 14.02.2012 and on 19.09.2012 the Central Government communicated regarding the restrictions and by Annexure-10 dated 21.03.2013 it was clarified that all will be exercised at the time of renewal of the lease or on the fresh application. He submitted that so far the sale and export is concerned, that has already been over by the year 2010. In te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 415 of the Indian Penal Code a person is said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him, or to consent that he shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. There can be no doubt that the appellants had by deceiving the Station Master induced him to deliver a railway receipt which could be used as a valuable security; but assuming that the appellants thereby induced the Station Master to make out the railway receipt it will still have to be shown that the making out of the receipt was likely to cause damage or harm to the railway or the Station Master. 6. We have therefore to examine whether the issue of the railway receipt with the endorsements said to contain and S. W.A. were likely to cause any damage to the railway. Under Section 58 of the Indian Railways Act the owner or person having charge of any goods which are brought upon a railwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not cast any additional liability on the railway and the issue of the railway receipt therefore was not likely to cause any damage or harm to the railway. No question of cheating the railway or the Station Master therefore arose in this case and the appeal must be allowed. The appellants are directed to be set at liberty. The fine, if paid, must be refunded. 11. He relying on this, submitted that in terms of section 415 of the I.P.C, no case of dishonesty by any person fraudulently or dishonestly has been made out against the petitioner. He referred to the statement of Mr. Pramod Kumar Fatepuria recorded by the prosecution and disclosed in the complaint petition and other witnesses. By way of referring the National Steel Policy of 2005, particularly, clause-7.48 regarding restrictions on the export of iron ore he submitted that it has been disclosed therein that export of iron ore with lower Fe content are free and do not need any license, relying on this, he submitted that only lower Fe has been exported by the petitioner that too, in the year 2010. He relied in the case of Krishnanand Tripathi v. State of Jharkhand and Others , 2012 SCC OnLine Jhar 198. Paragraph nos.3,4,5,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. However, according to the learned Advocate General, this petition is, in fact, against all interest of the State, so as to deprive the hundreds and thousands crores of royalty to the State. It is also submitted that, in fact, it is the petitioner who could have acted in public interest than to challenge the order staying the sale of the fines, which has been stayed by the order Annex-ure-B, annexed with the supplementary counter affidavit by the State whereby, by the executive order, even sale of the iron ore itself has been stayed in the matter of three companies i.e. Steel Authority of India, Tata Steel Ltd. and Usha Martin Ltd. The State only corrected the mistake which was committed by Annexure-B dated 11th December, 2009 and it was sent to the concerned authority on 17th December, 2009. It is also submitted that the writ petition lacks the material particulars with respect to the research made by the writ petitioner and about his credential also. Learned Advocate General submitted that the State Government has taken a conscious decision in view or the fact that one of the authority in the State of Jharkhand passed the stay order on sale of the fines and that too in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fines or if there is a purported order Annexure-B of staying the sale of the fines then that would be, in fact, perpetuating the illegality committed by that authority, putting an embargo upon the sale of fines contrary to the statutory provisions made by the Central Government. The learned Advocate General also drew our attention to some relevant provisions of the said Act and Rules, referred above, and again reiterated that, in fact, the State Government has no right to impose any condition or restriction by any order of staying the sale of the fines or any other materials and, therefore, the writ petition is wholly misconceived as well as a motivated litigation, to have the political mileage only. 6. Learned counsel for the respondent No. 5 vehemently submitted that the various provisions made under the above Act and Rules, which we have already referred, clearly indicate that under Section 5 of the Act, the scheme of mining is required to be approved by the Indian Bureau of Mines and this exercise is done periodically and for the period 2010 11 to 2014 15 such Scheme was approved by the Indian Bureau of Mines, wherein also in addition to prescribing of the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for mining lease Annexure-R-5/1, wherein also under Clause (xix). it is clearly provided that in a case of use of mineral raised in a mining area by the respondent-Company and if it is for captive use then it is to be used according to Clause (xix)(a)(ii) and it has been provided thereafter For sale for indigenous consumption - only surplus ore, if any to be sold. It is clearly indicated that if the Company itself applied for permission to sale the surplus ore and has already pointed out that those cannot be utitized by the Company as its end product and it contain some condition of the mining which can be processed and can be converted into small portion for other use and when there is buyer then the lease holder under his statutory right created by virtue of the various provisions of the Act followed in Form K has right to sale the fines. The learned counsel for respondent No. 5 also relied upon the judgment of Supreme Court, delivered in the case of Ramlal and Sons v. State of Rajasthan, reported in (1976) 1 SCC 112 : (AIR 1976 SC 54), wherein the Hon'ble Supreme Court held that where grant of mining lease was envisaged under definite statutory rules made in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to the maintainability of the present writ petition, in view of the basic reason that, prima facie, it is admitted by all the parties, by the State Government and Union of India as well as by the private parties that the power to frame Rules for such subject of protection of the environment in mining area and framing of the Rule vests in the Central Government and, therefore, when State Government came up with an order which has been issued by the Department of Mines Geology of the State Government and, that too, under the heading of policy decision but without showing any of the provisions of law in which such Resolution was issued by the State Government and admittedly this order dated 27th August, 2011 is not an order of withdrawal of any earlier stay order granted against the sale of the fines but it is absolutely an independent Resolution in the form of policy decision and it contains permission for disposal of iron ore fines overburden and other waste materials of the captive iron ore mines. It also prescribed the size of the iron ore which shall be below 10 mm. We are conscious that even if the size of the iron ore fines has been prescribed by the Central Government t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the State by increasing capacity for which approval on a time bound programme will have to be obtained from the department. So these restrictions imposed by this Resolution is contrary to even the argument advanced by the learned counsel for the respondents and, therefore, on technical ground of non-following the complete procedure in true spirit, we are not inclined to dismiss the writ petition. 13. If we go into the merit of the case, then it is not in dispute that the Resolution of the State Government dated 27th August, 2011 being issued without authority of law and in contravention to the provisions of the Act of 1957 and Rules, wherein the powers have been separately given to only the Central Government in prescribing of the relevant Rules, including the provisions to be made which have been already made by the Central Government. However, it is a different issue, whether the petitioner can succeed in the writ petition. In view of the fact that if the argument of the learned counsel for the petitioner is accepted in toto then it was the duty of the writ petitioner to show that under which law the petitioner is seeking direction against the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o section 3 of Prevention of Money Laundering Act, 2002 (hereinafter to be referred to as the 'Act of 2002') and submitted that offence of money laundering has been defined therein that directly or indirectly attempts to indulge or knowingly assists or knowingly is a party and concealment possession, acquisition and untainted property are to be held guilty of offence of money laundering. The petitioner has not done any wrong indirectly or directly and thus, the cognizance under the Money Laundering Act is bad in law. He further referred to section 2(1)(u) and submits that the proceeds of crime means any property derived or obtained, directly or indirectly, in terms of criminal activity only will come under that Act. He submitted that under section 2(1)(y) the scheduled offence has been described at Part -A and Part-B and by way of referring this schedule, he submitted that nowhere in the schedule the Act of 1957 has been mentioned and thus, Money Laundering Act will not apply. To buttress his this argument, he relied in the case of P.Chidambaram v. Directorate of Enforcement , (2019) 9 SCC 24. Paragraph no.24 of the said judgment is quoted hereinbelow: 24. Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment. (emphasis supplied) 34. In Pepsi Foods Ltd. v. Judicial Magistrate, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple is not permissible. He relied in the case of Sunil Bharti Mittal v. C.B.I , (2015) 4 SCC 609 and submitted that application of mind is necessary and satisfaction about the allegation, if proved, would constitute an offence. He referred to paragraph no.48 of the said judgment, which is quoted as under: 48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. 16. On these grounds, Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner submitted that the Act of 1957 is a special a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned produce for captive utilization in its own plant which has been undertaken by the petitioner in its application dated 19.01.1998 that it would use the iron ores in its own plant and not export the same. He further submitted that the Ores/Fines/Fe content has been disclosed by the petitioner unit as per its own convenience and the petitioner was not supposed to sell/export the mining produce as per the allocation of the mining lease. He further submitted that in the investigation under the PMLA, it is revealed that the data relating to export of mining produce has not been disclosed to the Indian Bureau of Mines/Mining Department and no document relating to permission obtained from the concerned Government Authorities, regarding sale and export of iron ores were produced before the investigating agency and even during the statement recorded under section 50 of the PMLA, the G.M, Marketing and Commercial of the petitioner has admitted that no any such permission/approval had been taken from the concerned authority. He submitted that just after the granting of lease, petitioner started export of iron ores from the year 2006 itself which is against the undertaking. Mr. Das, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of the matters relating to export. He also referred to statement at Paragraph 7.3 of Mr. Devashish Mazumdar, President of Works of the petitioner who has admitted that the petitioner has given undertaking in bond paper that iron ore will be used in captive plant only. He also referred to the statement at Paragraph no.7.4 of Inderdeo Paswan, the then Director of Mines, Jharkhand and of Mr. Pravin Kumar Jain, Joint Managing Director, Wire and Wire Rope Division of the petitioner. He submitted that Pravin Kumar Jain has also admitted that the petitioner has exported iron ore fines for total quantity 2,54,824 DMT during the period 2008-09, 2009-10 and has also admitted that all export proceeds have been realized. The statement of Rajiv Jhawar as per para 7.6 by Anirban Das Sanyal, Chief Finance Officer and Chief Operating Officer at paragraph 7.7. He submitted that disclosure made in Form-I has been disclosed at paragraph 9.3 of the petition and in column xix(a)(ii) of the said application the petitioner submitted that they may sell iron ore indigenously only if there is surplus ore. By way of referring the statement of the officers of the petitioner, he submitted that they have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. Relying on this judgment, he submitted that the Hon'ble Supreme Court has considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein viz. offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 CrPC as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of the said Act, which would prevail over the provisions of CrPC. Reference was made to clause (iv) of sub-section (3) of Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the MMDR Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957. 20. He further submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 75. In Halsbury s Laws of England, it has been stated: Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive. 76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction. 23. He further submitted that it is well settled that if initial action is not in accordance with law, the second will not survive. To buttress this submission, he relied in the case of State of Punjab v. Devinder Pal Singh Bhullar and Others , (2011) 14 SCC 770 and referred to paragraph 107 of the said judgment which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that cheating is not prescribed under the scheduled of section 2(1)(y) of the Act. It is an admitted fact that the C.B.I has registered the case under section 120B and 420 of the IPC. On perusal of the complaint petition, none other than the officers of the petitioner have admitted about export of iron ore and Rajiv Jhawar has evaded most of the questions and made allegation against Fatepuria that he was the incharge of export. In view of own admission of the officers of the company about the export, at this stage, it cannot be held that the petitioner was not exported the iron ore. Moreover, when undertaking to that effect has been submitted by the petitioner that iron ore will be used for own industry only. 26. Explanation to section 3 of P.M.L.A Act which has been added later on stated that process or activity connected with proceeds of crime continues till such time a person is directly or indirectly enjoying the proceeds of the crime, accordingly the entire process/activity connected to the proceeds of crime is a continuing offence. This has been considered by this Court in the case of Hari Narayan Rai v. Union of India and Others , W.P.(Cr.) No.325 of 2010 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well settled and is not helping the petitioner. The judgment relied by Mr. Luthra, the learned Senior counsel in the case of Sharat Babu Digumarti v. Government (NCT of Delhi) (supra) was arising out of Information Technology Act, 2000 and considering sections 67, 67A and 67B of the said Act, the Court held that when provision under Special Act is there I.P.C will not apply. In the case in hand, the schedule offence in terms of section 2(1)(y) is there, and thus, this judgment relied by the learned counsel appearing on behalf of the petitioner is not helping the petitioner. The judgment relied by Mr. Luthra, the learned counsel appearing for the petitioner in the case of Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others and in the case of Sunil Bharti Mittal v. C.B.I (supra) not in dispute and it is well settled that summoning a person as accused in a criminal proceeding seriously affects ones dignity and personal reputation in the society, it is well settled, however, in the case in hand, the learned court has discussed minutely about the allegations made against the petitioner and thereafter has taken cognizance. In the light of the discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. 75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with. 52. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge-sheet, number of materials like statement of witnesses, bank statement of the respondent-accused and his company Nile Trading Corporation and other bank statement, call detail records and other materials were placed. Upon consideration of the second supplementary charge-sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction. 53. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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