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TMI Blog2020 (8) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ising out of the very same impugned order dated 19.07.2019 passed in VGR Case No. 19 of 2011 by the learned Special Judge (Vigilance), Keonjhar, they are heard together analogously and disposed of by this common order. 3. The case in nutshell is that a mining lease was granted in favour of Late Banshidhar Patnaik, the father of the accused-petitioner in CRLREV No. 534/2019 Jitendranath Patnaik over an area of Ac. 260.00 dec. for Manganese and Iron Ore. Mining lease so granted for Manganese was for 20 years and for Iron Ore was for 30 years. The lease period started on 31.07.1959. However, in the year 1967 said Banshidhar Patnaik surrendered the mining lease in respect of Manganese but continued in respect of Iron Ore. Before expiry of the said lease period, he applied for renewal of the lease on 30.07.1988 for the break up area, but without the de-reservation proposal though there were forest areas within the applied area. However, no renewal of fresh lease was granted in his favour after 31.07.1989, but the period was further extended for one year more i.e., till 31.07.1990 in view of Rule 24-A of the Mineral Concession Rules, 1960 as it then was. 4. Allegedly accused Jitendrana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Section 22 of the MMDR Act, since there is a bar for taking cognizance of any offence under the said Act unless the complaint in writing is made by a person authorized in this behalf by the Government, the cognizance taken on the report of Vigilance Police is bad in the eye of law. It is further submitted that in the Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 (hereinafter referred as OMPTS Rules), the 'competent authority' as defined under Rule 2(1)(b) is any officer mentioned in Schedule-I appended to the said Rules. Bringing attention of this Court to said Schedule-I, it is pointed out that the name of any such Vigilance Official is not appearing as such in the schedule. Therefore, the complaint at the instance of the Vigilance Police and initiation of the proceeding thereof by taking cognizance of the offences by the court below is vitiated. It is also submitted that, whatever may be the contravention is, of the provisions of the MMDR Act or MCD Rules, the same never mean to constitute the offence of theft. The learned court below has not appreciated the law properly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(b) as 'Officers mentioned in Schedule-I' of the said Rules. In Schedule-I, 15 Mining Officers including the Director and Dy. Director of Mines for different areas of jurisdiction have been named. Further the Government in the Department of Steel and Mines, in exercise of power conferred under Sections 22 and 23B of the MMDR Act, in its Notification dated 19.12.2009 has named the Director of Mines and two Joint Directors authorizing them to exercise the powers of detection/seizure and confiscation etc. in connection with illegal mining activities for all type of minerals covering the entire State of Odisha. For better appreciation, the said Notification is reproduced below: "DEPARTMENT OF STEEL & MINES NOTIFICATION The 19th December 2009 No. 8096--IV(A)-SM-101/2009-SM.--Whereas, the Government of Orissa have been considering delegation of original powers of detection, seizure, investigation, prosecution, etc. under the provisions of M. & M. (D. & R.) Act, 1957 and O.M.P.T.S. Rules, 2007 to the Joint Director/Deputy Director/Mining Officer deputed to State Level Enforcement Squad (S.L.E.S.) for checking illegal mining to exercise such powers all over the State; Now, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the provisions of the Acts/Rules mentioned below may be applicable for the purpose of investigation of the cases. 1. The Orissa Forest Act, 1972 2. The Wildlife (Protection) Act, 1972 3. The Indian Forest Act, 1927 4. The Forest (Conservation) Act, 1980 5. The Forest (Conservation) Rules, 2003 6. The Environment (Protection and Control of Pollution) Act 7. The Environment (Protection) Rules, 1986 8. The Air (Prevention and Control of Pollution) Act, 1981 9. The Air (Prevention and Control of Pollution) Rules, 1982 10. The Water (Prevention and Control of Pollution) Act, 1974 11. The Water (Prevention and Control of Pollution) Rules, 1975 12. The Water (Prevention and Control of Pollution) Cess Act, 1977 13. Orissa Minor Mineral Concession Rules, 2004 14. The Mines Act, 1952 15. The Mines and Minerals (Development and Regulation) Act, 1957 16. The Mineral Concession Rules, 1960 17. Orissa Minerals (Prevention of Theft, Smuggling and other Unlawful Activities) Act, 1988 18. Orissa Minor Minerals Concession Rules, 2004 19. Orissa Minerals (Prevention of Theft, Smuggling and Illegal Mining and Regulation of Possession, Storage, Trading and Transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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." Similarly this Court in the case of Ramesh Kumar Agrawal (supra), relying on the aforesaid decision of the Supreme Court has quashed the order of cognizance taken for the offence under Section 21 of the MMDR Act. 15. It is true that in the aforesaid two cases relied upon by the petitioners, the Police had instituted the complaint and submitted the final report. The Police had no authorization for doing enquiry or investigation or to take any legal action in respect of any offence under the MMDR Act. But here is a case, which clearly shows that the Vigilance Police of and above the rank of Inspector, have been specifically authorized to conduct the investigation/enquiry and to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument does not appear convincing in view of the observation of the Hon'ble Supreme Court made in the case relied upon by the petitioners in the case of State of NCT (supra). It is further observed in the said decision that where a person without any lease or license or authority extract minerals and remove and transport them with an intent to remove dishonestly, is liable to be punished of committing such offence under Sections 378 and 379 of the IPC. In paragraphs 71, 72 and 73 of the judgment the Hon'ble Supreme Court held as follows: "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 mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d acceptable. It is because Rule 7 has a limited field of application and cannot be extended to put an absolute bar against criminal prosecution. In the case of State of Maharashtra Vs. Keshav Ramchandra Pangare & Another, reported in (1999) 9 SCC 479, the respondent Keshav Ramchandra Pangare retired as Dy. Engineer, P.W.D. in the State of Maharashtra. Prosecution launched against him under Sections 120-B, 406, 420, 465, 466, 467, 468, 471, 477 and 109 IPC and Sections 5(i)(c),(d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. His challenge before the Bombay High Court was that the complaint being filed beyond the period of four years from the date of commission of the offence, it is barred by Rule 27(3) of the Maharashtra Civil Services (Pension) Rules, 1982. The Bombay High Court accepted the plea and held that Rule 27 of the Pension Rules was directly applicable and it is mandatory that prosecution should be launched within four years from the date of commission of offence and consequently quashed the criminal proceeding against the respondent. The said judgment was challenged by the State of Maharashtra before the Supreme Court. Rule 27 of the Maharashtra Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single Judge of the Bombay High Court in Prabhakar Govind Sawant v. State of Maharashtra and others, (1991) Maharashtra Law Journal 1051, rejected the contention that the prosecution was barred under Rule 27 of the Pension Rules as it was launched after the period of four years. In that case, the learned Judge also referred to Article 254 of the Constitution and held that the provisions of the Criminal Procedure Code shall have an overriding effect and shall prevail notwithstanding any provision in the Pension Rules framed by the State Government. It is unfortunate that the attention of the learned Single Judge was not drawn to the said decisions which are of a binding nature at least as far as the High Court is concerned. That apart, learned Single Judge, instead of jumping to a conclusion solely based on Rule 27 of the Pension Rules should have examined the relevant provisions of the Code before axing down the criminal prosecution in respect of serious offences." This Court also by relying the said decision of the Supreme Court, in the case of Fani Bhusan Das & Anr. Vs. State of Odisha (CRLMC Nos. 258 & 686 of 2004, and 2626 of 2007), has observed that the provision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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