Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12782 of 2011 ====================================================== Prakash Chandra Yadav @ Prakash Yadav, son of Anandi Yadav, resident of Milkichak, P.S. Naya Ram Nagar, District- Munger. .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Commissioner-cum-Secretary, Department of mines, Government of Bihar, Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Rana Pratap Singh,Sr. Advcoate. Mr. Amit Kumar Singh, Advocate. For the Opposite Party No.2: Mr. V.M.K. Sinha, Spl.PP Mines. For the State : Mr. M Haque, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 11 29-11-2012 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 22.5.2010 passed in Naya Ram Nagar P.S. Case No.73 of 1993, G.R. No.1350 of 1993 by the Chief Judicial Magistrate, Munger by which he has taken cognizance against the petitioner under [STATUTE] and Section 21(i) of the Bihar Minor Mineral (Development and Regulation), Act, 1957 (hereinafter referred to as „the Act‟). 3. It appears from the record that on the basis of the secret information received by the higher officials on Patna High Court Cr.Misc. No.12782 of 2011 (11) dt.29-11-2012 2 12.9.1993 an F.I.R. was lodged stating therein that Prakash Yadav was illegally doing quarrying activities to the plot which was not leased out to him and thereby committing theft causing a loss to the State exchequer. On the direction of the higher officials, the constituted team raided the Nauagarhi hills where three persons were found using drilling and another person was sitting on the tractor. When they saw the police party, they tried to flee away but they were chased and caught but one person could escape. They gave their names and also named Prakash Yadav who escaped from the place of occurrence. It has been alleged apparatus of quarry and detonator were recovered, on demand of relevant documents, they failed to produce and as such in presence of two different independent persons a seizure list was prepared and copy of the same was handed over to them. In the First Information Report the petitioner is one of the accused and the court below took cognizance vide order dated 22.5.2010 for the offences under [STATUTE] and section 21(i) of the Act. 4. In this case the court below has taken cognizance under the Indian Penal Code as well as under the Act. 5. Learned counsel for the petitioner has argued with Patna High Court Cr.Misc. No.12782 of 2011 (11) dt.29-11-2012 3 regard to taking cognizance under the Act, he has relied on Rule 41 of the Bihar Minor Mineral Concession Rules, 1972 (hereinafter referred to as „the Rules‟) which provides that the Competent Officer or Deputy Director of Mines or Additional Director of Mines or Director of Mines or any other Officers empowered by the Government will be the competent person to lodge the case. He further submits that the present case has not been lodged by the competent Officers as aforesaid nor the State Government has empowered the police to file the case under the Act. 6. Learned counsel for the Mines Department, with regard to Indian Penal Code, has submitted, when illegal quarrying activities were done by the petitioner he would be liable under the Indian Penal Code as well as for violation in the Act including the Rules. He has further submitted that basic idea is to recover the loss that was caused to State exchequer as is apparent from Rules 40-42 of the Rules and so much so there is no illegality in taking cognizance on the basis of the recovery made by the police as offence has been made cognizable. He has relied on the judgment in the case of M/S Khanna Construction through its Proprietor Santosh Khanna Vs. The State of Bihar and another, reported in 1994 Patna High Court Cr.Misc. No.12782 of 2011 (11) dt.29-11-2012 4 (I) P.L.J.R. 62 and in the case of M/S Madhusudan Choudhary and others Vs. State of Bihar & others, reported in 1996(I) P.L.J.R. 723. 7. Having considered the rival contentions of the parties here is the question as to whether the police has authority to lodge the case in connection with offence arising from the Act read with the Rules. Section 21 of the Act deals with the penalties where it has provided that in case of contravention of the provisions of sub-section(1) or sub- section (1A) of Section 4 punishment may be extended to two years or with fine which may extend to Rs.25,000/- or with both and sub-section (2) of Section 21 of the Act provides punishment of one year in case of violation of Rule made under the Act or with fine which may extend to Rs.5,000/-. The offence has been made cognizable under sub- section (6) of Section 21 of the said Act. Section 22 of the Act provides that no court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. Rule 40 of the Rules provides penalty for unauthorized extraction and removal of minor Patna High Court Cr.Misc. No.12782 of 2011 (11) dt.29-11-2012 5 minerals. Sub-Rule (1) of Rule 40 provides that if a person is party to the illegal removal minor minerals the person shall be punishable with simple imprisonment which may extend to six months or with fine, which may extend to Rs.5,000/- or with both. Sub-rule further provides that if any person is found extracting or removing or transporting minor minerals in contravention of the provisions of these rules, the competent Officer or Deputy Director Mines or Additional Director Mines or Director of Mines will seize the minor minerals together with all tool

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.