Arrangement (Video Conferencing/Physical Mode).

Heard Mr. Sidhartha Das, learned counsel for the petitioner and Mr. Ashok Kumar Parija, learned Advocate General appearing for the State of Odisha.

This is an application under section 438 of Cr.P.C. for grant of anticipatory bail to the petitioner in connection with C.T. Case No.102 of 2022 arising out of Jakhapura P.S. Case No.06 of 2022 pending in the Court of learned J.M.F.C., Jajpur Road for alleged commission of offences under section 379 of the Indian Penal Code read with section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter the 'M.M.D.R. Act').

// 2 // During course of argument, learned counsel for the petitioner submitted that the ingredients of the offence under section 21 of the M.M.D.R. Act are not attracted in the factual scenario and moreover, such offence is triable by the Special Court but no Special Court has yet been constituted in the State of Odisha.

The Registry was asked to get information as to whether any Special Court has been constituted in the State of Odisha in view of section 30B of the M.M.D.R. Act and the answer was in negative.

Learned Advocate General was requested yesterday to remain present today to assist this Court during the hearing of this anticipatory bail application and he graciously assisted this Court.

A recent Three Judge Bench decision of the Hon'ble Supreme Court in the case of Pradeep S. Wodeyar -Vrs.- State of Karnataka reported in (2022) 85 Orissa Criminal Reports (SC) 477 dealt with different provisions of the M.M.D.R. Act.

In paragraph no.44, it is held as follows:

Environmental crime is not confined within geographical or state limits. The impact of environmental crime transcends borders and time.

Environmental crime may or may not have an immediately identifiable human victim but there can be no mistaking its consequence for the entire bio-system of which human beings are an intrinsic, but not the only, element. Environmental crime is in essence a planetary crime - it affects every component of the natural systems with which the planet has been endowed. They constitute our heritage; a heritage which is held in trust by the present for the future. Illegal mining Page 3 of 15 // 4 // denudes the eco-system of valuable resources. The destruction of the natural environment has serious consequences for the present and the future. The MMDR Act must hence be construed in this perspective. At one level, illegal mining deprives the State of its revenues. But the law is not merely a revenue yielding or regulating measure. The essence of the law is to protect human kind and every species whose existence depends on natural resources from the destruction which is caused by rapacious and unregulated mining. The offences which have been taken into account by Parliament while enacting sub-sections (1) and (1A) of Section 4 intrinsically affect the environment which, in turn, affects the existence of communities who depend on the environment and of every species to whom it provides nurture and sustenance. It is because of the wide- ranging impact of such offences on the life of the community and on the well- being of not only the present, but of the Page 4 of 15 // 5 // succeeding generations, that principles such as the precautionary principle, the public trust doctrine and the concept of sustainable development have gained a sure jurisprudential foundation. In environmental crime, there may be no single, immediate victim. The act which predicates the offence is a crime against humanity. These crimes might not be perceived in the present to have immediate, foreseeable or quantifiable repercussions but there is no mistaking that they impact the life of future generations;

(iv) The Preamble of the Act at the time of its enactment indicated that it is an "Act for regulation of mines and the development of minerals". This was substituted by Act 38 of 1999 to emphasise that the "Act provides for the development and regulation of mines and minerals". The amendment to the Preamble is indicative of the intent of the legislature that development and regulation must proceed hand-in-hand, and in order to reduce the increasing Page 5 of 15 // 6 // magnitude of environmental crime, development needs to be regulated and sustainable. Thus, when Parliament amended the MMDR Act to include Section 30B in 2015 for the constitution of Special Courts which would be deemed to be Courts of Session conferred with all requisite powers, the object and purpose of the legislative provision must be borne in mind. The ultimate object of the provision is to ensure that violators are punished by a speedy process of trial before a Court duly constituted in that behalf."

It is further held in paragraph-56 that:

It is further held in paragraph-60 that:

It is further held in paragraph-66 that:

It is further held in paragraph-67 that:

It is further held in paragraph-75 that:

It is further held in paragraph-77 that:

It is further held in paragraph-85 that:

On a careful reading of the aforesaid judgment, it appears that a detailed discussion was made as to why the punishment for the offences under the M.M.D.R. Act was enhanced and why it was felt Page 12 of 15 // 13 // necessary to constitute Special Courts for trial of the offences under the M.M.D.R. Act, which relates to contravention of the provisions of sub-section (1) or sub-section (1-A) of section 4 . It is also very clear that not only basing on the complaint filed by the authorized person as per section 22 of the M.M.D.R. Act, the Court can take cognizance of any offence punishable under M.M.D.R. Act or any rules made thereunder but also on a police report, which may include the offence under 21 of the M.M.D.R. Act so also the offences under the Indian Penal Code , the Special Court has got power to take cognizance of the offences and try the case.

The learned Advocate General submitted that he has obtained instruction that only ten cases under M.M.D.R. Act which relates to the Vigilance Cases are pending in the State of Odisha.

When it is pointed out that there are number of police cases in which apart from the offences under Indian Penal Code , offence under section 21 of the M.M.D.R. Act have been added and charge sheet has also been submitted and the Magistrates are also trying such offences even though section 30(B) of the M.M.D.R. Act requires the Special Court to try the offence under 21 of the M.M.D.R. Act (which is attracted when there is contravention of the provisions Page 13 of 15 // 14 // of sub-section (1) or sub-section (1-A) of section 4 of the Act) and the Special Court can try such offences along with other connected Indian Penal Code offences in view of the ratio laid down in the case of Pradeep S. Wodeyar (supra), learned Advocate General seeks one week time to apprise this Court as to how many P.S. Cases have been instituted/pending under 21 of the M.M.D.R. Act along with the offences under Indian Penal Code , particularly, in some of the districts where such offences are rampant.

As requested, list this matter along with ABLAPL No.1179 of 2022, ABLAPL No.1182 of 2022, ABLAPL No.1199 of 2022, ABLAPL No.1201 of 2022, ABLAPL No.1203 of 2022, ABLAPL No.1204 of 2022, ABLAPL No.1216 of 2022, ABLAPL No.1224 of 2022, ABLAPL No.1263 of 2022 and ABLAPL No.1265 of 2022 on 15.02.2022.

Learned counsel for the State shall obtain instruction about the criminal antecedents, if any, against the petitioner in the meantime.

Till the next date, the petitioner shall not be arrested in connection with Jakhapura P.S. Case No.06 of 2022 corresponding to C.T. Case No.102 of 2022 pending in the Court of learned J.M.F.C., Jajpur Road subject to further condition that he shall make himself available for interrogation by the Investigating Officer Page 14 of 15 // 15 // as and when required.

The file be placed before the learned Registrar Judicial shall call for a report from the learned District Judges indicating how many P.S. Cases involving offences under M.M.D.R. Act are subjudiced in their respective judgeship. The report should be furnished by 14.02.2022.

A free copy of this order be handed over to the learned Advocate General for the State of Odisha.

Urgent certified copy of this order be granted on proper application.

( S.K. Sahoo) Judge RKM Page 15 of 15