1994 JTR(Cal) 368
1995 1 CalLT 95 ; 1995 1 CHN 1
High Court Of Calcutta
Nripendra Kumar Bhattacharyya
SEEMA SARKAR - Appellant
Versus
STATE - Respondent
CRI. REV. 2066 Of 1994
Decided On : 12/07/1994
A complaint under the Mines and Minerals (Regulation and Development) Act, 1957 must be lodged by a person authorized to do so, and the taking of cognizance by a Magistrate based on a complaint that is not legally valid is bad.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.190, S.482
MINES AND MINERALS REGULATION AND DEVELOPMENT ACT : S.21(2)
MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1957 - SECTION 21 (2) - WEST BENGAL MINOR MINERALS RULES, 1973 - RULE 3 (B) - CRIMINAL PROCEDURE CODE, 1973 - SECTION 190 - UNAUTHORIZED EXCAVATION OF EARTH - COMPLAINT BY UNAUTHORIZED PERSON - TAKING COGNIZANCE - SPLITTING OF COGNIZANCE - LEGALITY.
Fact of the Case:
The accused petitioner challenged the proceeding in G. R. Case No. 664 of 1993 arising out of Bhatar Police Station Case No. 42 of 1993 under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 and section 379 of the Indian Penal Code. The complaint was lodged by the Block Land and Land Reforms Officer, Bhatar, alleging that the accused petitioner had unauthorizedly excavated land for manufacturing brick without a license.
Finding of the Court:
The court found that the complaint was lodged by a person who was not authorized to do so and that the taking of cognizance by the Magistrate was bad. The court also found that the splitting of cognizance was not permissible under the law.
Issues: 1. Whether the complaint was lodged by an authorized person. 2. Whether the taking of cognizance by the Magistrate was bad. 3. Whether the splitting of cognizance was permissible under the law.
Ratio Decidendi: 1. The court held that the complaint was not lodged by an authorized person because the Block Land and Land Reforms Officer was not an authority within the meaning of Rule 3 (b) of the West Bengal Minor Minerals Rules, 1973. 2. The court held that the taking of cognizance by the Magistrate was bad because it was based on a complaint that was not legally valid. 3. The court held that the splitting of cognizance was not permissible under the law because cognizance is one and cannot be divided.
Final Decision: The court quashed the complaint and the G. R. Case No. 664 of 1993 pending in the court of the learned Sub-Divisional Judicial Magistrate, Burdwan.
MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1957 - SECTION 21 (2) - WEST BENGAL MINOR MINERALS RULES, 1973 - RULE 3 (B) - CRIMINAL PROCEDURE CODE, 1973 - SECTION 190 - UNAUTHORIZED EXCAVATION OF EARTH - COMPLAINT BY UNAUTHORIZED PERSON - TAKING COGNIZANCE - SPLITTING OF COGNIZANCE - LEGALITY.
Fact of the Case:
The accused petitioner challenged the proceeding in G. R. Case No. 664 of 1993 arising out of Bhatar Police Station Case No. 42 of 1993 under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 and section 379 of the Indian Penal Code. The complaint was lodged by the Block Land and Land Reforms Officer, Bhatar, alleging that the accused petitioner had unauthorizedly excavated land for manufacturing brick without a license.
Finding of the Court:
The court found that the complaint was lodged by a person who was not authorized to do so and that the taking of cognizance by the Magistrate was bad. The court also found that the splitting of cognizance was not permissible under the law.
Issues: 1. Whether the complaint was lodged by an authorized person. 2. Whether the taking of cognizance by the Magistrate was bad. 3. Whether the splitting of cognizance was permissible under the law.
Ratio Decidendi: 1. The court held that the complaint was not lodged by an authorized person because the Block Land and Land Reforms Officer was not an authority within the meaning of Rule 3 (b) of the West Bengal Minor Minerals Rules, 1973. 2. The court held that the taking of cognizance by the Magistrate was bad because it was based on a complaint that was not legally valid. 3. The court held that the splitting of cognizance was not permissible under the law because cognizance is one and cannot be divided.
Final Decision: The court quashed the complaint and the G. R. Case No. 664 of 1993 pending in the court of the learned Sub-Divisional Judicial Magistrate, Burdwan.
ALAKANANDA BOSE, ASOKE KUMAR, RAMENDRA NATH CHAKRAVORTI, SUBHANKAR SEN
N. K. BHATTACHARYYA, J.
( 1 ) THE accused petitioner has challenged the proceeding in G. R. Case No. 664 of 1993 arising out of Bhatar Police Station Case No. 42 of 1993 dated 18th May, 1993 under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 and section 379 of the Indian Penal Code. The said G. R. Case is pending before the court of the learned Sub-Divisional Judicial Magistrate, Burdwan.
( 2 ) THE short background of the case is that the Block Land and Land Reforms Officer, Bhatar, lodged a complaint with the Bhatar Police Station as the Authority under the West Bengal Minor Minerals Rules, 1973 alleging, inter alia, that the accused petitioner has unauthorisedly excavated the land amounting to 55. 582 Cft. of ordinary clay for manufacturing brick without any authorised licence from the government and as such she has contravened section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 and section 379 of the Indian Penal Code, Bhatar Police Station registered the complaint treating it as an F. I. R. being Bhatar P. S. Case No. 42 of 1993 dated 18th May, 1993 and on the strength of the same G. R. Case as aforesaid was started before the learned Sub-Divisional Judicial Magistrate, Burdwan.
( 3 ) THE learned Advocate for the petitioner, Mr. Asoke Kumar Chakrabarty, challenged the order of taking cognizance and so also the complaint itself on twin grounds. According to Mr. Chakraborty, no court is competent and empowered to take cognizance of an offence under the Mines and Minerals (Regulation and Development) Act, 1957 unless the complaint is being lodged by a person authorised in this behalf either by the Central Government or by the State Government. He also referred to the definition clause under the West Bengal Minor Minerals Rules, 1973, being rule 3 of that Rule, where such authority has been mentioned as in sub-rule (b) of Rule 3. Mr. Chakraborty further submitted that the Block Land and Land Reforms Officer being not an authority within the meaning of the said rule, lodging of complaint by him has no legal sanctity and taking cognizance on that allegation and the complaint being treated as an F. I. R. is also illegal. He has not disputed the proportion of law that the West Bengal Minor Minerals Rules, 1973 has been framed according to the rule-making power that has been given by the Central Act being the Mines and Minerals (Regulation and Development) Act, 1957. Mr. Chakraborty also contended that in case of a militancy or where the power has been given by the Central Act on the same subject the Central Act shall prevail and the State Act shall be ignored. That argument of Mr. Chakraborty need not be considered in this case because this case can be decided on some other points. The point that has been referred to by Mr. Chakraborty as has been indicated earlier regarding the two Acts, Central Act and the State Act, has no bearing on this case.
( 4 ) MR. Ramendra Nath Chakraborty, learned Advocate, appearing with Mrs. Alokananda Bhose, learned Advocate, on the other hand, contended on behalf of the State that apart from violation by the accused of the provision under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957, there is an allegation against the accused petitioner of stealing and a charge-sheet has been submitted against her under section 379 of the Indian Penal Code. Mr. R. Chakraborty did not dispute the contention of Mr. Asoke Chakraborty that taking cognizance by the learned Magistrate of the offence under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 is bad as a complaint has been filed not by an authorised person but he also contended that the order of taking cognizance by the learned Magistrate is legal so far it relates to the offence under section 379 of the Indian Penal Code.
( 5 ) HEARD the submissions of the learned Advocates for the parties and considered the materials on record.
( 6 ) THE learned Magistrate has taken cognizance of the offence on the basis of the charge-sheet as submitted by the Police under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 and section 379 of the Indian Penal Code. Cognizance can be taken under section 190 of the Code of Criminal Procedure, 1973. Cognizance is one and it cannot be divided. Splitting of cognizance is not permissible under the law. This is the admitted position that the complainant who lodged the complaint is not an authorised person to make such complaint. So taking cognizance on the basis of the complaint by the learned Magistrate for violation of the provision under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957 is bad. The only question that is left open is whether taking cognizance itself is bad or a partial cognizance can be taken ? In the peculiarity of the facts and circumstances of the case ; if the offence as alleged under Section 379 I. P. C. against the accused is dissociated from the allegation of excavation of earth without licence constituting an offence under section 21 (2) of the Mines and Minerals (Regulation and Development) Act, 1957, then there is no ingredient for an offence under section 379 I. P. C. against the accused. Even if it is assumed that there is such an ingredient then the order of taking cognizance is bad because cognizance is one and it cannot be made a split. If it is found that taking cognizance of an offence is bad the other part of the offence for which cognizance has been taken cannot be sustained in law.
( 7 ) I accordingly find that the complaint as has been lodged by a person not being authorised to do so cannot also be sustained in law. If the complaint goes the entire edifice on which the case stands also cramble down to earth. I accordingly quash the complaint on which the Bhatar P. S. Case No. 42 of 1993 dated 18th May, 1993 was started and so also the G. R. Case No. 664 of 1993 pending in the court of the learned Sub-Divisional Judicial Magistrate, Burdwan. The revisional application is accordingly allowed. Appeal allowed.