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Judgment
Dipankar Datta, J.—By an indenture dated July 9, 1998, the first petitioner was granted mining lease in respect of the tract of lands mentioned in Part - I thereof, to remain operative for a period of 5 (five) years i.e. till July 8, 2003. The second petitioner, who happens to be the brother of the first petitioner, was appointed by him as his constituted attorney to look after the work of mining lease. In pursuance of the mining lease, possession of the land mentioned in Part - I was made over to the first petitioner on December, 1998 and since then the petitioners started exploiting the area by extracting stone upon due payment of royalty to the Government as per the rate fixed by it.
Before expiry of the validity of the said lease, the first petitioner had filed an application for renewal on April 3, 2003. On April 8, 2003, the first petitioner wrote to the District Land and Land Reforms Officer, Bankura (hereafter the D.L.L.R.O.) and informed him of inadvertent excess payment of royalty and prayed for adjustment. In response to the application dated April 3, 2003 of the first petitioner, he was informed by the Assistant Secretary to the Government of West Bengal, Commerce and Industries Department by his letter dated July 31, 2003 that such application would be considered upon the petitioner complying with the terms and conditions mentioned therein. Upon receipt thereof, the first petitioner duly presented the original mining lease for endorsement of renewal. However, to his dismay, the first petitioner received a letter dated August 13, 2003, issued by the Sub-Divisional Land and Land Reforms Officer, Khatra (hereafter the S.D.L.L.R.O.), whereby the first petitioner was directed to make payment of Rs. 1,58,146/- being the outstanding royalty and cess with interest for extraction of 1,75,500 cft. of stone for the period between April 1, 2003 and July 8, 2003 together with other charges. The first petitioner immediately objected to the same by a letter dated August 25, 2003 addressed to the S.D.L.L.R.O. and while informing him of payment of excess royalty for extraction of stone, requested him to disclose the basis of his computation of such figure of Rs. 1,58,146/-. Although the first petitioner claimed to have extracted 15,04,400 cft. of stone upto December 31, 2002, royalty was stated to have been deposited for extraction of 15,29,550 cft. of stone, inadvertently. Accordingly, the first petitioner prayed for verification of records and for adjustment of payment of excess royalty for 25,150 cft. of stone with the royalty payable for the period January 1, 2003 to March 31, 2003. The prayers dated April 8, 2003 and August 25, 2003 were not considered by the D.L.L.R.O. and the S.D.L.L.R.O. In fact, they did not reply to the first petitioner as to whether any adjustment could be made or not; instead, a written complaint was lodged by the S.D.L.L.R.O. with the Officer-in-Charge, Indpur Police Station resulting in registration of Indpur P.S. FIR No. 32/2003, dated November 6, 2003, under sections 379, Indian Penal Code and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter the 1957 Act) read with Rules 18, 30 and 33 of the West Bengal Minor Minerals Rules, 1973, as amended (hereafter the 1973 Rules). Upon registration of such FIR, the first petitioner was arrested on November 7, 2003 and produced before the Sub-Divisional Judicial Magistrate, Khatra. The said magistrate passed an order on November 8, 2003, directing release of the first petitioner on bail.
In this writ petition dated December 1, 2003, the petitioners have questioned registration of the said FIR for realization of alleged unpaid royalty and have accordingly prayed for the following relief:
"(a) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to rescind, cancel and/or withdraw the purported complaint dated 06.11.2003 filed by the SDLRO, Khatra against the Petitioners for non-payment of royalties for the financial year 2003-2004;
(b) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to show cause as to why the purported criminal case being GR No. 265/2003 arising out of Indpur P.S. Case No. 32/2003 dated 06.11.2003 u/s. 379 of the Indian Penal Code with Section 21 of the Mines and Minerals (Regulation and Development) Act 1957 read with Rules 18, 30 and 33 of the West Bengal Minor and Minerals Rules, 1973 should not be quashed;
(c) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to show cause as to why the criminal case being Indpur P.S. Case No. 32/2003 dated 06.11.2003 (GR Case No. 265/2003) initiated against the petitioners u/s. 379 of the Indian Penal Code and Section 21 of MMRD Act on the basis of the complaint lodged by the SDLRO, Khatra on 06.11.2003 for non-payment of royalties for the financial year 2003-2004 in spite of validity of the lease granted by the Govt. of West Bengal for extraction of stone in favour of the Petitioner No. 1 should not be set aside and/or quashed and declared invalid and/or inoperative;
(d) A writ of and/or in the nature of Certiorari be issued commanding the respondents, their men, agents, servants and subordinates to transmit the entire records of this case being Indpur P.S. Case No. 32/2003 dated 06.11.2003 including the purported complaint filed by SDLRO, Khatra on 06.11.2003 and other relevant records of this case after certifying those to this Hon''ble Court, so that consenciable justice may be administered by quashing the criminal case being GR Case No. 265 of 2003 arising out of Indpur P.S. Case No. 32/2003 dated 06.11.2003 as well as quashing of a purported complaint lodged by SDLRO on 06.11.2003 before Indpur Police Station and the initiation of proceedings by the Indpur Police Station in P.S. Case No. 32/2003 dated 06.11.2003; ***"
Since the FIR registered on the written complaint of the S.D.L.L.R.O. is under challenge, it would be convenient to set out the same in its entirety.
"To
The Officer-in-Charge, Indpur Police Station.
Sub: FIR against:- 1. Sri Aditya Kumar Ghosh, s/o .... 2. Sri Dilip Kumar Ghosh, s/o .... all of ....
On account of defaulting of payment of Government Revenue (Royalty & Cesses on Minor Minerals) for a Mining Lease for ''STONE''
Ref: This office''s Memo No. .... dt. 13.8.03
In view of the discussion held in the meeting in the Collectorate Conference Hall Bankura on 29.11.03, the District Magistrate, Bankura and the Additional District Magistrate & District Land & Land Reforms Officer, Bankura kindly expressed their views on the need of upliftment of Royalty & Cess on Minor Minerals for the year 2003-2004 and to take all out effort against the Royalty evaders within the ambit of the West Bengal Minor Minerals Rules 1973 and Mines & Minerals (Regulation & Development) Act 1957 read with the provision of Indian Penal Code vice versa.
Therefore, it is considered expedient (sic) to lodge First Information Report against the following leasee (sic) who have failed to deposit Government Revenue to the tune of more than a lack of rupees despite repeated reminders and the commitment of payment by the lessee for severals (sic) times. This has badly affected Government exchequer.
The details are summarized (sic) hereunder:
Therefore, aforesaid lease holder and his associate have committed an offence punishable u/s 21 (Sub Sec. 1 to 5) of the Mines & Minerals (Regulation and Development) Act 1957 read with Rules 18, 30 and 33 (Amended Rule) of the West Bengal Minor Mineral Rules, 1973 on account of violation of the provision laid down in the indenture of Mining lease with special attention Part IX of the indenture of lease for non payment of Royalty dead rent etc. for a longer period without any attention to the reminders, issued by the Sub Divisional Land & Land Reforms Officer, Khatra, having delegated powers as per clause - 9 of schedule III of West Bengal Minor Mineral Rules 1973 and as such Sri Aditya Kumar Ghosh and Sri Dilip Kumar Ghosh have unauthorisedly used the challans and used the usufructs (sic) of the sale proceeds of stone/ballast within Indpur Police Station evading Government Revenues to the tune of Rs. 1,42,786/- (one lac forty two thousand Seven hundred eighty six rupees only) and defaulting in payment of the same may also be treated as commitment of an offence punishable u/s 379 IPC.
There is possibility of continuing contravention in the Financial year 2003-2004 by the lessee, recoursed (sic) to the result of loss of good quantum of Government Revenues in future.
This FIR is lodged without prejudice to any other mode of recovery authorised by provision of the lease or by any law, all amounts failing (sic) due against the lessee may be recovered as Public demand under the Bengal Public Demand Recovery Act or any statutory modification there of for the time being in force from the office of the undersigned according to exigency of the matter.
Sd/- Illegible. Sub Divisional Land & Land Reforms Officer, Khatra District Bankura.
Enclo: 47 (Forty seven sheets)."
Mr. Das, learned advocate representing the petitioners argued that the S.D.L.L.R.O. committed gross illegality in seeking to realize unpaid royalty, if any, from the petitioners by taking recourse to criminal prosecution. According to him, registration of the FIR is nothing but an arm-twisting tactic resorted to by the S.D.L.L.R.O. and is bad on two grounds: (i) a specific procedure has been laid down by law for recovery of unpaid royalty and such procedure should have been followed; and (iii) the power of the Government to invoke the Bengal Public Demands Recovery Act, 1913 for recovery of unpaid royalty is traceable in the indenture of mining lease and the parties being bound by the terms and conditions of such mining lease, taking recourse to the criminal law is in excess of jurisdiction and cannot be countenanced. Clause (5) under Part VI and clause (8) under Part IX of the mining lease were referred to in this context.
It was also urged by Mr. Das that although in terms of the mining lease the Government had the right to enter into the land, the FIR even if it is accepted to be correct on face value does not make out any offence punishable under any relevant provision of law. Inviting the attention of this Bench to various provisions of the 1957 Act as well as the rules framed thereunder, it was sought to be contended that the petitioners had not committed any offence for which they could be punished with imprisonment or fine, or both. Accordingly, it was prayed that the FIR be quashed.
The writ petition was opposed by Mr. Gupta, learned Additional Advocate General representing the State. Referring to the terms and conditions of the mining lease, it was submitted by him that extraction of stone from the land in question was permitted by the Government to be undertaken by the first petitioner upon strict terms of payment of royalty and other charges as and when the same would fall due. In other words, the first petitioner was entitled to extract stone only upon payment of royalty and other charges as agreed by and between the parties. Inviting the attention of the Bench to the letter dated August 25, 2003 of the first petitioner addressed to the S.D.L.L.R.O. referred to above, Mr. Gupta submitted that the first petitioner admitted the liability to pay royalty for 1,24,450 cft. of stone i.e. Rs. 1,02,047/- while contesting the demand of Rs. 1,58,000/- and also assured payment of the entire dues by the first week of September, 2003. However, admittedly, the first petitioner did not make any payment. There is an allegation in the complaint lodged by the S.D.L.L.R.O. to the effect that the petitioner had extracted stone without making payment of royalty and removal of minerals without payment of royalty to the Government, according to Mr. Gupta, is theft. Even if it is assumed that the first petitioner did not commit any offence which is punishable in terms of the 1957 Act and the rules framed thereunder, prima facie section 379, IPC is attracted and it was submitted that upon vacation of the interim order of injunction passed by a coordinate Bench on December 5, 2003, the investigation ought to be allowed to progress and the investigating officer granted liberty to take such investigation to its logical conclusion in accordance with law.
Mr. Gupta also urged that on a plain reading of the written complaint, commission of an offence is indeed made out and, therefore, the principles that a writ court bears in mind while adjudicating upon the propriety and/or legality of an FIR being registered would not apply in the present case. He, accordingly, prayed for dismissal of the writ petition.
In reply, Mr. Das reiterated his earlier submissions and in addition urged that there has been no illegal extraction of stone by the petitioner and that indication of the time period between August 5, 1998 and July 8, 2003 as the one during which offence had been committed is an act of abuse of power by the police.
This Bench has heard learned advocates for the parties at some length.
Section 21 of the 1957 Act provides for "Penalties". Sub-sections (1) and (2) thereof specify the contravention [contravention of sub-section (1) or sub-section (1A) of section 4 of the 1957 Act or contravention of such nature as may be provided by rules framed under the 1957 Act] that would attract imprisonment or fine, or both.
Section 4 of the 1957 Act, to the extent relevant, is set out hereunder:
"4. Prospecting or mining operations to be under licence or lease.-- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement:
Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of Section 617 of the Companies Act, 1956:
Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.]
(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.
****"
The 1973 Rules stood repealed by the West Bengal Minor Minerals Rules, 2002 (hereafter the 2002 Rules), which came into operation from November 8, 2002. On the date of registration of FIR against the petitioners, it is the 2002 Rules that were in force and not the 1973 Rules. Rule 33 of the 2002 Rules also provides for "Penalty". Sub-rule (1) thereof provides that any person extracting any minor mineral without a proper lease or permit granted thereunder or in contravention of the provisions of rule 35 shall be punishable with imprisonment or fine, or both.
Having read such statutory provisions and bearing in mind the facts that (i) the first petitioner extracted stone till July 8, 2003 on the basis of the mining lease and (ii) there is no allegation that he went on extracting stone beyond July 8, 2003 without renewal of the mining lease being effected, there can be no doubt that none of the provisions of the 1957 Act and the 2002 Rules appears to have been breached by the petitioners so as to call for launching of criminal prosecution against them either under section 21 or rule 33 in the light of the allegations levelled by the S.D.L.L.R.O. in the written complaint,.
Rules 18 and 30 were also referred to in the FIR but having read the same, they do not appear to have any relevance here.
What remains for consideration is registration of the FIR under section 379, IPC, which indeed calls for attention.
Section 378, IPC defines theft. It reads as follows:
"Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person''s consent, moves that property in order to such taking, is said to commit theft."
Section 378 has five ''Explanations'' of which the first three read as follows:
"Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it."
An act to be regarded as theft under section 378, IPC must necessarily involve (i) dishonest taking of any moveable property out of the possession of any person, (ii) without that person''s consent, and (iii) moving that property in order to such taking. To put it differently, the offence of theft consists of dishonest taking of any movable property out of the possession of another without his consent.
Having regard to the aforesaid terms of section 378 and the nature of complaint that was lodged by the S.D.L.L.R.O. to the effect that the first petitioner had removed minerals belonging to the Government without payment of royalty of Rs. 1,42,786/-, to nail the accused petitioners the investigator (should the writ petition be dismissed and investigation allowed to resume) would be required to collect materials to draw up a charge-sheet that such removal was with dishonest intention and without the Government''s consent; if at all upon trial the charge is established, the appropriate Court would be free to impose adequate punishment. However, a challenge having been laid that the allegations do not make out any offence of theft, the question that now arises for an answer is whether or not, on facts and in the circumstances, an FIR could be registered against the petitioners under section 379, IPC.
It is settled law that an FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty. Although an FIR need not be an encyclopaedia of the prosecution case, the contents thereof with reasonable degree of clarity ought to point to the nature of criminal activity of the accused deserving investigation by the law enforcing agency for bringing him to book.
It appears that the petitioners have been primarily accused of failing and neglecting to pay royalty to the tune of Rs. 1,42,786/- despite several demands and reminders having been issued by the S.D.L.L.R.O. That Rs. 1,02,047/- was due and payable by the first petitioner at least on August 25, 2003 is his admitted case and his failure to pay culminated in the written complaint being lodged before the police. However, it is noted that the FIR does not even hint at extraction of stone by the petitioners beyond July 8, 2003 i.e. the date of expiry of the mining lease. Significantly, the occurrence of offence has been shown in the complaint during the period August 5, 1998 to July 8, 2003. Doubtless, the FIR relates to nonpayment of royalty for extraction of stone during a time period when the mining lease was subsisting. Extraction of stone on the authority of a valid and subsisting mining lease can by no stretch of imagination be equated with mining activity without a licence/lease/permit and, therefore, the former cannot be branded as an act without the consent of the Government. True it is, the petitioners were permitted to extract stone on payment of royalty but a ''condition'' for extraction should not be confused with ''consent'' to extract. The ''consent'' here is the lease, having several conditions which the first petitioner was obliged to adhere while extracting stone. The lease also provided how breach of any condition by the lessee i.e. the first petitioner is to be dealt with. An alleged breach of a condition of consent does not render the consent itself non-est. The lease could have been terminated before the date of its expiry and that would have resulted in revocation of the consent. Admittedly, that was not done. In view of the subsisting mining lease which connotes consent of the Government, the offence of theft is not complete. To allege that extraction of stone till July 8, 2003 albeit on the basis of the mining lease without payment of royalty is theft, is unacceptable.
On facts and in the circumstances, it is difficult to hold that all the ingredients necessary to constitute theft forming part of section 378, IPC are present and that an FIR could have been registered under section 379, IPC which lays down punishment for theft. On the contrary, a claim arising out of non-payment of royalty, which is a civil liability, has been given the colour of criminal liability. Law is well settled that criminal liability ought not to be foisted in respect of disputes, which are civil in nature.
This Bench, therefore, holds that the FIR (contents accepted to be true on face value) does not disclose commission of offence punishable under section 379, IPC or under section 21 of the 1957 Act read with rule 33 of the 2002 Rules. The FIR impugned in this writ petition is quashed.
The writ petition is allowed. Since the first petitioner was unnecessarily put behind bars, albeit for a short span of time, his personal liberty has been affected without adhering to procedure established by law. He shall, accordingly, be entitled to costs of this proceeding assessed at Rs. 20,000/-, which is allowed to be adjusted with the dues on account of unpaid royalty.
This order shall, however, not preclude the respondents to recover unpaid royalty from the petitioners in accordance with law.
Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.