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Judgment
Rakesh Ranjan Prasad, J.—Learned counsel appearing for the petitioners submits that though cognizance of the offences punishable under Sections 379/ 411 of the Indian Penal Code has been taken but the allegation, upon which cognizance of the said offence has been taken comes within the ambit of penal provision of Section 4 of the M.M.R.D. Act a special legislation and therefore, prosecution under Sections 379/ 411 of the Indian Penal Code cannot be maintained. At the same time, the prosecution u/s 21 of the M.M.R.D. Act can also not be maintained for the reason that the prosecution had never been initiated by a person authorized by the State Government or the Central Government.
At the same time there has been no allegation whatsoever against the petitioners attracting offence u/s 17 of the C.L.A. Act and that the offence u/s 33 of the Indian Forest Act never gets attracted as it has never been the case of the prosecution that iron ore had been extracted from any protected forest.
At the same time, the offence u/s 42 of the Indian Forest Act never gets attracted as the iron ore which is being allegedly transported illegally will never fall within the definition of ''forest produce'' as has been defined u/s 2(4) of the Indian Forest Act.
However, learned counsel appearing for the State seeks four weeks'' time to file counter affidavit.
As prayed for, let this matter be listed after four weeks. Till then, further proceeding in Ghatsila P.S. Case no. 71 of 2008 (G.R. No. 239 of 2008), pending in the court of Additional Chief Judicial Magistrate, Ghatsila shall remain stayed so far the petitioners are concerned.