Krishna Nand Singh vs The State of Bihar and Another

P.K. Deb, J.—This petition has been filed against the order dated 4.4.2000 passed by the S.D.J.M., Lakhisarai in Complaint Case No. 5C2/1997 whereby and where under the Petitioner filed by the Petitioner u/s 245(1) of the Code of Criminal Procedure has been rejected.

While issuing notice to the Opposite party No. 2, the complainant, by the order dated 6.2.2001 a Bench of this Court has stayed the further proceedings of the case and also asked the Petitioner to file supplementary affidavit annexing the copy of the petition filed before the court below u/s 245 of the Code of Criminal Procedure. The same has been complied with.

The Petitioner along with another had been made accused in the complaint petition filed by the opposite party No. 2, who happened to be the Deputy Director of Mines, Bhagalpur Division, Bhagalpur bringing allegation. The Petitioner being the Chairman-cum-Managing Director of I.D.I.O. Construction & Industries and the accused No. 2 being one of the Directors of the Company were responsibe for the management of the said Company but they acted in violation of the provisions of Mines and Minerals (Regulation & Development) Act, 1957 and also under the Minor Minerals Concession Rules, 1972 and as such they are liable for being proceeded under the penal provisions under those Acts and also under the provisions of the Indian Penal Code. The said Company was a lessee under the Act. As per the complaint petition, the Petitioner bad taken over possession of Plot Nos. 2604 and 2605 of Mauza Bishanpur within the District of Lakhisarai but started illegal mining over the said plots and in order to obtain the lease the Petitioner had arrayed Plot No. 2626 of the same Mauza in the record with dishonest and illegal intention and the map was forged done and illegal and wrong affidavits were sworn before the appropriate authority committing cheating. The period of lease was in respect of Plot Nos. 2605 and 2625 for nine years from 20.2.1980 to 29.6.1989 for stone mining and after the period was over and the renewal application of lease was rejected by the Collector, Monghyr, the Petitioner moved in revision before the Mines Commissioner which was ultimately withdrawn but the accused persons, as have been stated, indulged in illegal mining even though their renewal petition was rejected. They also did not pay the dues as required under the Rules. It was further stated that by such illegal mining by violating the requirements of Rule 23(1) of the Rules, the Petitioner has extracted mining materials to the loss to the Government of Bihar exchequer to the tune of Rupees Two lacs Twenty Five Thousand. On the statement of the complainant on solemn affirmation and other three witnesses being examined cognizance was taken under Sections 420/417 of the Indian Penal Code read with Sections 468/465 of the Indian Penal Code together with other violative provisions under the Acts as mentioned above. There was also added penal Sections being Section 120B read with Section 177(8)/171 of the Indian Penal Code and such cognizance was taken on 1.2.1997. The main allegation was that in the initial application Plot No. 2626 was not there but the same was subsequently being added with a view to making a chunk and when the application of the Petitioner was not considered regarding renewal etc. then the Petitioner had filed a writ petition being C.W.J.C. No. 1288 of 1995 before this Court. The Petitioner was directed to file revision petition before the Government of India, if so advised and a Civil Review was filed by the Petitioner which had also been disposed of by giving direction to the authorities to take decision in the matter of renewal etc. But the Company''s Petition was rejected by the authorities and then the Petitioner again filed C.W.J.C. No. 10667 of 1996 before this Court and the Court vide the order dated 17.3.1997 quashed the order of rejection and the matter was remanded back for reconsideration and it was also held that the Petitioner should be given an opportunity of hearing. The State Government moved in L.P.A. but the same was also dismissed. Then a Contempt Petition was filed by the Petitioner being M.J.C. No. 1667 of 1998 but as there was already alternative remedy available, such Contempt Petition was not entertained. Again the Petitioner''s petition was rejected and the Petitioner then moved before the Tribunal and the Tribunal had set aside the order of rejection. Then after reconsideration of the entire matter, the Secretary, Mines Department recommended for grant of lease to the Petitioner and the matter was placed before the Cabinet for approval and such matter was placed before the Government for approval long back in the year 1990 itself but because of the Government being busy otherwise in election matters and others, ultimately leas was granted in favour of the petitioned company; a copy of which has been sworn before this Court and the sarna had been registered by the Collector fell and on behalf of the Government in time month of August, 2001. Practically after this there remained little scope for proceeding with the criminal case as it has been submitted that in the earlier writ petition, the authority to whom the application was submitted had sworn an affidavit to the effect that the application of Petitioner had contained three plots eluding Plot No. 2626 by forging the application itself goes away on the face of it. I is also found that certificate proceeding going on against the Petitioner and the period for which certificate case was ere for the dues had included the period which illegal mining has been urged which also gives a dead-set to the complaint case itself when such statement Jed been made by the witnesses during fie course of enquiry u/s 202 of the Code of Criminal Procedure. In the complaint petition, it was mentioned that the labour Inspector had given a notice the Petitioner''s company regarding impleadment of 17 persons as labourers during the period to substantiate the fact that illegal mining was being done. The statements of the witnesses are contradictory regarding the illegal mines ring the period for which offences have alleged. The Petitioner was from the beginning taking the plea that the Die allegations etc. are in the nature of litigation and practically the matter already been fought in writ petitions various stages and when there was an attempt by the authority regarding the application being made in respect of three the whole basis of the case had shattered as cushion of cart, Moreover, when already the high officials the Government level had granted in favour of the Petitioner then the whole intermediary allegation and after-allegations had been blown off in that way the discharge petition moved stating oral affidavit before the court below but the impugned order is a cryptic one without considering the materials as stated from the side of the Petitioner but only denied on the statements being given by the witnesses before the court below during the course of enquiry u/s 202 of the Code of Criminal Procedure.

The question comes in as to whether the court can look into the subsequent events and the developments for the purpose of proceeding with criminal case or not. Practically as I have stated earlier the allegations made have already been subsided by the grant of lease in favour of Petitioner''s Company as they prayed for. It has been argued for and on behalf of the Petitioner that even after such lease being granted and on acceptance of the Petitioner''s case by the high officials of the Government, then there remains no scope to proceed with the criminal case, which would be nothing but an abuse of the process of the court be, cause after such lease being granted even if there were any lapses from the side of the Petitioner, those have been contained on the face of it. But it has been strenuously argued by the learned Counsel appearing for and on behalf of the opposite party No. 2 by referring to the case of the parties that even if in a case for defalcation the amount is being realised from the official then also the offence remains as alleged at least for temporary defalcation, but I do not find that that analogy is applicable in the present case. The moot point was that by commission of forgery a plot No. has been included in the application and also in the map from the side of the Petitioner by indulging in . conspiracy and then illegal mining committed. Although the rejection of the Petitioner''s application was three by the department time and again but ultimately the Petitioner succeeded and in an affidavit the superior officers had already made admission that all the three plots were included in the original application of the Petitioner. Thus the very basis of the case had gone away.

By referring to various judgments, learned Counsel for the Opposite Parties submitted that even if there is strong suspicion regarding involvement of the Petitioner with the crime then also the discharge should not be granted rather charge should be framed for dragging into trial. In this respect, the judgment of the Apex Court as reported in State of Bihar Vs. Ramesh Singh, and Union of India (UOI) Vs. Prafulla Kumar Samal and Another, have been referred to. In those cases also the Apex Court has observed that there cannot be any golden escape or strait jacket formula regarding discharge or charge being framed. It would always depend upon the circumstances of each particular case. It was held that even if from the circumstances it appears that there is strong suspicion against the accused persons being involved with the crime then there should be charge benign framed without consideration whether such charges, if framed, would result in conviction or not. But always it has been made clear that there should be strong suspicion but a mere suspicion cannot be the basis of proceeding with a criminal case as it has become the settled principle of law since the judgments being passed by the Privy Council long back. Here the question of strong suspicion does not arise. Even the suspicion at that stage of filing of criminal case might have been there but because of the developments and that superior officers'' admission in favour of the accused persons'' case by filing affidavit in another case which had been brought to the notice of the Government then that suspicion also becomes bleak. I find in the present case practically proceeding with the criminal case would be nothing but an abuse of the process of the court and would unnecessarily being taken away the time and energy of the criminal court and also to the harassment of the accused persons. Regarding subsequent events, even> it must be stated that such events which directly hit the prosecution case can be taken into consideration for the purpose of discharge also. In that way I hold and find that in the circumstances the learned court below had committed error in not granting discharge in favour of the Petitioner. The petition is hereby allowed and the impugned order passed by the learned court below is hereby set aside and the whole criminal proceedings against the Petitioner in the above mentioned Complaint Case No. 5C2/1987 is hereby quashed.