Allowed

Dev Kumar Dubey v. The State Of Jharkhand

Jharkhand HC7 Apr 2022Cr.M.P./3108/2017

Case brief

AI extract

What is this about?

This petition seeks quashing of criminal proceedings and acknowledgement ordered in an FIR for violation of Jharkhand Minor Mineral Concession Rules, alleging violation. The court held that the offence was non-cognizable and the company, being the actual offender, was not made a party, leading to quashing of proceedings and authority. The petitioner, being a director, is not liable vicariously wit

What did the court decide?

Quashing of entire criminal proceeding and order taking cognizance dated 05.01.2017.

Dev Kumar Dubey Vs The State Of Jharkhand — Property and Title | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 3108 of 2017

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Dev Kumar Dubey ..... … Petitioner Versus The State of Jharkhand ..... … Opposite Party

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioner : Mr. Indrajit Sinha, Advocate. For the State : Mr. Arup Kumar Dey, A.P.P.

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07/ 07.04.2022 Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioner and Mr. Arup Kumar Dey, learned A.P.P. for the State.

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This criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding as well as the order taking cognizance dated 05.01.2017, whereby cognizance under Section 34(A)(i) of the Jharkhand Minor Concession Rules and under Section 32 of the Mining Rule has been taken against the petitioner, in connection with Ramgarh P.S. Case No. 27 of 2016 corresponding to G.R. No. 330 of 2016, pending in the court of learned Judicial Magistrate, 1^st Class, Dumka.

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The prosecution case in short is that on 17.03.2016, the informant, who is the District Mining Officer, Dumka along with the SubDivisional Magistrate, Dumka in course of spot verification detected that sand was being excavated from river bed by Poklen machine and on the sight of the time, the Polken machine was concealed in bush attached to river bed at Ramgarh Anchal which was seized and produced to police station and there is violation of the Rule 34(A)(i) of the Jharkhand Minor Mineral Concession Rules, 2014, hence directed to lodge FIR against the petitioner, who is Director of the Company namely Rural Development and Marketing Pvt. Ltd., under the aforesaid Rules and initiate a proceeding under Section 9 of the Jharkhand Mineral Dealer’s Rules, 2007 for confiscation of the seized Poklen machines.

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Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that although, an agreement has been entered into, but the petitioner has not started extracting the mines. He submits that some other person of that area, in which, the lease was granted to the petitioner has used the Poklen machine and the petitioner has been made accused in this case. He further submits that Rule 34(A)(i) of the Jharkhand Minor Mineral Concession Rules says that the mining activities shall be carried

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out with the approved mining plan / mining scheme. By way of referring Rule-54 of the said Rule, which is the penal provision, learned counsel submits that the punishment is prescribed for three months or fine of Rs. 5,000/- or both may be imposed. In view of Rule-54, he submits that this Rule is not cognizable and against that FIR cannot be allowed.

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Learned counsel appearing for the petitioner further refers to Schedule-II of the Cr.P.C., and submits that it has been disclosed therein that if the offence punishable with imprisonment for less than three years or with fine, no cognizance has to be taken. He submits that in the present case, the petitioner is the Director of the Company and the company is not made accused.

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To buttress his argument, he relied upon the judgment of the Hon’ble Supreme Court in the case of Sunil Bharti Mittal Versus Central Bureau of Investigation , reported in (2015) 4 SCC 609 , wherein the Hon’ble Supreme Court in Paras-42 to 44 held as follows:-

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“42. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

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43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

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44. When the company is the offendor, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada (supra), the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section

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141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction namely where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.”

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Relying on the aforesaid judgment, learned counsel appearing for the petitioner submits that this is a fit case to be allowed.

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On the other hand, Mr. Arup Kumar Dey, learned A.P.P. appearing for the State submits that the petitioner has entered into an agreement and in view of Clause-5 of the said agreement, the petitioner was required to do the work in terms of the Rules and other terms and conditions, but the same has been violated. So far as the argument of Mr. Indrajit Sinha, learned counsel appearing for the petitioner with regard to non-cognizable offence and the Company has not been made as party, learned A.P.P. has not been able to demolish the same.

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On perusal of the FIR, it appears that the allegations are with respect to violation of Rule-34(A)(i) of the Jharkhand Minor Mineral Concession Rules, 2014 and also Rule 34 of the Mining Rule and under Rule-54, the punishment has been prescribed for three month or fine of Rs. 5,000/- or both. Thus, it is crystal clear that the FIR was not required to be lodged, rather only the complaint can be filed in view of Schedule-2 of the Cr.P.C.

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The company has not been made party in this case and this aspect of the matter has been fully covered by the judgment of the Hon’ble Supreme Court in the case of Sunil Bharti Mittal (Supra) and herein also the case of the petitioner is fully covered in the light of the said judgment of the Hon’ble Supreme Court.

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Accordingly, the entire criminal proceeding as well as the order taking cognizance dated 05.01.2017, whereby cognizance under Section 34(A)(i) of the Jharkhand Minor Concession Rules and under Section 32 of the Mining Rule has been taken against the petitioner, in connection with Ramgarh P.S. Case No. 27 of 2016 corresponding to G.R.

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No. 330 of 2016, pending in the court of learned Judicial Magistrate, 1^st Class, Dumka, are hereby, quashed.

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This criminal miscellaneous petition is allowed and disposed

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of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Dev Kumar Dubey v. The State Of Jharkhand

Case brief

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Dev Kumar Dubey v. The State Of Jharkhand

Case brief

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