D.K.SINHA,J. - (1.) THIS Cr. Revision is directed against the order impugned dated 3-3-2009 passed by the S.D.J.M., Ghatsila by which the petition filed on behalf of the petitioners for their discharge for the alleged offence under Section 379 of the Indian Penal Code and Section 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004 arising out of Baharagora P.S. Case No. 61 of 2007 corresponding to G.R. No. 305 of 2007 was rejected and the petitioners were called upon to stand charged for the alleged offence. The prosecution story in short was that the informant Mines Inspector of District Mines Office, Jamshedpur alleged against the petitioners by filing a written report before the Baharagora Police that they were found indulged in illegal mining and thereby causing theft in the State exchequer and they had violated the Rules 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. It was requested to take legal action against them and others indulged in such illegal activities. The informant in the written report identified the places from where the respective petitioner was conducting illegal mining and the quantity of the minerals extracted by them was also given in the written report before the police.
(2.) LEARNED Counsel appearing on behalf of the petitioners submitted that the petitioner No. 1 Nagendra Nath Maity was the lease-holder of stone quarry situated in plot No. 1463/p, 1638/p for an area of 7.50 acres, at village Jharia within Ghatsila police station under a lease agreement with the Mining Department on payment of royalty and the lease was still valid. The Investigating Officer after investigation of the case submitted charge-sheet against the petitioners for the alleged offence under Section 379 of the Indian Penal Code as also under Rule 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. Accordingly, cognizance of the offence was taken for the alleged offence. Raising the point of law, Mr. Nanda learned Counsel submitted that the rules provide maintainability of only complaint against the alleged offence under Section 4 read with Section 54 of the Jharkhand Minor Mineral Concession Rules, 2004 but in the instant case, the F.I.R. was lodged and after investigation charge-sheet was submitted against the petitioners for the alleged offence under Section 379 of the Indian Penal Code as also under Section 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. Mr. Nanda further submitted that Section 379 of the Indian Penal Code being the general (penal) law cannot be attracted under the given facts and circumstances of the case on the face of the special law being the Jharkhand Minor Mineral Concession Rules, 2004 which contains penal provisions for the persons who contravenes the provisions of Rule 4 of Jharkhand Minor Mineral Concession Rules. It is well-settled that special law shall prevail over the general law. The special law has been defined as a law applicable to a particular subject. It can well be elaborated that where there was a specific punishment provided in a Special Act it takes precedence over the general punishment under the Penal Code and where no specific punishment is provided under special law, general law under the Penal Code prevails only to the extent of the punishment part.
(3.) ADVANCING his argument, learned Counsel Mr. Nanda submitted that no details of the plot or Khata number have been given in the written report presented by the Mines Inspector before the police from where the petitioners had been extracting minerals or were allegedly found doing illegal mining and that nothing much less any quantity of minerals were seized from the possession of any of the petitioners. The Investigating Officer purposely concealed that the petitioner was a bona fide lessee to whom the lease was granted by the appropriate Government for extracting stones from the defined area and it was not the allegation that he extracted beyond his lease hold limit. As regards petitioner Nos. 2 and 3 are concerned, the Counsel submits that they were not engaged in mining work rather they were the local business man having no concern with the mining work upon the area alleged by the informant in the written report. Even the Investigating Officer did not care to record the statements of the petitioner Nos. 2 and 3 to find out their explanation to the allegations. The learned Judicial Magistrate without appreciating these aspects rejected the discharge petition of the petitioners which cannot be sustained under law.;