D .N.UPADHYAY,J - (1.) Present criminal writ application has been filed for quashing of the entire criminal prosecution initiated against the petitioners arising out of Jorapokhar P.S. Case No. 136/1998 [G.R. Case No. 2184/1998] and the order dated 23.09.2008, passed by Shri V.K. Tiwari, Judicial Magistrate, Dhanbad and also the Order dated 02.05.2009, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 304/2008 whereby the Order dated 23.09.2008, passed by Shri V.K. Tiwari, Judicial Magistrate, Dhanbad was affirmed.
(2.) THE facts of the prosecution case is that on 19.06.2008, in the afternoon between 12:25 to 12:30, two Dumper bearing Registration No. BR 17 -G 7934 and BHG 8585, loaded with sand were seized by the informant. The Challans produced by the drivers against transportation of sand were considered forged and fabricated for the reasons assigned in the written report. Since the vehicles were carrying sand on the basis of forged and fabricated documents, the informant who happened to be the District Mining Officer, Dhanbad, lodged a written report at Sudamdih P.S. Dhanbad, on the basis of which Jora Pokhar P.S. Case No. 136/1998 was registered against the contractor under whose control the aforesaid vehicles were plying. It is submitted that the contention made in the written report, if taken to be true, offence punishable under Rule 40 or the offences punishable under Bihar (Jharkhand) Minor Mineral Concession Rules, 1972 shall be applicable. It is further pointed out that for the offence committed under the provisions of Bihar (Jharkhand) Minor Mineral Concession Rules, 1972, no Court shall proceed on the Police report. Section 22 of the Mines and Mineral (Development and Regulation) Act, 1957 clearly indicates that no court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. Where special law is applicable, general law like Indian Penal Code shall not be made applicable. Learned counsel has submitted that after receiving report under Section 173 of Cr.P.C., learned Magistrate had taken cognizance and proceeded with the trial. The petitioners had raised this point at the time of framing of the charge but it was not considered and the prayer was rejected vide Order dated 23.09.2008. When the petitioners preferred Criminal Revision before the learned Sessions Judge, challenging the said order vide Criminal Revision No. 304/2008, the Revision Application was dismissed vide order dated 02.05.2009. The continuance of such criminal prosecution is required to come to an end because it amounts an abuse of process of Court and, therefore, the prayer made in this writ application may be allowed and the entire criminal prosecution of the petitioner and the subsequent orders may be quashed. Learned counsel has relied in the case of Manish Khemka Vs. State of Jharkhand and others reported in 2009(2) East Cr. C. 535 (Jhr.) and in the case of Ajay Krishna Tiwary Vs. State of Jharkhand reported in 2006(3) East Cr. C. 50 (Jhr.) and submitted that the prosecution of accused on the basis of information given to Police and not on the basis of a complaint before the Magistrate is illegal and liable to be quashed.
(3.) LEARNED counsel appearing for the respondents - State has opposed the arguments and pointed out that earlier writ application preferred vide Criminal Misc. No. 5159 of 1998 (R) for quashing of the F.I.R. and the entire criminal prosecution of the petitioners was dismissed vide order dated 21.07.1998. The petitioners have formed habit of filing petitions under different provisions of law before different forum with an intent to delay the trial and to some extent they have succeeded because the case was instituted in the year 1998 but the trial has not yet been concluded because of filing of such petitions. There is no merit in this writ petition and the same is, therefore, liable to be dismissed.;