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2020 (8) TMI 943 - HC - Indian LawsConspiracy - illegal mining activities - cognizance of the offences under the MMDR Act and MCD Rules without the complaint being lodged by any competent authority as per the mandate in Section 22 of the MMDR Act and Schedule-I of the OMPTS Rules - HELD THAT - It is true that none of the petitioners have challenged or are questioning the power of Government to issue the Notification dated 14.01.2010 authorising Vigilance Police in that respect. Undisputedly the validity of notification dated 14.1.2010 is not questioned. The averments and submissions made on behalf of the petitioners are completely silent about the said Notification made in favour of the Vigilance Police. On the other hand, as seen from the Notification dated 14.01.2020 issued by the Government in Home Department and the Notification dated 19.12.2009 issued by the Steel and Mines Department, Government of Odisha, they are neither overlapping to each other nor the Notification dated 14.01.2010 is found in conflict with the provisions of the MMDR Act or the OMPTS Rules. A bare perusal of the notification dated 14.01.2010 clearly shows that it has given power to the Vigilance Police to investigate or lodge complaint for such offences under the MMDR Act and other relevant Acts/Rules. Therefore, in view of the specific authorization made in favour of the Vigilance Officials in that respect, the contentions of the petitioners cannot be accepted that the Dy. Superintendent of Police (Vigilance) is not authorized to file the complaint for the offences against the requirement of Section 22 of the MMDR Act. Therefore, the complaint at the instance of Vigilance Police and investigation conducted by them against the petitioners is maintainable. A further contention is made on behalf of the petitioner Jitendranath Patnaik that in absence of all legal heirs of the lessee Late Bansidhar Patnaik, the prosecution against him alone is not maintainable. This contention has no leg to stand because as per the allegation he is the only legal heir of late Bansidhar Patnaik, who applied for renewal by producing the forged WILL and is also the beneficiary of the ill-got minerals. When other legal heirs have not played any role in such illegal mining, they need not be brought into the sphere of prosecution because only being the legal heirs under the law will not attract any offence itself, without actus reus and mens rea. The CRLREVs are found devoid of any merit and accordingly all these Criminal Revisions stand dismissed.
Issues Involved
1. Legality of the cognizance taken by the court in the absence of a complaint by a competent authority under Section 22 of the MMDR Act. 2. Validity of the prosecution initiated by the Vigilance Police. 3. Applicability of Rule 7(2)(c) of the OCS (Pension) Rules, 1992 to retired government officials. 4. Maintainability of prosecution against a single legal heir without involving other legal heirs. Detailed Analysis 1. Legality of the Cognizance Taken by the Court The petitioners challenged the order dated 19.07.2019 by the Special Judge (Vigilance), Keonjhar, arguing that the court below failed to appreciate that, in the absence of a complaint presented by a competent authority, the order of cognizance is not sustainable. As per Section 22 of the MMDR Act, no court shall take cognizance of any offence under the Act except upon a complaint in writing made by a person authorized by the Government. The petitioners contended that the cognizance taken on the report of Vigilance Police is invalid. 2. Validity of the Prosecution Initiated by the Vigilance Police The petitioners argued that the Vigilance Police are not authorized to lodge complaints under the MMDR Act as per the OMPTS Rules. However, the court noted that the Government of Odisha, through notifications dated 19.12.2009 and 14.01.2010, had authorized Vigilance Officials to conduct investigations and take legal actions regarding illegal mining activities. The court held that the Vigilance Police were duly empowered to file complaints and conduct investigations, making the prosecution valid. 3. Applicability of Rule 7(2)(c) of the OCS (Pension) Rules, 1992 Petitioners Akshya Kumar Das and Nityananda Mohanty argued that judicial proceedings against them were not permissible as they had retired from service more than four years before the initiation of proceedings. The court rejected this argument, citing the Supreme Court's interpretation that Rule 7 of the OCS (Pension) Rules, 1992, applies only to the withholding or withdrawing of pensions and does not bar criminal prosecution. The court emphasized that the provisions of the Cr.P.C. have an overriding effect over the Pension Rules. 4. Maintainability of Prosecution Against a Single Legal Heir Petitioner Jitendranath Patnaik contended that the prosecution against him alone was not maintainable in the absence of all legal heirs of the lessee, Late Bansidhar Patnaik. The court dismissed this contention, stating that Jitendranath Patnaik was the only legal heir who applied for the renewal of the lease using a forged WILL and benefited from the illegal mining activities. The court held that other legal heirs, who did not play any role in the illegal mining, need not be prosecuted. Conclusion The court dismissed all the Criminal Revisions, finding no merit in the petitioners' arguments. The court upheld the validity of the cognizance taken by the Special Judge (Vigilance), Keonjhar, and the prosecution initiated by the Vigilance Police. The court also rejected the applicability of Rule 7(2)(c) of the OCS (Pension) Rules, 1992, to bar criminal prosecution and maintained the prosecution against Jitendranath Patnaik alone. No order as to costs was made.
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