Ram Adhar And Ors. vs State Of Uttar Pradesh And Ors. on 13 August, 1998

Allahabad High Court
Ram Adhar And Ors. vs State Of Uttar Pradesh And Ors. on 13 August, 1998
Equivalent citations: 1999 CriLJ 285
Author: K Shahi
Bench: G Mathur, K Shahi


K.D. Shahi, J.

1. This petition under Article 226 of the Constitution has been filed praying that the F.I.R. of Case Crime No. 76 of 1988 be quashed and the loader machines which have been seized may be returned to the petitioners.

2. The record shows that the Incharge Officer (Mines) Fatehpur received information that some persons were carrying on illegal mining of sand from Oti area on the bank of river Yamuna. Sri Sarvesh Chandra Misra, Addl. District Magistrate, Fatehpur (Officer-incharge, Mines) along with Sri G.N. Tripathi S.D. M. Sadar, Circle Officer of Bindaki, Circle Officer of Hathgaon, Inspector of P.S.. Bindaki along with eight other Station Officers and some police personnel conducted a surprise inspection of mining area in Oti. They found two loader machines in plot No. 64 out of which one was engaged in mining operation and one loader machine in plot No. 59 which was also engaged in excavating sand. Naresh Gautam and Vijay Kumar, who were op-crating the loader machines, informed the inspecting party that the same had been sent by Karvaria and Sulakhi Yadav of Allahabad and the rent of each machine was Rs. Twelve thousand per day. Lessees of Plot Nos. 59 and 64 were not present. On further search one Spring field Rifle, one 12 bore D.B.B.L. gun and one S.B.B.L. gun along with cartridges were found in a hut at that place. A recovery memo was prepared on the basis of which a case was registered at the concerned Police Station.

3. The case of the petitioners is that one Smt. Sumitra Devi wife of Ram Chandra had been given lease of plot No. 64 to carry on mining operation for a period of three years by the order of the District Magistrate, Fatehpur, dated 2-1-1998. She had deposited the premium and a lease had been executed in her favour. Smt. Sumitra Devi had entered into an agreement with M/s. Sharma Associates, Ashok Vihar, New Delhi, on 12-5-1998 to load sand in trucks and tractors. The loader machines belong to Ram Adhar Nishad. According to the petitioners, the sand was being excavated by Smt. Sumitra Devi who had authorised M/s. Sharma Associates to do the loading work. According to the petitioners the F.I.R. discloses commission of no offence and therefore, the same is liable to be quashed. The petitioners further submit that as no offence has been committed, the seizure of the loader machines is illegal.

4. A counter affidavit has been filed by Rajendra Singh, I.O. of the case where the case of the petitioner has been completely denied. It is stated therein that Statement of Smt. Sumitra Devi was recorded under Section 161, Cr.P.C. wherein she has stated that though the lease of plot No. 64 had been executed in her favour but actual mining operation was being carried on by Kapil Karvaria of Allahabad and it is his men who were excavating the sand. A copy of her statement under Section 161, Cr.P.C. has been filed as Annexure 1 to the counter-affidavit. Therein she has stated that Kapil Karvaria gave her Rs. One lakh and threatened her not do any mining operation and further told her that the excavation of sand will be done by him and she should keep quiet. Me further threatened her that in case anybody makes inquiry, she should say that she is herself getting the mining operation done. She was also threatened that in case she raised voice, she would be killed and she should remain inside her house. In her statement she has expressed threat to her life from the side of Kapil Karvaria.

5. Another counter-affidavit has been filed by Sri Shiv Lal, Addl. Sub Divisional Officer Fatehpur wherein the case of the petitioner has been denied. It is further averred therein that the agreement alleged to have been executed by Smt. Sumitra Devi, copy of which has been filed as Annexures 6 and 7 to the writ petition is in fact a forged and ante-dated document. The agreement was in fact sworn before a Notary in Allahabad on 12-6-1998 after the F.I.R. had been lodged but subsequently the date has been changed to 12-5-1998. It is further asserted in the affidavit that some others were forcibly carrying on the mining operation and excavating sand and the same was not being done at the instance of Smt. Sumitra Devi.

6. We have heard Sri D.S. Misra for the petitioner, Sri Arvind Tripathi for the State and have examined the record. The sheet anchor of the petitioners appears to be the agreement which is alleged to have been executed by Smt. Sumitra Devi in favour of M/s. Sharma Associates, Ashok Vihar New Delhi. In paras 11 and 22 of the counter-affidavit of Sri Shiv Lal it is stated that an inquiry was made by Sri S.N. Srivastava, Addl. District Magistrate, Allahabad and the relevant register of Sri Raj Narain Tripathi, Advocate Notary Civil Court, Allahabad was examined. On inquiry, it was revealed that the affidavit was sworn on 12-6-1998 and an. entry thereof has been made at Sl. No. 125 on page No. 297 of the register. This agreement does not find place amongst the documents sworn on 12-5-1998. A copy of the letter sent by Sri S. N. Srivastava to District Magistrate, Fatehpur on 22-6-1998 has been filed as Annexure C-A. to the counter-affidavit. We have also looked into the photo copy of the agreement and this clearly shows that the date ’12-6-1998′ was subsequently changed to ’12-5-1998′. The figure “6” has been changed to figure “5” at one place on the first page and at three places on the second page. The overwriting is clearly visible. If the agreement had really been sworn before the Notary on 12-5-1998, an entry to that effect would have been made in the register on that date. However, it has been entered in the register of the Notary on 12-6-1998. It is also not understandable as to why Smt, Sumitra Devi who is resident of district Fatehpur got the affidavit sworn before a Notary in district Allahabad. All these facts show that the agreement relied upon by the petitioners is not genuine.

7. According to the statement of Smt. Sumitra Devi as recorded under Section 161, Cr.P.C. she was not carrying any mining operation. On the contrary the same was being done by Kapil Karvaria Maharaj of Allahabad, who has paid her some money and has threatened her to keep quiet otherwise she would be killed. Thus according to her statement, it is some other people who were excavating sand from plot No. 64 after giving her threat of life. The version of She petitioner is completely denied by the respondent. Unless this question of fact which is a highly disputed one is decided after taking oral and documentary evidence, no finding can be recorded in favour of the petitioners. If the version of Smt. Sumitra Devi is believed, the F.I.R. discloses commission of a cognizable offence.

8. U.P. Minor Minerals (Concession) Rules provide for grant of mining lease of minor minerals which include sand. Chapter IV provided for grant of mining lease on the basis of auction or tender or auction-cum-tender. This system of granting lease was introduced by means of Notification dated 26-9-1990. It is well settled principle that sale of public property ought to take place publicly and public auction with open participation guarantees public interest. (See Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344 : 1980 Lab IC 1367 and State of U.P. v. Shiv Charan Sharma AIR 1981 SC 1722 : 1981 All LJ 10 25. In Sterling Computers AIR-1996 SC 51 it was held that extension of contract without inviting tenders was illegal. Sand is a fairly expensive commodity and an open auction would have fetched the best price and would have given substantial revenue to the State. However, the U.P. Government introduced certain amendment in the Rules on 27-8- 1994 under which the system of giving mining lease through auction or tender was abolished and the same is to be granted on the basis of an application. The procedure for this is given in Chapter II of the Rules and Rule 9-A provides that notwithstanding anything contained in Rule 9 in respect of mining lease for sand, preference shall be given to a person or group of persons who belong to socially and educationally backward classes of citizens engaged in carrying on the occupation of sand as a profession and arc resident of the same district in which the lease is applied for, is situate. The explanation to this Rule describes the persons who belong to socially and educationally backward classes and who are engaged in carrying on excavation of sand and they arc Mallah, Kewat, Nishad, Manjhi and others. Rule-9A was introduced on 22-2-1995. It is under this Rule that Smt. Sumitra Devi who is Mallah, by caste was given the mining lease. The provision of the Rule shows that now a mining lease for excavating sand can only be given to persons belonging to socially arid educationally backward class and they are generally of schedule caste or backward class. Rule 19 prohibits transfer of lease in any manner whatsoever. It further provides that a lessee shall not enter into or make any arrangement, contract or understanding whereby the lessee may be directly or indirectly financed to a substantial extent or may be financially controlled in mining operation by any person other than himself.

9. The inherent circumstances point out towards the correctness of the prosecution case. Smt. Sumitra Devi is a Mallah by caste and is an illiterate lady. It is mentioned in F.I.R. that the price of the loader machine is Rs. Seventy lakhs and the operators (hereof informed the inspecting party on the spot that machines had been hired on a rental of Rs. Twelve thousand per clay. It looks highly improbable that a person of the status of Smt. Sumitra Devi, an illiterate Mallah woman, will be able to enter into an agreement with a Company like M/s. Sharma Associates, Ash ok Vihar, New Delhi.

10. Section 383, I.P.C. defines extortion and reads as follows :

Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.

The statement of Smt. Sumitra Devi shows that after giving her threat of life, her property namely sand which she was entitled to excavate under the lease is being removed and taken away by others. Therefore, an offence of robbery as defined in Section 392, I.P.C. is clearly made out from the allegations made in the F.I.R. The principle on which a F.I.R. may be quashed have been enunciated in State of Haryana v. Bhajan Lal AIR 1992 SC 604 : 1992 Cri LJ 5 27 and the case in hand docs not fall in any one of the categories lead down therein. Therefore, it is not possible to quash the F.I.R. of the case.

11. The three, weapons found on the spot do not belong to Smt. Sumitra Devi. Obviously they were kept there for the purpose of taking away sand by threat, of force. The offence committed by the petitioners is fairly serious one. Unscrupulous business men will always be able to capture property of socially and educationally backward class by muscle power thereby not only defeat the object for which Rule 9A was enacted but also make huge profit by spending practically nothing. If lease had been granted on the basis of an open auction, the successful bidder would have been required to pay a huge amount. But by this illegal and unlawful method the accused will be able to excavate and remove valuable sand for which the real lessee has paid a very small premium. The type of people to whom the lease can be granted in terms of Rule 9A are bound to be poor and backward and would have no courage to raise their voice against the forcible removal of their property on account of fear of their life.

12. It may also be pointed out that supplementary counter affidavit has been filed by Rajendra Singh Investigating Officer wherein it is stated that, after investigation charge sheet No. 57 of 1998 has been submitted before the Court which was registered on 6-7-1998. The Court has taken cognisance of the offence and has fixed 17-8-1998 for appearance of the accused. It is further mentioned that an application for release of the loader was filed by Ram Adhar petitioner No. 1 before the concerned Magistrate, which was rejected. Regarding release of case property, adequate provision is made in Chapter XXIV of the Code of Criminal Procedure. The petitioners have an adequate alternative remedy of approaching the concerned Magistrate for release of the loaders and consequently this relief can not be granted in the present petition under Article 226 of the Constitution.

13. For the reasons mentioned above, the writ petition lacks merit and is hereby dismissed.

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