| SooperKanoon Citation | sooperkanoon.com/954144 |
| Court | Chennai High Court |
| Decided On | Nov-15-2012 |
| Case Number | Cri. O.P. Nos. 21570, 21573, 22056 & 21710 of 2012 & M.Ps. Nos. 1, 1 & 1 of 2012 |
| Judge | G.M. AKBAR ALI |
| Appellant | Perumal and Others |
| Respondent | inspector of Police, Madathukulam Police Station, Tirupur District and Another |
| Advocates: | For the Petitioners: A. Natarajan, S. Ashok Kumar, Senior Counsel, M.M. Balakrishna, A. Sasidharan, Advocate. For the Intervenor: M. Purushothaman, Advocate. For the Respondents: S. Shanmugavelayutham, Public Proseuctor assisted by C. Iyyapparaj, Governme |
(Prayer: Petitioner for Anticipatory Bail under Section 438, Cr.P.C.)
1. The Petitioners, who are alleged to have committed the following offences on the file of the Respondent, seek Anticipatory Bail.
| S.No. | Crl.O.P. No. & Cr.No. | Petitioners | Offences |
| 1 | 21570/2012Cr.No.361/2012 | Perumal/A.2Mayilsamy/A.3 R. Subbulakshmi/A.4 K. Mani/A.5 | 21(1) of Mines and Minerals (Development & Regulations) Act, 1957 r/w 379, IPC |
| 2 | 21573/2012 Cr.No.362/2012 | V.M. Thangavel/A.2Kittusamy/A.3 Kanakaraj/A.4 | 21(1) of Mines and Minerals (Development & Regulations) Act, 1957 r/w 379, IPC |
| 3 | 22056/2012Cr.No.363/2012 | Velliangiri/A.3Nagarathinam/A.4 | 21(1) of Mines and Minerals (Development & Regulations) Act, 1957 r/w 379, IPC |
| 4 | 21710/2012 Cr.No.208/2012 | Manivannan/A.1K. Shanmugasundaram/A.2 Narayana Murthy/A.3 Subramanian/A.4 | 21(1) of Mines and Minerals (Development & Regulations) Act, 1957 r/w 379, IPC |
| S.No. | Crl.O.P. Nos. | Name of the Brick-kiln |
| 1 | 21570/2012 | GEC Chambers |
| 2 | 21573/2012 | ABC Chambers |
| 3 | 22056/2012 | KVK Andavar Chambers |
| 4 | 21710/2012 | Sun Bricks |
4. Mr. A. Natarajan, learned Senior counsel appeared for the Petitioners in Crl.O.P.Nos.21570, 21573 & 22056 of 2012, which relate to Cr.Nos.361 to 363 of 2012 and Mr. S. Ashok Kumar, learned Senior Counsel appeared for the Petitioners in Crl.O.P.No.21710 of 2012 which relates to Cr.No.208 of 2012 and Mr. S. Shanmugavelayutham, learned Public Prosecutor assisted by Mr. C. Iyapparaj appeared for Respondent.
5. One Mr. Soundarajan, who belong to a political party, appeared through a Counsel Mr. M. Purushothaman as an Intervenor.
6. Though the facts and circumstances of all the Petitions are one and the same, the contentions of the learned Senior Counsel who appeared for the Petitioners, have been considered separately.
7. Mr. A. Natarajan, learned Senior counsel would submit that the very First Information Report itself is based on mistake of facts. The learned Senior Counsel submitted that from the year 2006, the Petitioners are running the brick-kiln chambers and they have obtained necessary licence from the Government for quarrying red soils from Patta land.
8. The learned Senior Counsel pointed out that only by an Order of the District collector, dated 3.6.2009 & 17.7.2009, the red soil which is a minor mineral were quarried and initially the mining period was for one year and renewed periodically. The learned Senior Counsel pointed out that the land owners have also given Consent Letter for quarrying red soil and necessary fee was also paid to the Government. The learned Senior Counsel further submitted that the Petitioners have also obtained licence for running brick-kiln chambers.
9. The learned Senior Counsel pointed out that there is no theft of minerals and in the process of making chamber bricks, the soil has to be stored in huge quantity and they will be periodically used for making bricks. The learned Senior Counsel further pointed out that the Petitioners have not committed any offence and there is no violation of any of the provision of the Mines and Minerals Act or Rules.
10. Mr. S. Ashok Kumar, learned Senior Counsel for the Petitioners in Crl.O.P.No.21710/2012 submitted that the Petitioners are also the licencees for running brick-kiln chambers and the Complaint is motivated. The learned Senior Counsel pointed out that the Petitioners have been granted permission from 7.3.2012 to 6.3.2013 for quarrying red soils and by a proceeding dated 31.8.2012, the Revenue Divisional Officer has found that there was an excess quarrying and has imposed a penalty of Rs.7,88,730/- and the same has also been paid by the Petitioners in Cr.No.208 of 2012.
11. The learned Senior Counsel pointed out that on 1.9.2012, on a Complaint given by the Village Administrative Officer, case has been registered. The learned Senior Counsel pointed out that the present allegation, that the Petitioners have quarried the red soil in excess and thereby caused loss to the Government to the tune of more that Rs.36,00,000/-, is founded.
12. Mr. M. Purushothaman, learned Counsel for the intervenor would submit that there are large number of illegal quarrying in the State and thereby causing damage to the environment and a Writ Petition was filed in W.P.No.9860 of 2008 before this Court directing the Government to prevent illegal quarry. The learned Counsel pointed out that pursuant to the order passed by this Court dated 5.11.2009 in the above Writ Petition, the Government has directed all the District Collectors to constitute District Level and Taluk Level Task Forces to monitor the mining and to prevent illegal quarrying and thereby causing damage to the environment.
13. The learned Counsel for the Intervenor further submits that the cultivable lands in Amaravathi Irrigation System are being spoiled and exploited and the mining mafia were looting the Natural Resources without any concern for the environment. The learned Counsel further pointed out that the Petitioners, who belong to a Communist Party of India, gave a Petitioner to the District Administration and to the District Superintendent of Police and immediate action was taken by registering a case against the wrong doers. The learned Counsel pointed out that it is a case of exploitation of Natural Sources and therefore, strongly objected for granting pre-arrest bail.
14. On the other hand, Mr. S. Shanmugavelayutham, learned Public Prosecutor submitted that initially case has been registered on the Complaints given by the village Administrative officers of the respective villages and later on an inspection conducted by the Revenue Divisional Officer would show that large quantity of mines and minerals were quarried without permission and has been stored in the brick-kiln chambers. The learned Public Prosecutor pointed out that the seigniorage fees has not been paid thereby causing revenue loss to the Government and the Accused were absconding and they are required for custodial interrogation to find out and to fix the actual loss to the Government. The learned Public Prosecutor has also produced the proceedings of the Director of the Mines and Minerals, who had assessed the excess quarrying.
15. Mr. A. Natarajan, learned Senior Counsel who appeared for the Petitioners in Crl.O.P.Nos.21570, 21573 & 22056 of 2012, had a preliminary objection of entertaining an Intervenor Petition by third party and relied on an unreported order of the Delhi High Court in Bail Application No.825 of 2009 dated 12.9.2009 and also the case reported in Praveen Malhotra v. State, 1990 Crl.L.J. 2184.
16. Heard and perused the materials available on record.
17. As far as the preliminary objection of allowing a third party as Intervenor is concerned, in Bail Application No.825 of 2009, the Delhi High Court had placed reliance of a judgment of its own reported in Indu Bala v. State, 1991 Crl.L.J. Delhi 1774, and has held that “a co-accused or even a third party cannot be permitted to oppose the Bail Application of any other co-accused”. The court has further observed that if this is permitted to be done it will result in multiciplity of litigation and such Applications would also result in side tracking the focus of the Court from the main issue.
18. In Praveen Malhotra v. State, 1990 Crl.L.J. 2184, the Delhi High Court had an occasion to consider the right to intervene by a third party in a Bail Application. On elaborate discussion, the Court observed that “in my opinion the grant of permission to the Applicants to intervene as claimed by them would amount to extending the creed of populism in the realm of judicial action”. However, the Delhi High Court has further pointed out that the Applicants therein have not alleged that the State is not doing its duty properly in any manner.
19. However entertaining a defacto-Complainant or third party intervention in Bail Applications is not uncommon. Though the State is discharging their duty through the Prosecutors in opposing the Bail Applications, the submissions of the Intervenor has been taken into consideration only to the extent of bringing to the knowledge of the Court certain facts. Anybody assisting the Court for dispensation of justice cannot be prevented at the threshold but such intervention is not a matter of right. Keeping this in minds, this court has considered the submissions of the learned Counsel for the Intervenor only to an extent that illegal and excess quarrying is matter of deep concern. However, it should not lead to interference in the judicial discretion and for an unbiased decisions.
20. The Courts cannot allow emotional and sentimental feelings to come into the judicial pronouncements. There should not be any hostile atmosphere and Court should be allowed to an unbiased approach. Therefore, the third party has no right to intervene at the stage of consideration of Bail Application. However, their submissions may be taken to the extent of assisting the Court in bringing up certain facts and circumstances, but cannot be allowed to extend further to interfere with the judicial discretion and as rightly pointed out by the Delhi High Court a new creed of populism can not be encouraged.
21. Therefore, the Intervenor Application is allowed only to an extent of assisting both the prosecution and this Court to the extent of highlighting certain facts. The facts highlighted by the learned Counsel for the Intervenor are as follows:
(i) Village Administrative Officer is also an authority under the Taluk Task Force in prevention of illegal mining. Therefore, the Complaints given by the VAOs cannot be questioned.
(ii) Exploitation of natural resources will damage the environment and they should be strictly monitored.
22. This Court appreciates the intention of the Intervenor to that extent. While considering the prayer for granting Anticipatory Bail, Section 438, Cr.P.C., contemplates that the Court may take into consideration the following factors:
(i) The nature and gravity of the accusation;
(ii) The antecedents of the Applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the Applicant to flee from justice;
Only on these factors this Court can consider any pre-arrest bail.
23. In all the above crime numbers, it is admitted that the Petitioners have obtained licence to run brick-kiln chambers. It is also admitted that they were quarrying in private Patta lands subject to the conditions laid down in the licence granted to them. One of the conditions is that the quarrying should not be beyond one meter depth. As far as the allegations of the District Authority as well as the Department of Mines and Minerals are concerned, there is excessive quarrying.
24. An inspection was conducted by the Deputy Director of Mines and Minerals, Tirupur on 6.10.2012. Even according to the prosecution, as per their Counter, the allegations are as follows:
| S. No. | Complainant Name | Cr.No. & Under Section | Date & Time of registration of the case | Soil Lands & Value of the Loads Rs. |
| 1 | Vasanthi, VAO, (Village Administrative Officer), Dungavi Village, Madathukulam, Tiruppur Dt. | Cr.No.361/2012 under Section 379, IPC & 21, Mines Minerals Development Regulation Act, 1957 | 1.9.2012 at18.30 hours | 3578 loads3578 x 250 = 8,94,500/- |
| 2 | Tr. R. Karthikeyan, VAO, Kannadipudhur Village, Madathukulam, Tiruppur Dt. | Cr.No.362/2012 under Section 379, IPC & 21, Mines Minerals Development Regulation Act, 1957 | 1.9.2012 at19.00 hours | 3942 loads3942 x 250 = 9,85,850/- |
| 3 | Tr. Suresh, VAO, Kadathur Village, Madathukulam, Tiruppur Dt. | Cr.No.363/2012 under Section 379, IPC & 21, Mines Minerals Development Regulation Act, 1957 | 1.9.2012 at19.30 hours | 4720 loads4720 x 250 = 11,80,500/- |
| 4 | Tr. Dhandapani, VAO, Pappankula Village | Cr.No.208/2012 under Section 379, IPC & 21, Mines and Minerals Development Regulation Act, 1957 | 1.9.2012 at21.30 hours | 14655 loads14655 x 250 = 36,63,750/- |
26. The inspection by the Deputy Director would show that at the time of inspection what was stored in the brick-kiln chambers were quantified. Whether this soil was in excess and whether seigniorage fees has been paid or not have to be ascertained only during the investigation.
27. The proper measurements by the authorities with available records will determine the ratio of quarrying and storing. Therefore, I am of the considered view that custodial interrogation may not be necessary unless the Accused-Petitioners are not co-operating with the investigation.
28. In Siddharam Satlingppa Mhetre v. State of Maharashtra and Others, 2011 (1) MWN (Cr.) 15 (SC) : 2011 (1) SCC 694, the Hon’ble Supreme Court held:
“113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the Accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”
And further observed:
“117. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the Accused in a routine manner. These suggestions are only illustrative and not exhaustive.”
(i) Direct the Accused to join the investigation and only when the Accused does not cooperate with the investigating agency, then only the Accused be arrested.”
29. In any event, the present stored soil has been quantified for which it is alleged that seigniorage has not been paid.
30. As far as the Petitioners in Cr.No.208 of 2012 is concerned, they have produced a proceeding dated 31.8.2012 (one day earlier to the registration of the case) in which the Revenue Divisional Officer has quantified seigniorage at Rs.120/- for a total lorry loads of 1293. The penalty was imposed for a sum of Rs.7,88,730/-.
31. In the objection filed by the Respondent, the total lorry load was shown as 14655 and the seigniorage has been calculated at Rs.250/- per load and thereby total loss to the Government caused has been shown as Rs.36,63,750/-. Whether the Inspection Report is correct or assessment by the Revenue Divisional Officer, Udumalpet is correct has to be decided only after investigation. Till such time, it will be appropriate to direct them to deposit the present assessed value while considering the pre-arrest bail. I am also satisfied that the Petitioners will not tamper with witness or flee from justice and therefore, no prejudice would be caused to the prosecution if the Petitioners are granted Anticipatory Bail. Mr. S. Ashok Kumar, the learned Senior Counsel for the Petitioner in Crl.O.P.No.21710 of 2012 submitted that value assessed at Rs.36,63,750/- too excessive comparing to the assessment by the Revenue Authorities. I think there is a force in his argument.
32. Accordingly,—
(i) the Petitioners are ordered to be released on bail in the event of arrest or on their appearance within a period of fifteen days from the date of receipt of copy of this order before the learned Judicial Magistrate No.II, Udumalpet (in respect of Crl.O.P.No.21710, 21573 & 22056 of 2012) and before the learned Judicial magistrate No.I, Udumalpet (in respect of Crl.O.P.No.21710 of 2012);
(ii) the Petitioners shall execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with two sureties each for the like sum to the satisfaction of the learned Magistrate concerned, or to the satisfaction of the Respondent-Police or to the Police Officer who intends to arrest;
(iii) the Petitioners in Crl.O.P.No.2157/2012 shall deposit (jointly) a sum of Rs.5,00,000/- to the credit of Cr.No.361 of 2012,; the Petitioners in Crl.O.P.No.21573/2012 shall deposit (jointly) a sum of Rs.5,00,000/- to the credit of Cr.No.362 of 2012; the Petitioners in Crl.O.P.No.22056 of 2012 shall deposit (jointly) a sum of Rs.5,00,000/- to the credit of Cr.No.363 of 2012 before the learned Judicial magistrate No.II, Udumalpet and the Petitioners in Crl.O.P.No.21710 of 2012 shall deposit (jointly) a sum of Rs.10,00,000/- to the credit of Cr.No.208 of 2012 before the learned Judicial Magistrate No.1, Udumalpet within a period of two weeks from the date of receipt of copy of this order;
(iv) The Petitioners shall appear before the Respondent daily twice at 10.00 a.m. & 5.00 p.m. for a period of two weeks and thereafter, as an when required.
Consequently, connected M.Ps. are closed.