Usha Martin Limited V. The Union of India, through the Assistant Director, Enforcement Directorate, Patna Zonal Office

Cr.M.P./1334/2021

AI Insights

The case involves Usha Martin Limited, which was accused of violating the terms of its mining lease by exporting iron ore that was supposed to be used for captive purposes only. The Enforcement Directorate filed a complaint under the PMLA, leading to the issuance of summons against the company and its officials. The petitioner challenged the cognizance taken by the trial court, arguing that the actions were within the legal framework of the mining lease and that the trial court had not properly considered the evidence. However, the High Court upheld the trial court's decision, emphasizing the need for a detailed examination of the allegations and the evidence presented.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 811125 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 03-11-2021
• Assessment Year: misc
• Other Referred Cases: Krishnanand Tripathi v. State of Jharkhand and Others, Sharat Babu Digumarti v. Government (NCT of Delhi), Hari Sao and Another v. The State of Bihar, Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, Sunil Bharti Mittal v. C.B.I, State (NCT of Delhi) v. Sanjay, Kanwar Pal Singh v. State of Uttar Pradesh and Another, Centre for Public Interest Litigation v. Union of India, Arun Kumar and Others v. Union of India and Others
• Laws Referred To: Prevention of Money Laundering Act, 2002, Mineral Concession Rules, 1960, Mines and Minerals (Development and Regulation) Act, 1957, Forest Conservation Act, 1980, Prevention of Corruption Act, 1988, Indian Penal Code
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: AMIT DAS
• Assessee Lawyers: SIDHARTH LUTHRA
• Keywords: Environmental laws; Forest Clearance; Illegal export; Mining lease; Money laundering; Captive mining
• Section: 22; 13(2); 5; 3; 18; 4; 13(1)(d); 11(3); 62; 33; 27(3)

Judgement Text

"1 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Cr.M.P. No. 1334 of 2021 ---- Usha Martin Limited, A company registered under the Companies Act, 1956 having its Registered Office at 2A, Shakespeare Sarani, P.O. & P.S.- Shakespeare Sarani, District-Kolkata (West Bengal) and having its Manufacturing unit also at Tatisilwai, P.O.& P.S.-Tatisilwai, District-Ranchi (Jharkhand), through its Senior Manager (Legal), namely, Subhendu Kumar Lal, aged about 45 years, son of Nibaran Chandra Lal, resident of Village Habichak, P.O.-Nandapur, P.S.Chandipur, District Purba Medinipur, West Bengal. ….. Petitioner -- Versus -- The Union of India, through the Assistant Director, Enforcement Directorate, Patna Zonal Office, having its Sub Divisional Office at Pepee Compound, Kaushalya Chamber-II, Main Road, Ranchi, P.O.-G.P.O, P.S.-Lower Bazar, District Ranchi-834001 (Jharkhand) ... Opp. Party ---- PRESENT: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Mr. Sidharth Luthra, Sr. Advocate Mr. Saurabh Shekhar, Advocate Mr. Aman Jha, Advocate Mr. Rajiv Shanker Bhatnagar, Advocate Ms. Mehernuisa Anand Jaithy, Advocate Mr. Anshuman Mohit Chaturvedi, Advocate Ms. Shubhangini Jain, Advocate Mr. Rishi Tutu, Advocate For the. Opp.Party :- Mr. Amit Kumar Das, Advocate [Enforcement Directorate] Mr. Shivam Utkarsh Sahay, Advocate Mrs. Swati Shalini, Advocate Mr. Saurav Kumar, Advocate Mr. Sahay Gaurav Piyush, Advocate ---- C.A.V. on 21/10/2021 Pronounced on 03/11/2021 Heard Mr. Sidharth Luthra, the learned Senior counsel appearing on behalf of the petitioner and Mr. Amit Kumar Das, the learned counsel appearing on behalf of the Opposite Party-Enforcement Directorate. 2 2. This petition has been filed for quashing the impugned order dated 20.05.2021 whereby the petitioner and other accused were summoned before appear before the court on 10.06.2021 and consequential proceeding initiated for the District Sessions Judge-cum- Special Judge, C.B.I., Ranchi arising out of and in connection with the filing of Special Trial PMLA Complaint Case No.2/2021 filed by the O.P.No.2)-Assistant Director, Enforcement Directorate under section 44 and 45 of Prevention of Money Laundering Act, 2002 (hereinafter to be referred as 'the Act of 2002' for commission of offence of money laundering, has been defined under section 3 read with section 70 which is punishable under section 4 of the Act of 2002 in relation to E.C.I.R. No.PTZO/03/2017 dated 04.05.2017 pending in the court of Incharge Judge, Sh. Prakash Jha, the learned Additional Judicial Commissioner-16 at Ranchi. 3. The said complaint case was filed stating therein that: (i) the petitioner has violated its undertaking of captive mining submitted in its application made under Rule 22(1) of the Mineral Concession Rules, 1960 (“MC Rules”) for the grant of Mining Lease for the mine, Vijay II Iron Ore Mine situated at Ghatkuri Village (Saranda Reserved Forest Division) admeasuring 383.20 acres in Sadar Chaibasa Sub-Division, West Singhbhum (“Mine”); and sold/exported iron ore mined, despite such undertaking of captive mining; (ii) that while granting the forest clearance and the mining Lease to the petitioner, officials of Ministry of Environment and Forest allegedly violated mining laws, environmental laws and various rules, and that the regulations prescribed by the Hon’ble Supreme Court of India were also given a go-by on some extraneous consideration. 4. However, it appears that while filing the impugned 3 complaint, the allegations with respect to any alleged violation of environmental laws seems to have been dropped and therefore, the impugned complaint only refers to the violation of mining laws and Act of 2002. 5. On perusal of the impugned order it transpires that the cognizance has not been taken for violation of environmental laws as alleged. The cognizance has been taken under the PMLA Act (the Act of 2002). 6. Mr. Sidharth Luthra, the learned Senior counsel appearing on behalf of the petitioner submitted that by order dated 20.05.2021 the cognizance has been taken and the petitioner and other co-accused have been summoned by the concerned court which is against the well settled provisions of law. He advanced his argument by way of submitting that vide Gazette Notification dated 26.12.1985 under Rule 59 of the Mineral Concession Rules, 1960 (hereinafter to be referred as 'the Rules of 1960), the State Government of Jharkhand notified the Gazette to re-grant mining lease for the mines. On 19.01.1998, the petitioner submitted to the Government of Jharkhand an application under Rule 22(3) of the Rules of 1960 for allocation of mine in prescribed statutory Form-I along with the undertaking for use of the mined ore for its own industry. He further submitted that Government of Jharkhand after having assessment of the application and the requirement specified under section 11(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act of 1957). vide letter dated 24.05.2003 sent which is recommendation in favour of the petitioner by the Government of India for approval under section 5(1) of the Act of 1957 for grant of mining lease to the petitioner. The Government of Jharkhand sought certain clarification for the purpose of assessing the petitioner's 4 merit and for grant of approval under section 5(1) of the Act of 1957. The petitioner filed the clarification and after considering the clarification of the petitioner, the Government of Jharkhand accorded its approval for grant of mining lease valid for 20 (twenty) years in favour of the petitioner under section 5(1) of the Act of 1957. The final approval of consent has been provided by the Government of Jharkhand after having the approval under the Forest Conservation Act, 1980 and the Rules of 1960. The final approval was accorded on 16.03.2005 by the Government of Jharkhand which was issued in statutory Form-'K' of the Rules. The petitioner filed a modified mining plan before the Indian Bureau of Mines. In the said plan, the petitioner specified the physical and chemical composition of iron ore required for its blast furnaces and sponge iron kilns. After such process, on 16.08.2005, the mining lease in Form-'K' was duly executed between the Government of Jharkhand and the petitioner for a period of 20 years on the condition mentioned therein. The allotment of the mine to the petitioner was challenged before the Mines Tribunal by the two other applicants and by the revision application, the same was dismissed by the Mines Tribunal on 19.05.2009. 7. Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner further submitted that in the modified plan it was disclosed that 10-40 mm calibrated iron ore lumps with 64% Fe content was required by the blast furnaces while sponge iron kilns required 5-20 MM calibrated iron ore lumps with 65 – 68 % Fe content. Mr. Luthra, the learned Senior counsel further submitted that to maintain the prescribed Fe content of the ore, some lower grade iron ore lumps obtained during mining were utilized by the petitioner by blending the same with higher grade calibrated sizes ore sourced from the open market through the process termed sweeting as recommended in the MMP. He submitted 5 that the sized ore which was left, the petitioner was having no alternative use and the same were sold and exported for being surplus waste between the years 2006-07 to 2009-10 in accordance with law and upon making necessary disclosure, filing of challans with the District Mining Officer, proper payment of royalties/taxes as also in accordance with the statutory mining lease. The learned Senior counsel further submitted that storage of unusable IOF’s and waste product was not desirable that the same is hazardous to the environment requires large tracts of land, which area of the land could otherwise be put to better use and deprives the Government royalty and other taxes payable under the law. The Government of Jharkhand by its order dated 11.12.2009 restricted the petitioner from disposing any material from the mine for that the petitioner represented on various dates highlighting the illegality and the environmental hazardous, which pursuant thereto, Government of Jharkhand partially lifted the ban of disposal/sale of waste over-burdened and other waste material by notification dates 27.08.2011. The said notification dated 27.08.2011 was challenged before this Court in W.P.(PIL) No.5259 of 2011 (Krishnanand Tripathi v. State of Jharkhand and Others). He submitted that by the said judgment dated 14.02.2012, the High Court affirmed the sale/export of IOFs setting-aside the restriction of the Government of Jharkhand dated 27.08.2011. He further referred to the paragraph nos.14, 16 and 19 of the judgment of Krishnanand Tripathi (supra). He further submitted that the said judgment was not challenged before any Court of law which has attained finality. Pursuant to that order, the Government of Jharkhand made a reference requesting the imposition of restrictions on sale and export of iron ore by mining lease holders as of the petitioner. Pursuant thereto, the Government of Jharkhand imposed special condition under Rule 27(3) 6 of the Rules restricting sale or export of iron ore for all mining leases proposed to be executed/granted or proposed to be renewed for applicant who has been given preference in allotment. He further submitted that the Government of Jharkhand sought clarification from the Government of India by its letter dated 13.12.2012. The applicability of this decision on existing lease-holders who have been allotted mines giving preference in allotment. He further submitted that Government of India vide its letter dated 21.03.2013 stated that imposition of special condition under Rule 27(3) of the Rules and either by exercise at the grant of fresh lease or should be exercised at the time of renewal of mining lease. In light of this, he further submitted that in view of the judgment in Krishnanand Tripathi case (supra) and the clarification dated 19.09.2012 and on 21.03.2013, the erstwhile acts of export and sale of waste by the petitioner were permitted within the applicable laws, rules and the regulation and no restrictions imposed by the State Government was required as the lease was not renewed at that time. He further submitted that in light of this, the Central Bureau of Investigation (C.B.I) on 20.09.2016 registered the F.I.R No.R.C.220/2016 under section 120B read with Section 420 of the IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (P.C.Act) against the petitioner and other persons. Paying emphasis on his argument, he submitted that in the said case no charge-sheet has been filed till date. He submitted that the petitioner has been co-operated with the C.B.I investigation, however, even after lapse of more than 4 years, no charge- sheet has been filed by the C.B.I which discloses the lack of merit in the case so far the petitioner is concerned. He further submitted that inspite of the C.B.I case, the Opposite Party issued the E.C.I.R. No.PTZO/03/2017 dated 04.05.2017 against the petitioner and initiated 7 proceeding under the Act against the petitioner. He submitted that the same was done mechanically and without application of mind or even having any preliminary enquiry only on the contents of the C.B.I F.I.R. was lodged. According to him, the Opposite Party has interrogated various employees of the petitioner in connection with the said E.C.I.R and recorded their detailed statement under section 50 of the Act. He submitted that although the petitioner was cooperating provisional attachment order No.04/2019 dated 09.08.2019 was issued by the Opposite Party under second proviso to sub-section 1 of section 5 of the Act. By way of which two properties of the petitioner were provisionally attached amounting to INR 190 Crores. He submitted that the disclosure of the property is made in paragraph no.(xxii) of the petition. Pursuant to that Original Complaint No.1187/2019 was filed by the Opposite Party before the adjudicating authority under the Act. He submitted that the petitioner had disclosed everything before the authority, including the judgment of Krishnanand Tripathi (supra), ignoring those, the impugned complaint before the trial court was filed at Ranchi. The executing authority pronounced its final order on 10.01.2020 whereby the attachment was confirmed. The petitioner filed the appeal against that order before the P.M.L.A Appellate Tribunal, New Delhi which was numbered as Appeal No.3405/2020 along with stay petition. By order dated 31.01.2020, the Appellate Tribunal passed the order of status-quo in favour of the petitioner till the next date of hearing. He submitted that no reply to the main petition or stay application was filed by the Opposite Party, however, Opposite Party has issued summon under section 50 of the Act upon Mr. Pramod Kumar Fatepuria, Senior General Manager (Logistic) of the petitioner which was not received by Mr. Fatepuria and having knowledge Mr. Fatepuria responded summon on the e.mail 8 seeking additional time to appear before the Opposite Party. Mr. Fatepuria appeared in the Office of the Opposite Party on 06.01.2021 and Mr. Fatepuria was arrested by the Opposite Party and was granted its custody to the learned District and Special Judge-cum-Special Judge, E.D., Patna in connection with Special Trial No.PMLA 01/2021 under section 3 and 4 of the Act arraying the petitioner as an accused no.1 and Promod Kumar Fatepuria as accused no.2. He submitted that Patna was not the territorial jurisdiction for filing the same and only to binding nature of the judgment passed by this Court in Krishnanand Tripathi case (supra) that has been filed. As the entire subject matter are in the State of Jharkhand the petitioner filed a Criminal Writ No.21445/2021 before the Hon'ble Patna High Court on 24.01.2021 seeking quashing of the Patna E.D. Complaint along with quashing of all proceeding on the ground of lack of territorial jurisdiction of Patna trial court. Mr. Pramod Kumar Fatepuria challenged his illegal custody. The Patna High Court quashed Patna E.D complaint and all proceedings emanating therefrom that the Court at Patna did not infact possess the jurisdiction to try the Patna E.D.complaint. It was quashed against the petitioner as well as against Mr. Pramod Kumar Fatepuria and the complaint case was directed to be handedover to the Opposite Party who was granted to file the same before the court having appropriate jurisdiction. Patna High Court orders release of Mr. Pramod Kumar Fatepuria on 14.05.2021. He submitted that after return of the E.D. Complaint by the Patna trial court, immediately the present complaint was filed by the Opposite Party before the trial court on 20.05.2021. He submitted that the present complaint is verbatim /reproduction of the Patna E.D. Complaint. Except an adding for addition of offence to the filing of Patna E.D. Complaint. The learned trial court vide its order dated 20.05.2021 has taken cognizance of the complaint. 9 The petitioner and Mr. Pramod Kumar Fatepuria have received summons to attend their proceedings before the trial court and file relevant petition seeking documents for exemption of personal appearance, anticipatory bail was applicable which was presently pending for adjudication before the learned trial court. 8. Mr. Luthra, the learned Senior counsel has assailed the impugned cognizance and the entire proceeding on the ground that the present case is a glaring example of abuse of process of law, particularly, as the question and the allegation raised in the complaint have already been settled by this Court in Krishnanand Tripathi case(supra). He placed the impugned order and submitted that the concerned court has noted that he has gone through the evidences oral as well as documentary collected by the investigating agency in connection with the complaint/content in the charge-sheet at length and has come to a prima-facie conclusion. He further submitted that the petitioner submitted his information in Form-I of the Rules for lease of iron ore stating therein the use of iron ore to its plant and undertaking. The mining to the petitioner was provided for Gamharia and Bhokhra in 2009. By way of placing the Government of India letter dated 07.12.2009, he submitted that certain rectification was directed to be done by the Junior Mining Geologist to the petitioner and for compliance of Rule 13(1) the letter dated 03.02.2010 was issued by the Government of India, Ministry of Mines, Indian Bureau of Mines. According to him, that was complied by the petitioner. He referred to National Steel Policy of 2005 and relied on Clause 6.2.2 which reflect to export of iron ore and submitted that it has been recorded that fines and concentrates which have little use in India except as a negative environmental externality, make up about 90% of Indian iron ore exports currently. He referred to Section 4 of the Act of 10 1957 and submitted that prospecting or mining operation to be under license or lease are governed under this section. He further submitted that under sub-section 2 of section 9 of the Act of 1957 for the payment of royalty, the provision is made. He submitted that the petitioner is paying the royalty. He referred to section 10 of the Act of 1957, the prescribed application for prospecting licenses or mining leases. By way of referring to second schedule of section 9, he submitted that at serial no.24, iron ore is disclosed and the rate of royalty is disclosed at 15 % of average sale price on ad valorem basis. He submitted that under the Mineral Concession Rules, 1960, “Form” is prescribed under sub-rule (ii) of Rule 2 and in Rule 2 (ii-a) “illegal mining” has been described. He submitted that procedure for grant of application of mining lease is prescribed under Rule 22 of the Rules of 1960. He submitted that Rule 22A prescribes for operation of mining in terms of mining plans. He submitted that the petitioner has already submitted a plan and subsequently modified the application which again approved that the petitioner was not doing any illegal mining. He submitted that in terms of Rule 22B, mining plan is required to be prepared by the recognized person and under Rule 27, conditions of providing mining lease has been prescribed. By way of referring to Rule 64C he submitted tailing or rejecting mining are not liable for payment of royalty. 9. Mr. Luthra, the learned Senior counsel further took the Court to Form-I which is the application for mining lease under Rule 22(1) of the Mineral Concession Rules, 1960. He drawn attention of the Court to legal status of the forest at page 169 of the paper book and submitted that it has been declared as reserved forest. By way of referring the said Form-I regarding captive use, he submitted that it has been disclosed that pig iron in Mini-B Furnace in operation and only 11 surplus ore if any, to be sold. He further submitted that in the said Form it has been disclosed that ore will be used only for consumption for captive use. He further referred to undertaking of the petitioner. He drawn the attention of the Court to the modified mining plan submitted. By way of referring Clause 8.1, 8.2, 8.3 and 8.4 of the said plan he submitted that constituents B.F grade DRI have been disclosed. He further referred to mineral processing clause 10.1 and 10.3.1 and submitted that it has been disclosed that the company has taken decision that initially ROM ore will be processed at Cone crushing and screening unit at their Gamharia plant site. He also referred to clause 10.4.2. He relied on National Steel Policy of 2005 contained in Annexure-4, particularly, clause 6.2.2 referring exports of iron ore and submitted that after remaining stagnant at around 35 MT for about a decade between 1991-92 to 1999-2000 export of iron ore from India have gone for the last four years to 78 MT in 2004-05 on the back of large exports of iron ore fines to China. Fines and concentrates, there being little use in India which has negative environmental externality, make up about 90% of Indian iron ore exports currently. He also referred to iron ore mine lease agreement particularly, the royalty fees and submitted that the petitioner is paying royalty fee. He also referred to part-II regarding liberty, power and privileges to be exercised and enjoyed by the lessee/lessees, subject to the restrictions and conditions in part-III. He further referred the rate and mode of payment of royalty and submitted that the petitioner is paying the royalty in terms of the agreement. He also referred part-III the restrictions and conditions as to exercise of liberty, power and privileges in part-II. By way of referring to clause-5 which speaks about no mining operation within 50 meters of public work etc. and submitted that, that has been taken care of. He also referred facilities for adjoining 12 Government licenses and leases of the said agreement. By way of referring the said document he submitted that the provision has been made in respect of any case of default in payment of rent or water rate or royalty as required under section 9 of the Act and provision of forfeiting of security deposit is there. According to him, penalty for repeated breaches of covenants has also been described in the agreement. He submitted that in terms of Rule 5(2) on behalf of the petitioner, seller name has been disclosed. He submitted that quantity of use in M.T has been informed by letter dated 31.01.2008 to the District Mining Officer, contained as Annexure-7 to the rejoinder. He further submitted that the mining lease was provided to the petitioner with effect from 16.08.2005. By way of referring section 18 of the Act of 1957, he submitted that rule making power is preserved with the Central Government. He submitted that in terms of section 18 of the Act of 1957 and in supersession of Mineral Conservation and Development Rules, 1988 as except as respects things done or omitted to be done before such supersession, the Central Government makes the Mineral Conservation and Development Rules, 2017. He referred to Chapter-IV of the said Rules and submitted that Rule-31 provides for general requirement about plans and sections. By way of referring Rule-33 of the Rules of 2017, he submitted that copies of plan and sections to be submitted before the authorized officer. By way of referring Rule 58 of the Rules of 2017, he submitted that the power to issue directions for conservation of minerals and for sustainable mining as the Controller General or the Director, Atomic Minerals Directorate for exploration and research has been provided as the case may be, may issue from time to time. He referred to Rule 62 and submitted that penalty has been prescribed in this rule wherein it has been prescribed that punishable 13 with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention. By way of referring the provisions of such Act of 1957, he submitted that for any contravention of the Act, there is complete provision of action if any violation is found to be done by any lease-holder. He submitted that this is the complete Code for relating to the offences under Mines and Minerals under the Act of 1957. He submitted that when a special Act is there, provision of I.P.C and other Act will not apply. To buttress his this argument, he relied in the case of “Sharat Babu Digumarti v. Government (NCT of Delhi)” (2017) 2 SCC 18. The paragraph nos.28, 29, 31, 37 and 38 of the said judgment are quoted hereinbelow: “28. We have referred to all these provisions of the IT Act only to lay stress that the legislature has deliberately used the words “electronic form”. Dr Singhvi has brought to our notice Section 79 of the IT Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. The learned counsel has also relied on Shreya Singhal as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69-A and in that context, expressed that: (SCC pp. 180-81, paras 121-23) “121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed—one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not 14 be blocked is noticeably absent in Section 69-A read with the 2009 Rules. 122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b). 123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid.” 29. We have referred to the aforesaid aspect as it has been argued by Dr Singhvi that the appellant is protected under the said provision, even if the entire allegations are accepted. According to him, once the factum of electronic record is admitted, Section 79 of the IT Act must apply ipso facto and ipso jure. The learned Senior Counsel has urged Section 79, as the language would suggest and keeping in view the paradigm of internet world where service providers of platforms do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge. He would contend that the Act has created a separate and distinct category called “originator” in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal, he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the 15 provision has been read down emphasising on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr Singhvi, constitute a holistic trinity. 31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same. 37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC. 38. In Jeewan Kumar Raut v. CBI, in the context of the Transplantation of Human Organs Act, 1994 (TOHO) treating it as a special law, the Court held: (SCC p. 537, paras 22-23) “22. TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise 16 dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. 23. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code.”And again: (SCC p. 538, para 27) “27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO.” 10. Referring this judgment, he further submitted that it is well settled that when a special law is there that shall prevail over the general and prior laws like I.P.C. By way of referring to this, he submitted that the entire proceeding is bad in law. At This stage, he further referred to the case of “Krishnanand Tripathi”(supra) and submitted that this issue has been settled by the Division Bench judgment and only to harash the petitioner, the present proceeding has been initiated. He referred to the order of the revision application and submitted that after the argument of all the parties and after considering all the facts and the documents, the Tribunal observed that it is clear that the State Government has followed the provision of section 11(5) of the Act of 1957 before taking a decision with regard to grant of mining lease based on their declared and notified policy of December, 2001. As regards forest clearance under the Forest Conservation Act, the Ministry of Environment and Forest granted clearance only for 29 hectares and the mining activities are confined to this area only. No case of any violation was found against the impleaded 17 party. By way of referring the letter dated 11.12.2009, he submitted that the Deputy Commissioner of West Singhbhum, Chaibasa has been intimated with regard to stop the petitioner from export of the captive mine ores. By way of referring Gazette notification dates 27.08.2011, he submitted that on the opinion of the Advocate General it was decided for lifting ban of disposal/sale of iron ore fines over-burdened and other waste materials imposed upon the captive mine owners considering the adverse effect on environment and this was decided by the Cabinet of Government of Jharkhand, taking into account the overburden of disposal and considering the environmental factor and one time bound disposal was required to be done. He referred to Annexure of the opinion of the learned Advocate General contained along with proposal for permission of export. By way of referring letter dated 21.03.2013 of the Government of India, he submitted that it has been provided that imposition of special condition under Rule 27(3) of the Rules of 1960 in the lease deed should be exercised at the time of grant of fresh lease or should be exercised at the time of renewal of the mining lease. Relying on this, he submitted that it was one time exercise which has been done in the case of the petitioner and there was no occasion to slap with multiple proceeding against the petitioner. By way of referring letter dated 19.09.2012 contained in Annexure-22 of the supplementary affidavit, he submitted that imposition of special condition as per the Rule 27(3) of the Rules of 1960 all the State Governments were directed to ensure that by which it was communicated that the entire ore produced in the mining operation shall be used exclusively for own consumption in iron or steel making and cannot be either sold in India or exported to other countries. He submitted that on 19.01.1998 in prescribed Form-I application for lease was made. Government of India letter is dated 07.11.2003 by which the 18 20-year recommendation for lease over an area of 383.20 acres in Mauza-Ghatkuri Reserve Forest was recommended by the Government of India. He submitted that modified plan has been submitted on 30.06.2004 which was approved by the Government of Jharkhand on 16.03.2005. On 16.08.2005, the mining lease was executed and the revision application was decided by order dated 19.05.2009 and on 11.12.2009, the restrictions were communicated by the Government of Jharkhand which has been amended as one time resolution by the Government of Jharkhand on 27.08.2011 by way of Gazette notification. In the 'Krishnanand Tripathi' judgment by the Division Bench delivered on 14.02.2012 and on 19.09.2012 the Central Government communicated regarding the restrictions and by Annexure-10 dated 21.03.2013 it was clarified that all will be exercised at the time of renewal of the lease or on the fresh application. He submitted that so far the sale and export is concerned, that has already been over by the year 2010. In terms of Annexure-11 the C.B.I has registered the F.I.R on 20.09.2016 which has not been concluded as yet and the charge-sheet has not been submitted. The Enforcement Directorate has registered the F.I.R on 04.05.2017 and the assets of Rs.190 crores of the petitioner have been seized. The petitioner moved before the appellate authority wherein the status-quo order has been passed. On these submissions, he submitted that the summon order is not a reasoned order and that is non-application of mind. He referred to certain paragraphs of the complaint contained in Annexure-1/1. By way of referring to the complaint, he submitted that about 1214 pages were produced before the learned court and the learned court has stated that it has gone through the evidences collected by the investigating agency. It, prima-facie, has found the case against the petitioner and the said documents have been returned to keep the 19 said documents in the custody of the prosecution for proper up-keep and maintenance of the same. He submitted that this shows that the learned court has not gone through the entire documents and has taken the cognizance. He submitted that in the F.I.R No.RC 220/2016, charge sheet has not been filed as yet. He submitted that in the complain in paragraph no.3(ii) it has been disclosed by the Assistant Director (Enforcement Directorate) that the environmental clearance was issued to the petitioner for mining ore in Ghatkuri, West Singhbhum where mining activities are prohibited and restricted and the allegations have been made for violating mining laws, environmental laws and forest rules and regulation prescribed by the Hon'ble Supreme Court. He submitted that it has been alleged that the user industry was required to use the ore for his own requirement but he has indulged in cheating by selling the ore in open market which has been alleged, it is not, by way of referring section 23 and section 24 of the IPC, He submitted what is the meaning of wrongful loss and section 24, dishonesty. He submitted by way of referring these sections that the petitioner has not put the Government to any wrongful loss and no case of cheating under section 420 IPC against the petitioner is made out. He relied in the case of “Hari Sao and Another v. The State of Bihar”, 1969(3) SCC107. Paragraph nos.5,6 and 10 of the said judgment are quoted hereinbelow: “5. Under Section 415 of the Indian Penal Code a person is said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him, or to consent that he shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. There can be no doubt that the appellants had by deceiving the Station Master induced him to deliver a railway receipt which could be used as a valuable security; 20 but assuming that the appellants thereby induced the Station Master to make out the railway receipt it will still have to be shown that the making out of the receipt was likely to cause damage or harm to the railway or the Station Master. 6. We have therefore to examine whether the issue of the railway receipt with the endorsements “said to contain” and “S. W.A.” were likely to cause any damage to the railway. Under Section 58 of the Indian Railways Act the owner or person having charge of any goods which are brought upon a railway for the purpose of being carried thereon, has to deliver to a railway servant appointed in that behalf an account in writing signed by such owner or person and containing such description of the goods as may be sufficient to determine the rate which the railway administration is entitled to charge in respect thereof. This section casts an obligation on the owner or person having charge of goods to be carried by a railway to give a correct description thereof. Failure in this respect may, under sub-section (3) entitles the railway administration to charge in respect of the carriage of the goods at a rate not exceeding double the highest rate which may be in force at the time on the railway for any class of goods. Under Section 72 a person delivering to a railway administration goods to be carried by railway has to execute a note (forwarding note) in which the sender or his agent has to give such particulars in respect thereof as may be required. Section 73 provides for the general responsibility of a railway administration as a carrier of animals and goods except from any of the causes specified therein. But under the proviso to the section even in the case of loss, destruction etc. from any of the said causes, the railway administration is not relieved of its responsibility for the loss, destruction, etc., of the goods unless it proves that it has used reasonable foresight and care in the carriage of the goods. Under Section 74 where goods are tendered to a railway administration for carriage at a special reduced rate known as “the owner’s risk rate” then, notwithstanding anything contained in Section 73, the railway administration is not to be responsible for any loss, destruction, damage etc., from whatever cause arising, except upon proof that such loss, damage, destruction, etc. was due to negligence or misconduct on the part of the railway administration or any of its servants. Under Section 106 a person requested under Section 58 to to give an account with respect to any goods and giving one which is materially false may be punished with fine which may extend to Rs 150 for every 21 quintal or part of a quintal of the goods in addition to any rate or other charge to which the goods may be liable. 10. It appears to us that the false representation made by the appellants in obtaining the railway receipt in the form in which it was issued did not cast any additional liability on the railway and the issue of the railway receipt therefore was not likely to cause any damage or harm to the railway. No question of cheating the railway or the Station Master therefore arose in this case and the appeal must be allowed. The appellants are directed to be set at liberty. The fine, if paid, must be refunded. 11. He relying on this, submitted that in terms of section 415 of the I.P.C, no case of dishonesty by any person fraudulently or dishonestly has been made out against the petitioner. He referred to the statement of Mr. Pramod Kumar Fatepuria recorded by the prosecution and disclosed in the complaint petition and other witnesses. By way of referring the National Steel Policy of 2005, particularly, clause-7.48 regarding restrictions on the export of iron ore he submitted that it has been disclosed therein that export of iron ore with lower Fe content are free and do not need any license, relying on this, he submitted that only lower Fe has been exported by the petitioner that too, in the year 2010. He relied in the case of “Krishnanand Tripathi v. State of Jharkhand and Others”, 2012 SCC OnLine Jhar 198. Paragraph nos.3,4,5,6,9,10,11,12 and 13 of the said judgment are quoted hereinbelow: 3. In view of the above, it is submitted that the State Government has no jurisdiction to issue any direction or frame a Rule or to take a decision with respect to the subjects covered under List-I of Seventh Schedule of the Constitution of India, for which a declaration has been made by the Central Government. In addition to the above, sub-clauses (f) (k) & (1) of Clause (2) of Section 18 also deal with the arrangements for the storage of minerals and stocks thereof, that may be kept by any person and also the regulation of prospecting operation and also certain things in the interest of conservation of systematic development of minerals or for the protection of environment by preventing or controlling pollution which may be caused by prospecting or mining operations 22 and all those powers are conferred in the Central Government. Therefore, in view of the above provisions also, the State Government cannot and could not have issued such direction, so as to allow the sale of the fines. 4. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court, delivered in the case of 1998 (6) Supreme Today, 281 : ((1998) 6 SCC 476 : AIR 1998 SC 3052), wherein it has been held that the regulation is possibly not of sale of the minerals but also of removal of the mineral and, therefore, even if minerals are not removed from the mines after excavation or abstraction, even then the leaseholder is liable to pay royalty. Therefore, it is submitted that this is not a case where if the impugned order is set aside then there will be loss to the State Government in terms of the royalty. 5. Learned Advocate General vehemently submitted firstly; that as per the Public Interest Litigation Rules, 2002, the procedure has not been followed, either by the petitioner or by the High Court in listing the matter. It is submitted that as per the Rules, the writ petitioner is required to categorically state that he has no personal interest in the matter and the lis is in public interest litigation and he should also clearly indicate that what is the public interest. According to the learned Advocate General, in fact, it is a litigation instituted by a Member of Legislative Assembly, who himself could have raised the point in the Assembly if there was any public interest. However, according to the learned Advocate General, this petition is, in fact, against all interest of the State, so as to deprive the hundreds and thousands crores of royalty to the State. It is also submitted that, in fact, it is the petitioner who could have acted in public interest than to challenge the order staying the sale of the fines, which has been stayed by the order Annex-ure-B, annexed with the supplementary counter affidavit by the State whereby, by the executive order, even sale of the iron ore itself has been stayed in the matter of three companies i.e. Steel Authority of India, Tata Steel Ltd. and Usha Martin Ltd. The State only corrected the mistake which was committed by Annexure-B dated 11th December, 2009 and it was sent to the concerned authority on 17th December, 2009. It is also submitted that the writ petition lacks the material particulars with respect to the research made by the writ petitioner and about his credential also. Learned Advocate General submitted that the State Government has taken a conscious decision in view or the fact that one of the authority in the State of Jharkhand passed the stay order on sale of the fines and that too in relation to three 23 Companies out of 43 Companies and thereby, in fact, a discrimination has been done to these three Companies, which have been prevented from selling the fines; whereas others were allowed to continue to sell the fines. It is submitted that the Companies submitted representation to the competent authority, upon which the competent authority i.e., the office of Regional Controller of Mines issued a letter on 3rd February, 2010 (Annexure-A) indicating the problem caused because of the accumulation of the huge quantity of fines. The authority was of the view that because of the huge portion of the iron ore fines dumped on the hill slope in the western side of the Quarry No. 1 of the Company Usha Martin Ltd. a huge quantity of fines is being washed away to the virgin forest area in the hill slope below the quarry working and it has been opined that the above wash off fines from the fines stack is not only a potential danger to the forest growth in the hill slope below the said Quarry No. 1 but also to the loss of valuable mineral. The learned Advocate General again drew our attention to the opinion of the Office of the Regional Controller of Mines indicating the loss of valuable minerals. It is also submitted that even a large number of quantity have been shown in the said communication, which clearly indicates that a large quantity of fines have been accumulated and it has caused loss to the State Government. It is submitted that it is not only the loss to such lease holders but the same is also against the condition of the lease as given in Form ‘K’. prescribed by the Rules. It is clearly indicated that the lease holders have right to sell the minerals, including the fines and therefore, the State Government could not have imposed any restriction with regard to the sale of the fines and when, once restriction imposed by one executive order passed by an authority has been withdrawn and that has been withdrawn by the State Government, then, in fact, this is in consonance with the Act and the Rules framed thereunder and, therefore, unless the petitioner is able to show that there is any restriction under that Rule, no writ of mandamus could have been sought from this Court by the writ petitioner. Learned Advocate General further submitted that even if the impugned notification Annexure-2 is quashed, even then there will be no restriction against the sale of the fines or if there is a purported order Annexure-B of staying the sale of the fines then that would be, in fact, perpetuating the illegality committed by that authority, putting an embargo upon the sale of fines contrary to the statutory provisions made by the Central Government. The learned Advocate General also drew our attention to some relevant provisions of the 24 said Act and Rules, referred above, and again reiterated that, in fact, the State Government has no right to impose any condition or restriction by any order of staying the sale of the fines or any other materials and, therefore, the writ petition is wholly misconceived as well as a motivated litigation, to have the political mileage only. 6. Learned counsel for the respondent No. 5 vehemently submitted that the various provisions made under the above Act and Rules, which we have already referred, clearly indicate that under Section 5 of the Act, the scheme of mining is required to be approved by the Indian Bureau of Mines and this exercise is done periodically and for the period 2010–11 to 2014–15 such Scheme was approved by the Indian Bureau of Mines, wherein also in addition to prescribing of the rate of royalty under Schedule II of Entry 23 framed under Section 9 of the Act of 1957, it has been clearly provided that there will be a royalty on sale of the fines and in the mining plan also it is clearly stipulated that the respondent-Company itself shall have the right to sale and disposal of surplus ore on the rate prescribed at Table No. 16, according to grade and size specification of the materials of the Company M/s Usha Martin Ltd. Therefore, in view of Rule 33(6). Section 18(2) as well as statutory lease deed under Form K and in view of the binding character of the above Rules and Section 18(3), which binds all State Governments, and as per Rule 54. mining plan required under Rule 12(4), even if the present order passed by the State Government is not in consonance with the statutory provisions of law, empowering the State Government to pass such order, even then there is other order putting restriction of the sale of fines and contrary to it there are all other provisions referred above, including Form K containing specific condition empowering the lease holder to sale not only the minerals but authorizes specifically to dispose of the mineral and minerals. It is submitted that, in fact, fines is a particular type of commodity comes out in the process of the mining operation and that part of the fines which cannot be utilized for any purpose and if put in a particular type of process then that process may block the entire machinery therefore, fines are required to be sold and, therefore, the Companies had right to sell such fines. Learned counsel for the respondent No. 5 vehemently submitted that the respondent No. 5 Company has obtained a lease in the year 2005 and continued to sell the fine till 2009 upto the period when such restriction was imposed by the State authority, without any authority of law and not only this because of stacking of fines in huge quantity, in view of 25 the order passed by the subordinate authority, the mining authorities even threatened to cancel the mining lease of the respondent No. 5 and, therefore, a representation was submitted to the Central Government, upon which the respondent-Company was communicated vide letter dated 3rd February, 2010 that they should not violate Rule 13(1) of the MCDR, 1988, lest their mining lease can be cancelled. The learned counsel for the respondent No. 5 further drew our attention to the application for mining lease Annexure-R-5/1, wherein also under Clause (xix). it is clearly provided that in a case of use of mineral raised in a mining area by the respondent-Company and if it is for captive use then it is to be used according to Clause (xix)(a)(ii) and it has been provided thereafter “For sale for indigenous consumption” - only surplus ore, if any to be sold. It is clearly indicated that if the Company itself applied for permission to sale the surplus ore and has already pointed out that those cannot be utitized by the Company as its end product and it contain some condition of the mining which can be processed and can be converted into small portion for other use and when there is buyer then the lease holder under his statutory right created by virtue of the various provisions of the Act followed in Form ‘K’ has right to sale the fines. The learned counsel for respondent No. 5 also relied upon the judgment of Supreme Court, delivered in the case of Ramlal and Sons v. State of Rajasthan, reported in (1976) 1 SCC 112 : (AIR 1976 SC 54), wherein the Hon'ble Supreme Court held that where grant of mining lease was envisaged under definite statutory rules made in exercise of power conferred under Section 5 of the Mines and Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with those rules. The Hon'ble Supreme Court further held that it could not exercise a power in the matter of grant of mining lease unknown to the Rules. 9. Learned counsel for the Union of India submitted that the notification issued by the State Government is without approval of the Central Government as well as beyond the powers conferred upon the State Government. Learned counsel for the Union of India also relied upon the said provisions, which we have already referred, including Rule 54 of the Rules of 1988 and it has been submitted that some of the conditions imposed in the impugned notification are contrary to the statutory provisions as it has put certain restriction and selected certain parties for the purpose of obtaining the fines from the Companies. 10. Be that as it may, according to the State Government, Central Government and the private 26 Companies, the impugned notification issued by the State Government, which has been impugned by the writ petitioner, in fact, is though without any power conferred upon the State Government but at the same time by this notification nothing has been done so as to create cause of action for filing a Public Interest Litigation and only a mistake has been corrected. However, so far as powers of the State Government are concerned, they are governed by other provisions other than the referred above which empowers Central Government only to frame the Rules in relation to same subject matter for which the Rules have been framed. 11. We have considered submission of the learned counsel for the parties and gone through all relevant provisions of the law referred above. It is undoubtedly a declaration made by the Central Government under Section 2 of the Mines & Minerals (Development and Regulation) Act, 1957, whereby the Central Government has undertaken task to enact the law to control and regulate the mines and development of minerals, however to the extent provided under the Act of 1957. Whether the extent of the Act of 1957 covers the entire area for which dispute has been raised, is the core issue, because of the reason that we are not going into the preliminary objection raised by the Advocate General with respect to the maintainability of the present writ petition, in view of the basic reason that, prima facie, it is admitted by all the parties, by the State Government and Union of India as well as by the private parties that the power to frame Rules for such subject of protection of the environment in mining area and framing of the Rule vests in the Central Government and, therefore, when State Government came up with an order which has been issued by the Department of Mines & Geology of the State Government and, that too, under the heading of policy decision but without showing any of the provisions of law in which such Resolution was issued by the State Government and admittedly this order dated 27th August, 2011 is not an order of withdrawal of any earlier stay order granted against the sale of the fines but it is absolutely an independent Resolution in the form of policy decision and it contains permission for disposal of iron ore fines overburden and other waste materials of the captive iron ore mines. It also prescribed the size of the iron ore which shall be below 10 mm. We are conscious that even if the size of the iron ore fines has been prescribed by the Central Government then the State Government by this Notification could not have declared what shall be the size of the fines and the order of the Central Government 27 would prevail. Not only this, under Clause(2). following provisions have been made which appears to be beyond the authority and power of the State Government and for the purpose of clarity, we would like to quote this brief policy decision under the heading of amended Resolution dated 27th August, 2011, which is as follows: “2. The cabinet of Government of Jharkhand has taken a policy decision to lift the ban imposed upon the captive mine owners for disposal/sale of iron ore fines, overburden and other wastes materials in order to control pollution and protect the environment with the following conditions: a) Fines shall not be exported outside the country. b) Fines should be supplied on priority basis to industries operating within the State of Jharkhand, after the own consumption of the captive mine lease holder. c) Payment of royalty for iron ore fines will be made in accordance with the royalty as decided by Government of India from time to time for iron ore. d) One time and time bound disposal/sale of fines lying in Mining Lease Area/Stock Yard will be done. e) Fines being generated on a regular basis will have to be used (within the State) by increasing capacity for which approval on a time bound programme will have to be obtained from the department, after which only the permission for disposal/sale of the same under para-2 mentioned above will be granted. f) Disposal of iron ore fines, overburden and other wastes materials obtained during mining of iron ore should be ensured in a manner so as to avoid pollution to local environment.” 12. A bare perusal of sub-clause (2) of the said Policy decision, it is clear that the State Government has prescribed a condition which includes that fines shall not be exported outside the country and fines should be supplied on priority basis to industries operating within the State of Jharkhand, after the own consumption of the captive mines lease holder. Priority has been fixed in this area in the matter of sale and disposal of fines. Clause (d) & (e) also provide that there will be one time and time bound disposal/sale of fines lying in the Mining Lease Area/Stockyard and fines being generated on regular basis will have to be used within the State by increasing capacity for which approval on a time bound programme will have to be obtained from the department. So these restrictions imposed by this Resolution is contrary to even the argument advanced by the learned counsel for the respondents and, therefore, on technical ground of non- following the complete procedure in true spirit, we are not 28 inclined to dismiss the writ petition. 13. If we go into the merit of the case, then it is not in dispute that the Resolution of the State Government dated 27th August, 2011 being issued without authority of law and in contravention to the provisions of the Act of 1957 and Rules, wherein the powers have been separately given to only the Central Government in prescribing of the relevant Rules, including the provisions to be made which have been already made by the Central Government. However, it is a different issue, whether the petitioner can succeed in the writ petition. In view of the fact that if the argument of the learned counsel for the petitioner is accepted in toto then it was the duty of the writ petitioner to show that under which law the petitioner is seeking direction against the State Government so as to have a restriction against the sale of the fines. Annexure-2 dated 27th August, 2011, the alleged policy decision, if found to be illegal even then, as we have already noticed, there are all provisions under the Act and Rules, which clearly provided for complete procedure for sale of minerals and fines. The lease is granted to the lessee by the lessor to be executed by the State Government with the limited right of the State Government only to enter into lease agreement but without putting any condition by the State Government and the lease is required to be in prescribed form, as prescribed under Form ‘K’, which is, in fact, a statutory lease deed which prescribes statutory condition in the lease and in the Form ‘K’. Part-2 of Clause (1) specifically provided: “(1) Liberty and power at all times during the term hereby demised to enter upon the said lands and to search for mine bore, dig, drill for win work, dress, process, convert, carry away and dispose of the said mineral/minerals.” 12. He submitted that records and accounts regarding production and employees etc. have been kept in terms of iron ore mine lease agreement by the petitioner. He submitted that if the subsequent decision alters the old one, it does no make a new law. He relied in the case of “CIT v. Saurashtra Kutch Stock Exchange Ltd., (2008) 14 SCC 171. Paragraph no.35 of the said judgment is quoted hereinbelow: “35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the 29 “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 13. He further referred to the case of “Sharat Babu Digumarti” (supra) and relying on this, he again submitted that when special provision is there, the I.P.C and other Act will not apply. He referred to section 3 of Prevention of Money Laundering Act, 2002 (hereinafter to be referred to as the 'Act of 2002') and submitted that offence of money laundering has been defined therein that directly or indirectly attempts to indulge or knowingly assists or knowingly is a party and concealment possession, acquisition and untainted property are to be held guilty of offence of money laundering. The petitioner has not done any wrong indirectly or directly and thus, the cognizance under the Money Laundering Act is bad in law. He further referred to section 2(1)(u) and submits that the “proceeds of crime” means any property derived or obtained, directly or indirectly, in terms of criminal activity only will come under that Act. He submitted that under section 2(1)(y) the scheduled offence has been described at Part -A and Part-B and by way of referring this schedule, he submitted that nowhere in the schedule the Act of 1957 has been mentioned and thus, Money Laundering Act will not apply. To buttress his this argument, he relied in the case of “P.Chidambaram v. Directorate of Enforcement”, (2019) 9 SCC 24. Paragraph no.24 of the said judgment is quoted hereinbelow: 24. Chapter II of PMLA contains provisions relating to the offences of money-laundering. Section 2(1)(p) of PMLA defines “money-laundering” that it has the same 30 meaning assigned to it in Section 3. Section 2(1)(ra) of PMLA defines “offence of cross-border implications”. To prevent offences of “cross-border implications”, PMLA contains Sections 55 to 61 dealing with reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property between the contracting States with regard to the offences of money-laundering and predicate offences. 14. He submitted that in view of this, that even in view of subsequent amendment the Act of 1957 has not been made schedule. On these grounds, he submitted that the entire proceeding including the order whereby summons have been issued against the petitioner is bad in law. He further submitted that the order of the learned court summoning the accused must reflect that he has applied his mind that too, on the satisfaction and it was the duty of the court as it is not the post-office to pass an order in a routine manner. He relied in the case of “Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others”, (2019) 16 SCC 610. Paragraph nos.33,34 and 35 of the said judgment are quoted hereinbelow: “33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under: (SCC p. 430, para 22) “22. … The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and 31 when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self- respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” (emphasis supplied) 34. In Pepsi Foods Ltd. v. Judicial Magistrate, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para 28, it was held as under: (SCC p. 760) “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option 32 Trust v. India Infoline Ltd. 35. To be summoned/to appear before the criminal court as an accused is a serious matter affecting one’s dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank v. Surendra Prasad Sinha, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment.” 15. He further submitted that section 190 and 200 to 204 of the Cr.P.C are required to be carefully examined before issuing summon order against any accused and corporate criminal liability can be imputed to the company based on principal of 'alter ego' and reverse application of principle is not permissible. He relied in the case of “Sunil Bharti Mittal v. C.B.I”, (2015) 4 SCC 609 and submitted that application of mind is necessary and satisfaction about the allegation, if proved, would constitute an offence. He referred to paragraph no.48 of the said judgment, which is quoted as under: “48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.” 16. On these grounds, Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner submitted that the Act of 1957 is a 33 special act and it is a complete code and in that view of the matter, the IPC and other Act will not apply. According to him, the summoning order is a non-application of mind and in view of the judgment he has referred (supra) and the entire proceeding including the order taking cognizance is fit to be interfered by this Court in the interest of justice. 17. Per contra, Mr. A.K. Das, the learned counsel appearing on behalf of the Opposite Party submitted that the C.B.I has registered R.C.No.220 of 2016 under section 120B and 420 of the IPC. The prosecution vide Complaint Case No.ECIR No.02/2021 dated 20.05.2021 filed against the petitioner through its authorized representative and one another filed before Special Judge-I, C.B.I.(A.C.B.)-cum-PMLA Ranchi under section 44 & 45 of PMLA, 2002. The learned Special Judge, PMLA, Ranchi has taken cognizance on 20.05.2021 of the Complaint filed for prosecution of the accused persons involved in the offence of money laundering, punishable under section 4 of PMLA, 2002 and confiscation of properties acquired out of proceeds of crime. Original Complaint No.1187 of 2019 in the instant case has been filed before the learned Adjudicating Authority under the PMLA, New Delhi wherein learned Adjudicating Authority was pleased to confirm the said Original Complaint in respect of Provisional Attachment of the properties worth Rs.190 Crores vide Order dated 10.01.2020. He submitted that the accused persons are not entitled for any relief at this juncture and may be directed to appear before the learned Special Court, PMLA, Ranchi. He further submitted that the petitioner along with its official has been arrayed as accused persons since they have been responsible for the illegal export of iron ores which were meant for the captive utilization within the state for economic development and by the illegal export of iron ores, the purpose for which mining lease was 34 recommended in favour of the petitioner was defeated. He further submitted that the enquiries that have been conducted so far in respect of the officials of the Department of Mines, Government of Jharkhand has not revealed any such inference that may lead to filing of the case under Prevention of Corruption Act (P.C.Act) against them. He further submitted that grant of Ghatkuri Mines to M/s Usha Martin Ltd. was on the basis of recommendation that the user agency would use mined produce for captive utilization in its own plant which has been undertaken by the petitioner in its application dated 19.01.1998 that it would use the iron ores in its own plant and not export the same. He further submitted that the Ores/Fines/Fe content has been disclosed by the petitioner unit as per its own convenience and the petitioner was not supposed to sell/export the mining produce as per the allocation of the mining lease. He further submitted that in the investigation under the PMLA, it is revealed that the data relating to export of mining produce has not been disclosed to the Indian Bureau of Mines/Mining Department and no document relating to permission obtained from the concerned Government Authorities, regarding sale and export of iron ores were produced before the investigating agency and even during the statement recorded under section 50 of the PMLA, the G.M, Marketing and Commercial of the petitioner has admitted that no any such permission/approval had been taken from the concerned authority. He submitted that just after the granting of lease, petitioner started export of iron ores from the year 2006 itself which is against the undertaking. Mr. Das, the learned counsel further submitted that non-disclosure of promising and acting against the undertaking it clearly indicates mens rea at the time of furnishing false application by the petitioner. He referred to section 3 of the Act and submitted that the Enforcement Directorate is 35 not barred from conducting any investigation even if the C.B.I or any other agency concludes its investigation or files charge-sheet for commission of scheduled offence. He submitted that the proceeding under the Act is completely separate. He took the Court to scheduled offence as prescribed under section 2(1)(y) of the Act and submitted that in the description of offence, section 120B, 420, 421 and 422 are there and in view of these sections and considering that the C.B.I has instituted the case under these sections, the argument of the learned Senior counsel appearing for the petitioner is not sustainable and in the scheduled Act those sections are there and thus, the authorities concerned are having the power. He further submitted that in section-8 of P.C.Act, 1988 describes about the offence relating to bribing a public servant which is also within the schedule of section 2(1)(y) of the Act and section 13 of the said P.C.Act, criminal misconduct by a public servant. He submitted that under section 17 of the 2002 Act search and seizure power is prescribed and in section 18 of the said Act, mode of search of person has been provided. 18. He referred to complaint petition contained in Annexure-1/1 at page 83 of the Cr.M.P petition and he submitted that the C.B.I case has been disclosed in paragraph no.1. By way of referring the statement of Pramod Kumar Fatepuria in Para 7.1 of the complaint he submitted that this petitioner exported iron ore to China during the period 2008-09, 2009-10 total quantity 2,54,824 DMT totally valued at USD 1,45,89,276.58 equivalent Indian Rs.70,69,67,928/-. He further submitted that he has also admitted that export proceeds has been realized in Account No.(1) 10373629382 of the State Bank of India, CAG Branch, Kolkata and (2)10373631970 State Bank of India CAG Branch, Kolkata. He further referred to the statement of Rajiv Jhawar, Managing Director 36 of the petitioner and submitted that he has evaded most of the questions by answering 'I do not know' and he has revealed that Pramod Kumar Fatepuria looked after exports and he was over-all incharge of the matters relating to export. He also referred to statement at Paragraph 7.3 of Mr. Devashish Mazumdar, President of Works of the petitioner who has admitted that the petitioner has given undertaking in bond paper that iron ore will be used in captive plant only. He also referred to the statement at Paragraph no.7.4 of Inderdeo Paswan, the then Director of Mines, Jharkhand and of Mr. Pravin Kumar Jain, Joint Managing Director, Wire and Wire Rope Division of the petitioner. He submitted that Pravin Kumar Jain has also admitted that the petitioner has exported iron ore fines for total quantity 2,54,824 DMT during the period 2008-09, 2009-10 and has also admitted that all export proceeds have been realized. The statement of Rajiv Jhawar as per para 7.6 by Anirban Das Sanyal, Chief Finance Officer and Chief Operating Officer at paragraph 7.7. He submitted that disclosure made in Form-I has been disclosed at paragraph 9.3 of the petition and in column xix(a)(ii) of the said application the petitioner submitted that they may sell iron ore indigenously only if there is surplus ore. By way of referring the statement of the officers of the petitioner, he submitted that they have admitted that export has taken place in the aforesaid manner and pursuant thereto the said case has been filed and there is no illegality. He referred to section 23 of the I.P.C. He submitted that a person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. He submitted that the petitioner has entered into that lease agreement with Government 37 providing the undertaking and in violation of the undertaking the petitioner has exported the iron ore and in view of section 23 IPC wrongful gain is made out against the petitioner and the lease was granted to the petitioner that he will generate employment in the State of Jharkhand. He submitted that the Act of 1957 has been considered by the Hon'ble Supreme Court in the case of “State (NCT of Delhi v. Sanjay” and analogous cases, (2014) 9 SCC 772. Paragraph nos.69, 70, 71 and 72 are quoted hereinbelow: “69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act 38 and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.” 19. Relying on this judgment, he submitted that the Hon'ble Supreme Court has considered section 22 and came to the conclusion that the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. By referring this, he submitted that the contention of the petitioner with regard to special Act is not tenable as the case against the petitioner has been made out. He further submitted that the Act of 1957 and the I.P.C have been again considered by the Hon'ble Supreme Court in the case of “Kanwar Pal Singh v. State of Uttar Pradesh and Another”, (2020) 14 SCC 331. Paragraph nos.10, 12 to 13 are quoted hereinbelow: “10. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the MMDR Act, 1957 and the offence under Section 379 IPC, it was observed in Sanjay: (SCC pp. 811-12, paras 69-72) “69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only 39 change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code. 72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State’s possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such 40 persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) CrPC.” 12. We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 IPC as sand is an immovable property as per Section 3(26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. (See Explanation 1 to Section 378 IPC and Sanjay6 as quoted above.) 13. We would in the end refer to the judgment in Jeewan Kumar Raut2 on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in ICAI22 by observing that the provisions of the Transplantation of Human Organs Act, 1994 (“the TOHO Act” for short) were different and were not similar to the provisions of sub- section (2) of Sections 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non obstante clause. We would like to further elucidate and explain that in Jeewan Kumar Raut this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) of Section 167 CrPC on the ground that the Central Bureau of Investigation (“CBI” for short) had failed to file the charge- sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein viz. offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 CrPC as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of the said Act, which would prevail over the provisions of CrPC. Reference was made to clause (iv) of 41 sub-section (3) of Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the MMDR Act, 1957 i.e. the Mines and Minerals (Development and Regulation) Act, 1957.” 20. He further submitted that there is no illegality in the summoning order as the learned court has discussed everything and thereafter has come to the prima-facie conclusion and there is no illegality in the summoning order. He further submitted that the points raised by the learned Senior counsel appearing on behalf of the petitioner are not required to be considered at this stage by this Court as these are the subject matter of trial. On these grounds, he has submitted that the petition is fit to be dismissed. 21. In reply to the arguments of Mr. A.K.Das, the learned counsel for the Opposite Party, Mr. Sidharth Luthra, the learned Senior counsel appearing on behalf of the petitioner submitted that in the F.I.R lodged by the C.B.I charge-sheet has not been submitted as yet and in a haste only to harash the petitioner the present case has been lodged. He repeated his argument that in the schedule of offences of the Act of 2002 MMDR Act is not attracted. He submitted that there is no breach of any law and license and he relied in the case of “East India Commercial Co., Ltd., Calcutta and Another v. Collector of Customs, Calcutta”, (1963) 3 SCR 338 and referred to paragraph no.36 of the said judgment, which is quoted as under: “36. It follows from the above that the infringement of a condition in the licence not to sell the goods imported to third parties is not an infringement of the order, and, therefore, the said infringement does not attract Section 167(8) of the Sea Customs Act.” 22. He further submitted that jurisdictional fact is a fact which 42 no authority can confer upon itself, which it otherwise does not possess. To buttress this submission, he relied in the case of “Arun Kumar and Others v. Union of India and Others”, (2007) 1 SCC 732. Paragraph nos.74, 75 and 76 of the said judgment are quoted hereinbelow: “74. A “jurisdictional fact” is a fact which must exist before a court, tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency’s power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 75. In Halsbury’s Laws of England, it has been stated: “Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive.” 76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction.” 23. He further submitted that it is well settled that if initial action is not in accordance with law, the second will not survive. To buttress this submission, he relied in the case of “State of Punjab v. Devinder Pal Singh Bhullar and Others”, (2011) 14 SCC 770 and referred to paragraph 107 of the said judgment which is quoted hereinbelow: “107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opus meaning thereby that foundation being 43 removed, structure/work falls, comes into play and applies on all scores in the present case. 24. On these grounds, he submitted that contention of the learned counsel appearing on behalf of the Opposite Party is not tenable and the petitioner has not been able to make out the case for interference. Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner submitted that the judgment relied by the learned counsel appearing on behalf of the Opposite Party are not applicable in the facts and circumstances of the present case. 25. In the light of the above facts and submissions of the learned counsels appearing on behalf of the parties, the Court had gone through the materials on the record. It is an admitted fact that C.B.I case was filed in the year 2016 in which the charge-sheet has not been submitted as yet the authority concerned had filed petition at Patna wherein the Hon'ble Patna High Court has held that the State of Bihar has got no jurisdiction for the said complaint and directed to return the complaint copy to the complainant and thereafter the case in hand has been filed at Ranchi. There is no doubt that the petitioner's lease is being governed under the Act of 1957. The provisions placed by Mr. Luthra, the learned counsel appearing on behalf of the petitioner under the said Act are statutory in nature and action under that Act is open to be taken by the authority prescribed under that Act. The relevant sections and the rules have already been noted hereinabove in the light of the submissions of Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner. The application of special law and the Indian Penal Code are well settled as has been argued by the learned counsel appearing on behalf of the petitioner. But, it must be in the facts and circumstances of each case. Section 2(1)(y) of the Act of 2002 defined the scheduled offences under the Act in Part-A and Part-B and in the schedule section 44 120B and section 420 are provided. Thus, it cannot be said that cheating is not prescribed under the scheduled of section 2(1)(y) of the Act. It is an admitted fact that the C.B.I has registered the case under section 120B and 420 of the IPC. On perusal of the complaint petition, none other than the officers of the petitioner have admitted about export of iron ore and Rajiv Jhawar has evaded most of the questions and made allegation against Fatepuria that he was the incharge of export. In view of own admission of the officers of the company about the export, at this stage, it cannot be held that the petitioner was not exported the iron ore. Moreover, when undertaking to that effect has been submitted by the petitioner that iron ore will be used for own industry only. 26. Explanation to section 3 of P.M.L.A Act which has been added later on stated that process or activity connected with proceeds of crime continues till such time a person is directly or indirectly enjoying the proceeds of the crime, accordingly the entire process/activity connected to the proceeds of crime is a continuing offence. This has been considered by this Court in the case of “Hari Narayan Rai v. Union of India and Others”, W.P.(Cr.) No.325 of 2010 decided on 06.08.2010 under PMLA Act, 2002, in Section 24(a) of the Act of 2002 provides that in the case of persons charged with the offence of money laundering under section 3, the authority or the court shall unless a contrary is proved presume that such crime are involved in money laundering. At this stage, this Court is required to look into the allegation and not with the consideration whether the allegation will ultimately be proved or not. There are allegations in the complaint which have been admitted none other than the officers of the petitioner-company that the export has taken place and the amount disclosed therein have been credited in the two accounts of the petitioner. It is well settled that merely because 45 offence was committed during the course of commercial transaction would not be sufficient to hold that the complaint did not warrant a trial. This is required to be decided on the basis of the evidence to be led at the trial in the complaint case. In the background of this case, no case of cutting-down the criminal trial has been made out. In view of the allegations in the complaint it cannot be said that the trial if conducted would be an empty formality. The Hon'ble Supreme Court in the cases of “State (NCT of Delhi) v. Sanjay ” and “Kanwar Pal Singh v. State of Uttar Pradesh and Another” (supra) considering the Act of 1957 has held that section 22 of the Act is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. Thus, the argument of special Act of Mr. Luthra, the learned Senior counsel appearing on behalf of the petitioner is negated by this Court. The argument of Mr. Luthra, the learned Senior counsel appearing for the petitioner with regard to 1214 pages have been said to be looked into by the learned court, and at this stage, not required to be considered in view of the fact that the reasoned order has been passed by the learned court whereby summon has been issued and the reasons of returning back those documents for safe custody has been discussed in the summon order itself and this argument is also negated. The judgment relied by Mr. Luthra, the learned Senior counsel in the case of “Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Limited (supra) regarding principle of law to be applied retrospectively is well settled and is not helping the petitioner. The judgment relied by Mr. Luthra, the learned Senior counsel in the case of “Sharat Babu Digumarti v. Government (NCT of Delhi)”(supra) was arising out of Information Technology Act, 2000 and considering sections 67, 67A and 67B of the said Act, the Court 46 held that when provision under Special Act is there I.P.C will not apply. In the case in hand, the schedule offence in terms of section 2(1)(y) is there, and thus, this judgment relied by the learned counsel appearing on behalf of the petitioner is not helping the petitioner. The judgment relied by Mr. Luthra, the learned counsel appearing for the petitioner in the case of “Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others” and in the case of “Sunil Bharti Mittal v. C.B.I” (supra) not in dispute and it is well settled that summoning a person as accused in a criminal proceeding seriously affects ones dignity and personal reputation in the society, it is well settled, however, in the case in hand, the learned court has discussed minutely about the allegations made against the petitioner and thereafter has taken cognizance. In the light of the discussions made in the summoning order of the learned court, these judgments are not helping the petitioner. The judgment relied by Mr. Luthra, the learned Senior counsel in the case of “Arun Kumar and Others v. Union of India and Others” (supra) was on the point assuming power without jurisdiction. In the case in hand, the authority concerned was having the power in terms of the Act of 2002 and the offence is described in the schedule of section 2(1)(y) of the Act of 2002 and this judgment is not helping the petitioner. In the case in hand, it cannot be said that at this stage, in absence of trial where the facts are hazy when initial action itself was not inconsonance with law thus, the judgment relied by the learned Senior counsel appearing for the petitioner in the case of “State of Punjab v. Devinder Pal Singh Bhullar and Others” (supra) is on the other facts and circumstances. The judgment relied by the learned Senior counsel for the petitioner in the case of “East India Commercial Co., Ltd., Calcutta and Another v. Collector of Customs, Calcutta” (supra) is on the point of consideration on the point of section 415 of the I.P.C 47 and section 420 I.P.C and in the particular facts of that case. The Hon'ble Supreme Court has held that no case has been made out wherein in the case in hand, the petitioner after providing the undertaking has exported the iron ore which has been admitted by the officers of the petitioner- company which has been discussed in the complaint petition, this judgment is also not helping the petitioner. 27. The natural resources belong to the people but the State legally owns them on behalf of the people, it is has been considered by the Hon'ble Supreme Court in the case of “Centre for Public Interest Litigation v. Union of India”, (2012) 3 SCC 1. Paragraph nos.74 and 75 of the said judgment are quoted hereinbelow: “74. At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. 75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to 48 generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.” 28. Moreover, it is crystal clear that the object of exercise of power under Section 482 Cr.P.C. is to prevent abuse of process of Court and to secure ends of justice. The exercise of extraordinary jurisdiction is an exception, but not a rule of law. There is no straitjacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Court requires to be very cautious while exercising jurisdiction under Section 482 Cr.P.C. The expression 'cognizance' has not been defined in the Code. Cognizance merely means 'become aware of' and when used with reference to Court or a Judge, it cannot 'to take notice of judicially'. In the case of “Nupur Talwar v. C.B.I.”, reported in (2012) 2 SCC 188, the Hon'ble Supreme Court held that the Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. Paragraph 21 of the said judgment is quoted herein below: “21. We feel constrained to observe that at this stage, this Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice.” 29. The Hon'ble Supreme Court has considered sections 190, 204 and section 397 of the Code in the case of “State of Gujarat v. Afroz Mohammad Hasanfatta”, (2019) 20 SCC 539. In paragraph nos.51 to 54 49 of the said judgment, it has been held, as under: “51. While hearing revision under Section 397 CrPC, the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge-sheet and the materials produced thereon when the Magistrate was satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge-sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with. 52. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge-sheet, number of materials like statement of witnesses, bank statement of the respondent-accused and his company Nile Trading Corporation and other bank statement, call detail records and other materials were placed. Upon consideration of the second supplementary charge-sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction. 53. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside. 54. In the result, the impugned order passed by the High Court of Gujarat in Afroz Mohammed Hasanfatta v. State of Gujarat dated 3-5-2017 is set aside and this appeal is allowed. The order of the Magistrate taking cognizance of the second supplementary charge-sheet dated 15-11-2014 in Criminal Case No. 62851 of 2014 for the offences punishable under Sections 420, 465, 467, 50 468, 471, 477-A and 120-B IPC and issue of process to the respondent-accused shall stand restored. The respondent- accused is directed to appear before the trial court on 27.02.2019 and the trial court shall proceed with the matter in accordance with law.” 30. That petitioner and other persons are also made accused for bribing the then S.P., C.B.I, New Delhi for the disposal of case in its favour and for that charge No.8/2020 dated 27.11.2020 the bribery case has been filed by the C.B.I, New Delhi which has been disclosed in paragraph No.11 of the counter affidavit. 31. The learned court is required to be satisfied about the sufficient grounds to proceed on the basis of prima facie evidence in the charge-sheet and other documents filed by the police. 32. In view of the above facts and the discussions made hereinabove and considering that the facts of the case are voluminous, as the Court is not required to make a roving enquiry, and discuss the evidences for coming to a conclusion that no prima-facie case is made out, at this stage, which is against the mandate of law, accordingly, Cr.M.P. No.1334 of 2021 is dismissed. 33. Interim order dated 05.08.2021 is vacated. 34. I.A., if any, stands disposed of. ( Sanjay Kumar Dwivedi, J) Jharkhand High Court, Ranchi Dated : 03/11/2021 SI/ N.A.F.R., "