24 Aug 2023 11:15 AM GMT
The Jharkhand High Court has directed the Central Bureau of Investigation (CBI) to probe the illegal mining, and intimidation in Sahibganj district. The case involves serious charges against influential individuals linked to the illegal stone mining trade.Justice Sanjay Kumar Dwivedi asked the CBI to complete the preliminary inquiry and submit the report within a month while observing,“It...
The Jharkhand High Court has directed the Central Bureau of Investigation (CBI) to probe the illegal mining, and intimidation in Sahibganj district. The case involves serious charges against influential individuals linked to the illegal stone mining trade.
Justice Sanjay Kumar Dwivedi asked the CBI to complete the preliminary inquiry and submit the report within a month while observing,
“It goes without saying that such enquiry cannot be ordered as a matter of routine or merely because a party makes an allegation and if after considering the materials on records the Court concludes that such materials disclose that prima facie case calling for investigation by the C.B.I, the Court can pass necessary order and in light of that, several judgments have been discussed hereinabove and one of the celebrated decision of the Hon’ble Supreme Court is the case of State of West Bengal and Others v. Committee on Protection of Democratic Rights and Others(supra).”
The petitioner, a member of a scheduled caste, filed a complaint alleging that illegal stone mining had been ongoing in his village for the past 2 ½ years orchestrated by a group involved in the stone mafia, in partnership with government officials, including those from the district's mining department. These activities included the use of heavy machinery and even explosives, resulting in damage to village houses.
The petitioner had reported this illegal activity on multiple occasions to the district collectorate, the Deputy Commissioner, and the Mining Officer. On 02.05.2022, when the petitioner and others visited the mining site around 11:00 p.m., they witnessed several individuals engaged in illegal mining. One of them was accompanied by a government bodyguard armed with an A.K.-47 rifle, and other individuals were also carrying firearms.
The presence of heavy machinery and trucks provided sufficient lighting for the identification of the accused persons. The situation escalated into a physical assault and threats against the petitioner. Pankaj Mishra used his influence, citing government connections, to intimidate the petitioner and other villagers. During this chaotic event, the petitioner narrowly avoided being hit by a bullet.
The complaint was submitted as an affidavit, and the court issued an order on 07.07.2022 to register an FIR. However, the FIR was officially lodged on 01.12.2022, over 4 ½ months after the court's directive. Notably, this delay occurred in a case involving serious allegations against an individual purportedly close to high-ranking officials, including the Deputy Commissioner and Mining Officer of Sahibganj District.
The court noted that the investigation into the matter appeared to be focused solely on the SC/ST (Prevention of Atrocities) Act, ignoring the broader allegations of illegal mining and government officials' involvement. The court criticised the delay in filing the FIR and the lack of effective action against ongoing illegal mining despite substantial evidence.
The counter affidavit revealed that the individuals suspected in the ECIR Case had a history of engaging in activities related to the proceeds of crime and illegal mining sites. Their association with political figures like Pankaj Mishra and others had surfaced during the investigation.
Additionally, the Court noted that Pankaj Mishra exerted significant influence as the MLA representative of the Jharkhand Chief Minister. His direct involvement in illegal mining activities within Sahibganj and nearby regions came under scrutiny. Pertinently, Pankaj Mishra had already been apprehended under the Prevention of Money Laundering Act (PMLA) and was presently in custody.
The Court noted that Pankaj Mishra held control over unlawful stone mining and its transportation in Sahibganj. This issue attracted serious attention from the National Green Tribunal in New Delhi due to its implications for illegal mining in Sahibganj. Notably, during the period of July 25, 2022, to July 29, 2022, various mining sites had been inspected. Intriguingly, the findings from these inspections aligned with the content of the FIR at the center of the current writ petition.
With respect to ECIR Case No.7 of 2023, a request was made to the Superintendent of Police, for relevant information regarding cases registered at different police stations within the district. This request, dated June 1, 2023, was fulfilled by the Superintendent of Police. The FIR's contents pointed out instances of illegal transportation of stone chips and other aggregates, leading to multiple seizures of these minor minerals. However, the investigation seemed confined to confiscating trucks and attributing ownership of both the trucks and the seized stone aggregates solely to the drivers.
The court emphasized, “It has been disclosed that Pankaj Mishra is a powerful person and he is enjoying political patronage assistance and that is why the investigation is not being done in correct perspective.”
“In view of the above discussion, the Court finds that there are sufficient materials of illegal mining in the district of Sahibganj that too on the behest of one Pankaj Mishra and others and if such materials are there on the record, the Court finds in view of the counter affidavit filed by the respondent State of Jharkhand that the investigation is only an eye-wash so far the illegal mining is concerned,” the court added.
The court noted that an Interlocutory Application was filed by the petitioner for withdrawal of the writ petition, however, it was rejected by the court due to suspicions of external influence and threats. The petitioner also alleged that he was compelled to withdraw his writ petition, and he claimed threats from certain individuals, indicating potential interference with the legal process and sought protection.
Furthermore, the court highlighted that the petitioner had been accused in two cases under the Arms Act when the complaint filed by the petitioner was moved to the Additional Sessions Court to initiate the process of registering a FIR and led to the petitioner's detention in jail. The court took note of the fact that during this period, the petitioner's Vakalatnama of the Sahibganj Jailor on the instruction of the Pririvikar, the present writ petition was filed and all of a sudden, the said I.A. was filed indicating the presence of individuals working behind the scenes, seemingly attempting to coerce the petitioner into withdrawing the writ petition, which prompted the court to direct the State to protect the life and liberty of the petitioner.
The court said that the attempt to withdraw the writ petition via a new Vakalatnama, following an earlier attempt backed by an NOC, was unjustified. It perceived a pattern to obstruct the Enforcement Directorate's actions by emphasizing that the absence of proven proceeds of crime could weaken the ED's case.
The court, while citing the Jharkhand High Court Rules of 2001, underscored that in criminal cases, the accused are prohibited from submitting affidavits; only authorized representatives are allowed to swear affidavits. In the present case, the petitioner was in judicial custody during the filing, which is why the Vakalatnama was certified by the Jailor of Sahibganj Jail.
The court held, “The affidavit between the parties have already been exchanged and only on the ground of technicality, this Court cannot restrain itself in rendering justice while exercising its power under Article 226 of the Constitution of India being a Court of writ jurisdiction and accordingly, this contention of Mr. Sachin Kumar, the learned A.A.G.-II appearing on behalf of the respondent State with regard to affidavit is hereby negated by this Court.”
Drawing from precedents, the Court concluded that it has the authority to transfer cases to the CBI, if it deems it necessary for a fair investigation. It cited various judgments that establish the court's role in upholding the truth and ensuring a just investigation. The Court stated that its intervention is necessary when a suspicion arises regarding the investigation's fairness.
The Court observed that in the case in hand, prima facie, it appeared that the petitioner was being forced to withdraw the present writ petition which was denied by the Court and that the case about the illegal mining was tried to be lodged by the petitioner which was not registered by the police, he filed the complaint before the Additional sessions Court which had directed him to register the FIR under section 156(3) Cr.P.C.
“In the counter affidavit filed by the respondent State, there is no averment with regard to the investigation on illegal mining and in the entire counter affidavit, it has been disclosed that the Technical Cell was directed to investigate about the mobile number and it was found that the location of that mobile which is happened to be of the petitioner was of Banguluru wherein the Enforcement Directorate has found about the said mobile is of one Binod Prasad who is a resident of Bangaluru which suggest that the police is shielding the main persons who are behind the illegal mining,” the Court said
The court was lastly faced with the question of whether it could ignore such information brought before it, to which the court's response was a resounding "no." The court emphasized that a fair and unbiased inquiry or investigation is expected by the general public.
“Once the preliminary enquiry is completed and report to that effect is submitted, the Director, C.B.I shall be at liberty to choose further course of action in accordance with law. If the Director, C.B.I comes to the conclusion that there is no reason to proceed further in the matter, he may pass appropriate order to that effect,” the court directed while allowing the petition.
Case Title: Bijay Hansda vs. The State of Jharkhand and Others
Case Citation: 2023 LiveLaw (Jha) 30
Case No.: W.P.(Cr.) No. 665 of 2022
For the Petitioner: Mr. S.S. Choudhary, Advocate Mr. Ashish Kumar Thakur, Advocate
For the State: Mr. Sachin Kumar, A.A.G.-II Mr. Manoj Kumar, G.A.-III
For the Enforcement Directorate:- Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, A.C to A.S.G.I.
Click Here to Read/Download Order