In Broad Son Commodities Private Ltd. through its authorised signatory Santosh Kumar vs The State of Bihar Principal Secretary, Home & Ors. (2025), the petitioner had prayed before the Patna High Court for issuance of an appropriate writ, order or direction in the nature of certiorari for quashing Bihta P. S. Case of 2021 registered on September 17, 2021 for alleged offences under Sections 379 and 411 of the Indian Penal Code and Rule 39 and 56 of the Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation and Storage) Rules, 2019 on the ground that the same is completely illegal and without any authority of law. It sought an appropriate writ, order or direction in the nature of mandamus commanding the respondents No.1 not to take any coercive steps against the petitioner. He prayed for holding that no cognizable offence is made out against the petitioners as per the contents of First Information report and therefore the petitioner cannot be subjected to criminal prosecution.
The petitioner has sought relief in 15 other cases which were clubbed together and heard together. Justice Arun Kumar Jha bench of the High Court clarified that "core allegations as set out through different FIRs are mostly same, therefore, the pleadings made in Cr.W.J.C. No.501 of 2021 pertaining to Bihta P.S. Case No.864 of 2020 registered in the district of Patna is being referred and considered as to discuss the factual aspects of these cases." There were 16 FIRs and writ petitions on similar allegations.
The other eight respondents were: Principal Secretary, Home, Government of Bihar, Director General of Police, Bihar, Superintendent of Police, Bhojpur, Officer In Charge, Sahar Police Station, Bhojpur, Principal Secretary, Mines and Geology Department, Bihar, Assistant Director, Mines and Geology Department, Bihar, District Magistrate Cum Collector, Bhojpur and Mines Inspector, District Mining Office, Bhojpur.
The background of the case is that a co-ordinate Bench of the High Court had reserved the judgment on September 28, 2022 but, before the pronouncement of judgment, on November 2, 2022, the Court came across its earlier judgment in the case of M/s Broad Son Commodities Pvt. Ltd. vs. The State of Bihar and Ors. reported in 2018(4) PLJR 706 and judgment of the Supreme Court in the case of Jayant and Ors. vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, State of Delhi (NCT) vs. Sanjay reported in (2014) 9 SCC 772 which had a bearing upon the adjudication process and, therefore, the counsel for the parties were given opportunity to address the Court in reference to these judgments. On November 4, 2022, the Single Judge reiterated its earlier view, in view of the judgment of Supreme Court in the case of State of Delhi (NCT) vs. Sanjay and Jayant and Ors. vs. State of Madhya Pradesh, that no fault may be found with lodging of the F.I.Rs. in these cases and investigation into these cases need not be interfered with at this stage. The co-ordinate Bench expressed it’s inability to agree with the views expressed by the another co-ordinate Bench of the High Court in the case of Mithilesh Kumar Singh vs. State of Bihar and Anr. (Cr.W.J.C. No. 540 of 2019) and also in Cr.W.J.C. No.1233 of 2021 (Aditya Multicom Private Ltd. Vs. The State of Bihar & Ors.) disposed on April 7, 2022.
In order to make the diverse opinion of the Court consistent with the law and the judicial pronouncements of the Supreme Court on the subject, the co-ordinate Bench of this Court referred these matters to the Division Bench on the following issues:-
(i) Whether Section 22 of the MMDR Act of 1957 read with Rule 56 of the Rules of 2019 may be interpreted so as to read a bar on lodging of the FIR alleging commission of offences of theft etc. under the provisions of the Indian Penal Code against a licensee in the matter of excavation of sand from the river beds from an area beyond or contrary to the mining plan and in violation of the Environment Clearance, on the face of Clause (v) under sub-rule(7) of Rule 56 and the judgments of the Supreme Court in Sanjay's case and Jayant’s case.
(ii) Whether the alleged thieving sale of sand from the stock license point without issuing pre-paid E-Challan and thereby causing huge revenue loss to the State Exchequer and unlawful gain to the petitioners may be subjected to an investigation by Police by way of a police case registered for the offences under Sections 379, 411, 406 and 420 IPC ?
(iii) Whether the judgments of the learned co-ordinate Benches in the case of Mithilesh Kumar Singh (supra) and M/s Aditya Multicom Pvt. Limited vs. The State of Bihar & Ors. (Cr.W.J.C. no. 1233 of 2021) are per incurium for not noticing the earlier judgment of a Bench of equal strength, hence not laying down a correct statement of law?
7. After hearing the learned counsel for the parties, the Division Bench of the High Court vide order dated February 9, 2024 answered the reference in para-26 in the following manner:-
“26. We accordingly, answer the questions referred to us, as under:
(i) In the matter of excavation of sand from the river beds from an area beyond or contrary to the mining plan and in violation of the Environment Clearance, FIR alleging commission of offences as of theft etc. under the provisions of the IPC can be filed against a licensee and bar under section 22 of the MMDR Act, 1957 read with Rule 56 of the Rules of 2019 would not be attracted.
(ii) For the alleged thieving sale of sand from the stock license point without issuing prepaid E-challan and causing huge revenue loss to the State Exchequer and unlawful gain to the petitioners, FIR can be lodged for the offences punishable under sections 379, 411, 406, 420 I.P.C. and it is open for the Investigating Officer to investigate the same.
(iii) The judgments of the learned Single Judge rendered in the case of Mithilesh Kumar Singh (supra) and M/s Aditya Multicom Pvt. Limited vs. The State of Bihar & Ors. (Cr.W.J.C. no. 1233 of 2021) can be said to be per incurium as the earlier decision rendered in the case of Broad Son Commodities Pvt. Ltd. (supra) rendered by another learned Single Judge was not cited and considered.”
After the Division Bench answered the reference, the matters were specially assigned to the Single Judge Bench of the Court for hearing.
Justice Jha observed: "Now, the only question which is required to be adjudicated whether in given fact and circumstances FIR’s as lodged against petitioners as discussed aforesaid constitute any prima facie case for the offences punishable under Sections 379, 406, 411, 420 of the IPC and for the violation of rules of Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation and Storage Rules,2019) as alleged.
He noted that by order dated February 20, 2025, the Court impleaded Enforcement Directorate as one of the party-respondent, expressing its view that the interest of Enforcement Directorate (ED) must be protected, in view of submission that the ratio of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. reported in 2022 SCC Online SC 929, is only the guiding legal note available to the Court as far as case of PMLA Act is concerned, and, therefore, the Enforcement Directorate must at least be given an opportunity of hearing by impleading as a party-respondent. It was also submitted that the opportunity of hearing shall not in any way prejudice the petitioners, rather any such denial shall prejudice the Enforcement Directorate, which in broader sense appears essential to unveil the truth of the present crime (schedule offences) which is calyx of corruption and as such against the national socio-economic interest, upon which case of PMLA, 2002 against petitioners are founded.
Justice Jha recorded:"Admittedly, much prior to date of lodging of FIRs i.e. 3 to 4 months, the petitioners were ousted from the possession of sand ghats, which was with them under settlement and after taking possession of those sand ghats, possession of same were given to local SHO and concerned Circle Officers/Mining department to keep sand securely. It appears that if there were no covering of tarpolene as
alleged through FIRs or it was not fenced, it was the responsibility of the local SHO and the authorities with whom the sand in issue was in possession because for all such acts, the petitioners cannot be said to be liable once as possession was withdrawn over sand ghats. In such circumstances, non- displaying rate, name of settlee (petitioners) appears very obvious....Hence, with available allegation, it cannot be said that any prima facie offence qua theft appears to be made out against petitioners." The same holds true for allegations of breach of trust under Section 406, possession of stolen property under Section 411, voluntarily assisting in concealing or disposing or making away sand under Section 414 IPC and cheating under Section 420 of IPC.
He noted:"The dispute also appears convincing civil in nature because for recovery of non-paid royalty amount for extended period, the concerned authority/respondents filed certificate case as mentioned in aforesaid paragraph No. 38 under the Bihar and Orissa Public Demand Recovery Act, 1914."
In the penultimate paragraph of his 102-page long judgement dated May 16, 2025, Justice Jha observed that the case is squarely covered under the golden guiding principles No. 1, 2, 3, 5 & 7 as available through Bhajan Lal case (supra)". Citing the ratio of the Supreme Court's decision in State of Haryana vs. Bhajan Lal since reported in 1992 Supp (1) SCC 335, he concluded: "present FIRs are liable to be quashed/set aside."
The ratio of Bhajan Lal case (supra) is given in para 102 of the Supreme Court's judgement. It reads: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
Drawing on the Supreme Court's decision, the High Court quashed/set-aside all consequential proceedings due to 16 FIRs.
Notably, 100-page long judgement dated May 16, 2025 has been passed by Justice Jha in M/S. Aditya Multicom Pvt. Ltd. , Through Its Authorized Signatory, Pankaj Singh @ Pankaj Kumar Singh vs. The State of Bihar, Through Principal Secretary, Home, Government of Bihar & Ors. (2025), wherein he dealt with 19 writ petitions drawing on the ratio of Supreme Court's decision in the Bhajan Lal's case. The other eight respondents were: Principal Secretary, Home, Government of Bihar, Director General of Police, Bihar, Superintendent of Police, Aurangabad, Officer In Charge, Barun Police Station, Aurangabad, Principal Secretary, Mines and Geology Department, Bihar, Assistant Director, Mines and Geology Department, Bihar, District Magistrate Cum Collector, Aurangabad and Mines Inspector, District Mining Office, Aurangabad. The text of the judgement by Justice Jha is almost the same as the one given in the case of Broad Son Commodities Private Ltd on the same day.
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