A Very usefull book for MACT Practitioners - Delhi Judicial Academy's Book - MOTOR ACCIDENT CLAIMS REFERENCER

Apex Courts Judgment -When there are binding decisions, judicial comity expects and requires the same to be followed. Judicial comity is an integral part of judicial discipline and judicial discipline the cornerstone of judicial integrity

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 165-166 OF 2011
Sunil Damodar Gaikwad … Appellant (s)
Versus
State of Maharashtra … Respondent


Para 18 of Judgement

18. When there are binding decisions, judicial comity expects
and requires the same to be followed. Judicial comity is an
integral part of judicial discipline and judicial discipline the
cornerstone of judicial integrity. No doubt, in case there are
newer dimensions not in conflict with the ratio of larger
bench decisions or where there is anything to be added to
and explained, it is always permissible to introduce the
same.

the power of transfer is inherent with the power of assignment of the work. In fact, in several other decisions, the power of the District Judge to transfer the cases under Hindu Marriage Act or the Election Petitions and even the Land Grabbing Cases has been considered and confirmed. Therefore, in view of the above circumstances, the power of transfer vested in the District Judge Section 24 CPC -General Power of District Judge - Transfer of Cases- cannot be curtailed by restricted meaning when the intention and purpose of the same, is for the convenience of all.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
Tr.C.M.P.No.537 OF 2012
ORDER:-
This petition is filed for transfer of O.S.No.644 of 2010 on the file
of the Court of II Additional Chief Judge, City Civil Court, Hyderabad,
to the Court of the Chief Judge, City Civil Court, Hyderabad, as the
connected suits O.S.No.317 of 2010 and O.S.No.248 of 2011 are
pending on the file of the Chief Judge, City Civil Court, Hyderabad.
2. It is alleged that the petitioner is the defendant in all the three
suits and there was an understanding with regard to the payments of
the amounts and the defence in all the suits is common and nature of
evidence to be adduced is the same. When this Court questioned as to
why the application is filed before this Court when the remedy under
Section 24 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) can
be availed before the Chief Judge, the learned Counsel for the
petitioner contended that in view of the decision of this Court reported
i n Manchukonda Venkata Jagannadham v. Chettipalli Bullamma
and others
[1]
, the said transfer application is not being entertained
and consequently it has become a bar.
3. According to the purport of the above judgment, Additional
District Judge is not subordinate to the District Judge and
consequently, the District Judge has no power to transfer the same
and cannot exercise the power under Section 24 CPC for transferring
of any cases from his file or withdrawing the cases from the file of the
Additional District Judge. He did not agree with the Judgment of the
Karnataka High Court and also found that under Section 24 CPC it is
difficult to import that Additional and Assistant Judges referred to
means Additional District Judge and consequently held that the
transfer application cannot be entertained by the District Judge.
4. Before considering the maintainability of the application, it is to
be noted that the purpose of procedural law is for the convenience of
the parties and the Court. It is always aimed at speedy and less
expensive remedy to the parties. Any effort to interpret the procedural
law should be necessarily with the object of the interest of the parties
unless there is any mandatory prohibition for exercise of any power. It
is also to be noted that more importance has to be given to the
provisions of the CPC rather than the provisions of the other Act, if they
are not in conflict or in exclusion.
5. Section 24 CPC is as follows:
“24. General power of transfer and withdrawal:-
(1) On the application of any of the parties and after notice to
the parties and after hearing such of them as desired to be
heard, or of its own motion without such notice, the High
Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending
before it for trial or disposal to any Court subordinate to
it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending
in any Court subordinate to it, and-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of
the same; or
(iii) retransfer the same for trial or disposal to the Court
from which it was withdrawn.
(2) Whereas any suit or proceeding has been transferred or
withdrawn under sub section (1), the Court which1 [is
thereafter to try or dispose of such suit or proceeding] it
or proceed from the point at which it was transferred or
withdrawn.
2[(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be
deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution
of a decree for order.]
(4) The Court trying any suit transferred or withdrawn under
this section from a Court of Small Causes shall, for the
purposes of such suit, be deemed to be a Court of Small
Causes.
[(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.]
6. Evidently, under Section 24(3)(a) CPC Additional and Assistant
Judges shall be deemed to subordinate to the District Court. The view
of the learned Judge in the above referred decision is to the effect that
the Additional District Judge is not subordinate to the District Judge
and consequently the power under Section 24 CPC cannot be
exercised by the District Judge. In short, the view of the learned Judge
is that Additional Judge and Assistant Judge referred under Section
24(3)(a) CPC is only with reference to the Senior Civil Judges or
Junior Civil Judges or the Additional chief Judges or Assistant Judges
in the City Civil Courts. I think this view of the learned Judge has to be
taken into consideration only if there is no provision under the Code.
Section 3 of the CPC is as follows:
“3. Subordination of Courts:- For the purposes of
this Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a District
Court and every Court of Small Causes is subordinate to the
High Court and District Court”.
This provision unambiguously shows that every Civil Court
which is inferior in grade is subordinate to the District Court, thereby
the Senior Civil Judges and Junior Civil Judges, who are inferior in
grade to the Court of the District Judge are subordinate. If the
legislature intended the same provision under Section 24 CPC, there
is no need to mention under Section 24(3)(a) CPC that Additional and
Assistant Judges are subordinate to the District Judge. Further-more,
when the statute itself and the section itself are clear or unambiguous,
there is no need to fall back on any other aid to arrive at a decision.
7. As can be seen from section 24 CPC, under Section 24(1)(a)
CPC, the District Court at any stage can transfer any suit, appeal or
other proceeding pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same or (b)
withdraw any suit, appeal or other proceeding in any court subordinate
to it. Therefore, the power that can be exercised by the District Judge
includes the power of transfer from his Court and power of withdrawal
to his Court. It is to be further noted that such a transfer power
exercised by the District Judge should be a transfer to a Court
subordinate to it and competent to try the same. Evidently, the suits or
appeals, which are triable by the District Judge, cannot be transferred
to the inferior Court like Senior Civil Judges or Junior Civil Judges.
There is no denial of the fact that the law has been fairly well settled
that the competency to try a suit includes the territorial and pecuniary
jurisdiction of the Court. Therefore, it follows that the District Judge
cannot transfer a suit, which is triable by him to the other inferior Court.
Consequently, if the intention of the legislature is that the District
Judge has no power to transfer the case to the Additional District
Judge, then there need not have been the provision under Section
24(1) CPC for transfer or withdrawal by him to his Court or from his
Court. Therefore, it is quite clear that the legislature has purposefully
stated under Section 24(3)(a) CPC that the Additional and Assistant
Judges are subordinate to the District judge. It is evidently for the
purpose of including the Additional District Judges or Additional
Judges of any cadre. If such a power is not from District Judge, then
the purpose of Section 24(1)(a) and 24 CPC will be lost.
8. Further-more, Section 24 CPC does not say that Additional and
Assistant Judges are only Senior or Junior judges. If one looks at the
definition of a Judge under Section 2(8) CPC, ‘Judge’ means the
Presiding Officer of a Civil Court. Therefore, the Additional District
Judges, Senior Civil Judges or Junior Civil Judges are the Presiding
Officers of the Court. Therefore, by taking into consideration the
definition of ‘District’ under Section 2(4) CPC, the Principal Civil Court
is the District Court.
Section 2(4) CPC, reads as under:
“(4) “district” means the local limits of the jurisdiction of a
principal Civil Court of original jurisdiction (hereinafter called a
“District Court”), and includes the local limits of the ordinary
original civil jurisdiction of a High Court;”
9. In fact, even under the A.P. Civil Courts Act, 1972, it is the power
of the District Judge to allot the work and thereafter only the Additional
District Judge can dispose of the case with all the powers as a District
Judge. In fact, under the scheme of the A.P. Civil Court Act, the
appointment of the Additional District Judges or any Additional Judges
is only in cases where the requirement of the parties pending in a
District Court is taken into consideration under Section 11 of the A.P.
Civil Courts Act, which reads as follows:
11. Appointment of Additional District Judges:- (1) Where
in the opinion of the High Court, the state of business pending
in a District Court, so requires, the Government may, after
consultation with the High Court, appoint one or more
Additional District Judges to the District Court for such period
as they may deem necessary.
(2) An Additional District Judge so appointed shall
perform all or any of the functions of the District Judge under
this Act or any other law for the time being in force which the
District Judge may assign to him, and in the performance of
those functions, he shall exercise the same powers as the
District Judge”.
10. In fact, the provision under Section 24(3)(a) CPC is an age-old
provision under CPC and was found in the original Act, 1908 and what
was introduced, by way of amendment in 1976 is Section 24(3)(b)
CPC as there was a conflict of decisions with regard to the
interpretation of the proceedings and that has been clarified by
amending CPC in 1976. But, the Code itself originally contains
Section 24(3)(a) CPC and the opinion of the learned Jude in para
No.14 of the above decision is not correct.
11. If the District Judge has no power to entertain the transfer
application, the difficulties of the litigants will be many. For example,
in case from a single or common judgment connected appeals were
filed and they were made over to different District Courts, then if the
District Judge has no power to transfer, every litigant has to come to
the High Court, which definitely might not be the intention of the
legislature. So also, if in a motor accident claim, several claims are
filed from the same accident and they are pending in different
Additional Courts and if the District Judge has no power to transfer the
connected cases and if the claimants are to approach the High Court
only, apart from the expensiveness the other difficulties cannot be
ignored. Therefore, the purpose of power under Section 24 CPC
conferred on the District Judge is for the benefit of the litigants and this
power is consistent with the power to distribute the work by the District
Judge. Even if an application is not filed, the District Judge can suomotu
exercises the power. It is evidently meant for the cause of justice
and not for delays or difficulties to the litigants.
12. In this connection, it is useful to refer to a decision of Punjab
High Court reported in Obrien, M.W. Vs. Haji Abdul Rahman and
another
[2]
(Civil Revision No.2441 of 1911), whereunder it was
specifically held that under Section 24(3) CPC the District Judge has
got power to transfer a case pending before him to the Court of the
Additional District Judge. Further it has been held that-
“the first plea urged for the petitioner for our disposal is
that the Additional District Judge, who passed the decree had no
jurisdiction. The District Judge, who recorded the evidence not
being empowered to transfer a case to the Additional District
Judge, the Court being of co-ordinate jurisdiction, in our opinion,
Section 24(3) of CPC disposes of this objection, which must be
overruled”.
The above decision was followed in In Re: Abdul Malik
of the High Court of Calcutta decided on 24.12.1987
(MANU/WB/0383/1987).
13. Further it will be also useful to refer to a Division Bench of the
Calcutta High Court reported in Ajit Kumar Bhunia Vs. Sm. Kanan
Bala Deyi
[3]
. As per the scheme of Section 3 of the Bengal, Agra and
Assam7-10 Civil Courts Act, the Civil Courts are (1) the court of the
District Judge; (2) the Court of the Additional Judge; (3) the court of the
Subordinate Judge; and (4) the Court of the Munsif.
14. Under Section 8 of the above Act, power was given to appoint
Additional Judges for speedy disposal of the cases when the business
pending before the District Judge requires the aid of the Additional
Judges, which is also akin to Section 11 of the A.P. Civil Courts Act. It
will be useful to extract the observation of the Division Bench in para
No.17 of the judgment, as under:-
“Section 24 of the Code of Civil Procedure
postulates transfer to a competent court, such
competency to be found in and by virtue of some other
statutory provision, notification or otherwise and not
under or by virtue of anything, contained in the said
section. Section 24, itself. Section 8 (2) of the Bengal,
Agra and Assam Civil Courts Act is, however, differently
worded and, under it, the necessary authority or
competency, in the absence of anything to the contrary in
the nature of the particular proceeding or in the particular
statute, under which the same has been taken, is
inherent in the assignment itself And the mere
assignment, as stat-ed hereinbefore, carries with it, in
such cases, the necessary competency or authority,
provided, of course, -- but provided only, -- that the
transferee Judge is an "Additional Judge", -- and, as
seen above, an Additional District Judge is obviously
such "Additional Judge" in the relevant context. Under
Section 24, the District Judge can transfer only to a
competent court, such competency to be found otherwise
and outside the section. Under Section 8(2) of the
Bengal, Agra and Assam Civil Courts Act, however, the
District Judge can transfer to an Additional Judge or an
Additional District Judge and, as noted hereinbefore, in
the absence of anything to the contrary, the Additional
Judge's competency in that behalf can be assumed or
presumed, as it follows from the assignment itself in view
of the terms of the said Section 8 (2) itself. Reliance on
Section 24, therefore, may not solve the problem,
particularly when, in view of the above Supreme Court
pronouncement, it may not be proper to regard the
Additional District Judge as a Judge of the Court of the
District Judge and as possessing, accordingly, coordinate
authority with him.”
15. A reading of the above provision clearly shows that by the fact,
the power of transfer is inherent with the power of assignment of the
work. In fact, in several other decisions, the power of the District Judge
to transfer the cases under Hindu Marriage Act or the Election
Petitions and even the Land Grabbing Cases has been considered
and confirmed. Therefore, in view of the above circumstances, the
power of transfer vested in the District Judge cannot be curtailed by
restricted meaning when the intention and purpose of the same, is for
the convenience of all.
16. Therefore, I hold that the application for transfer has to be moved
before the District Judge, who is competent to entertain and
accordingly with a liberty to the petitioner to file the application before
the Chief Judge, City Civil Court, the transfer case is disposed of and
the Chief Judge shall dispose of the same according to law.
17. With the above observation, the Transfer Civil Miscellaneous
Petition is disposed of at the state of admission. No costs.
Miscellaneous Petitions, if any, pending in this petition shall stand
closed. Registry is directed to communicate the copy of the order to all
the District Judges in the State.
_______________________________
JUSTICE N.R.L. NAGESWARA RAO
Date:31.10.2012
Note: L.R. Copy to be marked.
(B/O)
INL
[1]
AIR 2011 AP 104
[2]
1913 Indian Cases 6
[3]
AIR 1960 CALCUTTA 565

Apex Courts -Contention of the Petitiner up held that the Right to free drinking water is part of Right to Life under Article 21 of the Constitution

ITEM NO.47 COURT NO.1 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO.263 OF 2010
(For Prel. Hearing)
VOICE OF INDIA
(Through its Chairman) Petitioner(s)
VERSUS
UNION OF INDIA AND ORS. Respondent(s)
(With appln(s) for exemption from filing O.T., permission to
appear and argue in-person and permission to file additional
documents)
Date: 20/09/2010 This Petition was called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE K.S. RADHAKRISHNAN
HON'BLE MR. JUSTICE SWATANTER KUMAR
For Petitioner(s) In-person
For Respondent(s)
UPON hearing petitioner in-person, the Court made the following
O R D E R
Petitioner has filed this petition alleging that
the right to free drinking water is part of Right to Life
under Article 21 of the Constitution. Consequently,
petitioner prays that water be supplied to every citizen
in this country free of cost. In this connection,
petitioner has submitted that the various State
Governments, including, Delhi should be directed to
arrange for free potable drinking water through MCDs and
NDMCs.
...2/-
2.
In this writ petition all the States and Union
Territories are made party-respondents.
We are fully conscious of the fact that even
after 60 years a citizen of this country is not getting
clean potable water. In this regard, we agree with the
petitioner. It is, however, not possible for this Court
to monitor and grant relief(s) to the petitioner on all
India basis. Moreover, as stated above, the petitioner
seeks relief(s) essentially against municipal
corporations in each State because supply of clean
potable water is the function of municipal corporations
and other local bodies. Even instances given in the
annexures relate to different sectors/localities within
the municipalities in different States.
In the circumstances, we are of the view that the
petitioner may move the concerned High Court with regard
to its grievances, particularly, when such grievances are
confined to municipal areas and to specific areas where
citizens do not get clean potable water for drinking. We
cannot monitor such local institutions under Article 32
of the Constitution. We refuse to believe that the
concerned High Courts will not look into such grievances,
if specific detailed instances are brought to its notice
...3/-
3.
as submitted on behalf of the petitioner. The petitioner
apprehends that if it has to move the High Court, it may
take several years for redressal of its grievances. We
do not share that perception. Lastly, the subject matter
of this writ petition is a State subject under the
Constitution.
Subject to what is stated above, this writ
petition stands disposed of.
[ Kanchan Jain ] [ Madhu Saxena ]
Assistant Registrar Assistant Registrar

Over Load Vehicles - High Court's Judgment- The Motor Vehicles Act and the Rules made thereunder provide for levy of penalty to the extent of Rs.1000/- per tonne of overload.

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
WRIT PETITION No.40356 of 2012
ORDER:
Petitioner is the owner of a heavy goods vehicle bearing No.
AP 05 Y 5189. On 26-12-2012, it was seized by the 2nd respondent
on the ground that it was overloaded by about 5,970 kgs. The
petitioner challenges the check report, under which the vehicle was
seized.
2. Heard the learned counsel for the petitioner and the
learned Government Pleader for Transport.
3. In the recent past, the heavy goods vehicles are loaded in
excess of their capacity leading to damage to the roads. In certain
cases, the authorities are passing orders suspending the permits
depending upon the extent of overload. It is not known as to
whether any order of suspension of permit has been passed
against the petitioner.
4. The Motor Vehicles Act and the Rules made thereunder
provide for levy of penalty to the extent of Rs.1000/- per tonne of
overload. The continued seizure of the vehicle that too in a loaded
condition would cause heavy damage to the vehicle. At the same
time, the greed of the owners of the vehicles cannot be permitted to
damage and spoil the roads on account of undue overload. While
in inadvertent overload to an extent of 15% can be condoned by
collecting the penalty at the rate of Rs.1,000/- per tonne, any
overload exceeding that must be penalised through levy of double
the amount.
5. Hence, the writ petition is disposed of, directing that the
respondents shall release the vehicle in question by collecting the
penalty of Rs.1,000/- per tonne for overload up to an extent of 15%
of the maximum carrying capacity of the vehicle as entered in
Registration Certificate and at the rate of Rs.2,000/- per tonne for
any overload in excess of 15% of such capacity. The respondents
shall return the original documents pertaining to the vehicle, if taken
from the petitioner, duly retaining copies thereof. There shall be no
order as to costs.
6. Registry shall circulate a copy of this order to all the
Courts of Judicial Magistrate of First Class in the State, so that they
shall take this into account while passing any orders in relation to
seizure of vehicles on the grounds of overload.
7. The miscellaneous petition filed in this writ petition shall
also stand disposed of.
_____________________
L. NARASIMHA REDDY, J.
December 31, 2012.
Note:
Issue CC in two days.
B/O.
KTL

The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21

 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.08.2014
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.(MD)No.13867 of 2011
1.R.Shanmugakani
2.Minor S.Vasantha Kumari
3.Minor S.Senthilmurugan : Petitioners
Vs.
1.The Government of Tamil Nadu,
Rep by its Principal Secretary,
Health and Family Welfare Department,
Fort.St.George, Chennai.
2.The Director,
Medical and Rural Health Services,
Chennai 6.
3.The District Collector,
Virudhunagar District,
Virudhunagar.
4.Dr.Tmt.Alagusundarammal
Obstetric & Gynecologist,
2
Government Hospital, Rajapalayam.
5.Dr.S.Sakthivel,
No.157/41(3), T.P.Mills Road,
Rajapalayam, Virudhunagar District.
6.Z.Arockiammal,
Staff Nurse, Government Hospital,
Rajapalayam.
------------------------------------------------------------------------------------------------------------

20. Article 21 of the Constitution of India guarantees right to
life, which includes right to get meaningful health care, especially
during maternity/delivery period. Article 21 imposes an obligation on
the state to safeguard the right to life of every person. Preservation of
human life is thus of paramount importance. The Government
hospitals run by the State and the Medical Officers employed therein
are duty bound to extend medical assistance for preserving human
life. Failure on the part of a Government hospital to provide timely
medical treatment to a person in need of such treatment results in
violation of his right to life guaranteed under Article 21.
21. The Code of Medical Ethics drawn up with the approval of
the Central Government under Section 33 of the Indian Council
Medical Act and observed is as follows:-
"Every doctor whether at a Government Hospital or
otherwise has the professional obligation to extend his
services for protecting life. The obligation being total,
absolute and paramount, laws of procedure whether in
statutes or otherwise cannot be sustained and, therefore,
19
must give way."

In a case of medical negligence, the Court, while ordering for payment of compensation of Ten Lakhs to the victim   further directed the Government  to initiate appropriate proceedings against the doctors/staff concerned, so as to fix the liability, and thereafter, recover the said amount
from them, after conducting a thorough enquiry

suit for cancellation of sale deed which was executed for a specified amount, the Page 14 14 Court Fee has to be paid on that amount and not on the basis of the market value of the property at the presentation of the plaint.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2456-2457 OF 2014
[Arising out of SLP (C) Nos.16353-54 of 2012)
Polamrasetti Manikyam & Anr. .. Appellants
Versus
Teegala Venkata Ramayya & Anr. .. Respondents
------------------------------------------------


suit for cancellation of sale deed which was executed for a specified amount, Court Fee has to be paid on that amount and not on the basis of the market value of the property at the presentation of the plaint.

Govt Circular with regard to RTI Act, 2005 – Implementation of sub-section (3) of Section 7 of the Act – Intimation to pay additional fee for providing Information within the fixed period – Instructions – Issued.

GOVERNMENT OF ANDHRA PRADESH
GENERA ADMINISTRATION (GPM&AR) DEPARTMENT
Circular U.O. Note No.7490/RTIA/GPM & AR/2011 Dt: 30.4. 2011.
Sub:- RTI Act, 2005 – Implementation of sub-section (3) of Section 7 of the Act –
Intimation to pay additional fee for providing Information within the fixed
period – Instructions – Issued.
Ref:- From the Secretary, APIC, Lr.No.1811 / APIC / B / 2011, dt.19.02.2011.
* * *
The Secretary, Andhra Pradesh Information Commission in his letter in the
reference cited, has reported that Public Information Officers after sending
information asking the applicants to pay the fee are not taking further action and as a
result the applicants are filing first appeals stating that the information sought for has
not been furnished by the Public Information Officer and that the information be
provided free of cost as laid down in sub- section (6) of Section 7 of the Act. In many
cases the appellants are claiming that the communication asking them to pay the fee
has not been received by them from the Public Information Officer within 30 days.
2. Sub- section (3) of Section 7 of the Right to Information Act, 2005 (Act 12 of
2005) provides that where a decision is taken to provide the information on payment
of any further fee representing the cost of providing the information, the Public
Information Officer (PIO) shall send an intimation to the person making the request
giving the details of further fee to be paid requesting him to deposit the fee. The
period intervening between the despatch of the said information and payment of fee
shall be excluded for the purpose of calculating the period of 30 days prescribed in
sub –section (1) of Section 7 of the Act.
3. All Departments of Secretariat, all Heads of Departments and District
Collectors are therefore requested to issue instructions to all Public Authorities under
their administrative control to ensure that the communication asking for payment of
further fees for providing information be sent by the Public Information Officer well
before 30 days of receipt of the application filed under sub-section 1 of Section 6 of
the Act. It is advisable to send the communication by Registered Post with
acknowledgement due, so as to enable Public Information Officer to have evidence of
despatch of the Communication and also ensure that the communication reaches the
applicant and complaints regarding non receipt of the Communication regarding
payment of fee are avoided.
4. Further the Public Information Officer should indicate a reasonable time fixing
a date by which the further fee has to be paid. In case the further fee is not paid
within the time allowed, the Public Information Officer can take a decision to reject the
application on the ground of non-payment of the further fee duly informing the
applicant.
MINNIE MATHEW
SPECIAL CHIEF SECRETARY TO GOVERNMENT
To
All Deptts of Secretariat.
All Heads of Departments.
All District Collectors.
Law ( E) Dept.,
Copy to:
The Secretary
A.P.Information Commission
HACA Bhavan
Hyderabad.
//FORWARDED::BY ORDER//
ASSISTANT SECRETARY TO GOVT.

Anticipatory bail application does not lie when the offence is a bailable offence

HIGH COURT OF AP
HON’BLE DR. JUSTICE K.G. SHANKAR
CRIMINAL PETITION NO. 3221 OF 2014
ORDER:
The petitioner seeks for grant of anticipatory bail in
respect of a bailable offence. Anticipatory bail application
does not lie when the offence is a bailable offence. Hence, this
Criminal Petition is dismissed.
______________________________
DR JUSTICE K.G.SHANKAR
DATE: 26.03.2014

Decision of Central Information Commission (CIC): “A patient has a right to his/her medical records which is rooted in Articles 19 and 21 of the Constitution and hospital authorities, whether public or private, have a duty to provide the same under Right to Information Act, 2005, Consumer Protection Act, 1986, the Medical Council Act, 1956 and world medical ethics read with constitutional rights”,

CENTRAL INFORMATION COMMISSION
(Room No.315, BWing,
August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
File No.CIC/AD/A/2013/001681SA
(Ms.Nisha Priya Bhatia Vs. Institute of HB&AS, GNCTD)
Appellant : Ms. Nisha Priya Bhatia
Respondent : Institute of Human Behaviour
and Allied Sciences, GNCTD
Date of hearing : 27062014
Date of decision : 24072014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, Sec 8 (1) (h),19(3) 25(5)
of the RTI Act.
Result : Appeal allowed / disposed of
Ratio: The Patient has a right to his/her medical record, which is rooted
in Articles 19 and 21 of Constitution of India, and Respondent Hospital
Authorities, whether public or private hospitals, have a duty to provide the
same under Right to Information Act, 2005, Consumer Protection Act,
1986, the Medical Council Act, 1956 and world medical ethics read with
Constitutional rights.
The Public Authority has to develop a time frame mechanism of
disclosure of medical records to patients or their relatives with
safeguards for privacy and confidentiality of the patient.
The Information Commissions can enforce this right to information of
1
patients, (consumers of medical services) against both Government and
Private Hospitals, whether they are public authorities or not, as per
section 2(f) of the RTI Act, 2005.
Parties :
2. The appellant is present. The Public Authority is represented by Mr. S.P. Jaiswal, PIO,
Institute of Human Behavior and Allied Sciences, GNCTD, Delhi.
2
FACTS
3. This is a story of prolonged struggle by appellant, who knocked the doors of almost
every forum for justice, perhaps out of compulsion. The appellant was a senior officer at
prestigious department, R&AW (Research and Analysis Wing) alleging a raw deal in
several matters. The petitions and complaints by appellant contain serious allegations that
kicked up conflicts and slapping of criminal cases by and against her. While she was
charged with attempt to commit suicide under Section 309 of IPC, she charged senior
officers with criminal defamation under Section 499, 500 of IPC. She made several
complaints including sexual harassment against which an inquiry was conducted where
the charges could not be proved for want of evidence, while the enquiry committee
observed violation of guidelines prescribed by Supreme Court in Vishaka & Ors Vs State
Of Rajasthan & Ors., pertaining to procedure and constitution of inquiry etc. The appellant
was referred to Institute of Human Behavior and Allied Sciences GNCTD by the Delhi
High Court, which she strongly believes to be great injustice happened to her as she was
detained there for almost a month, leaving sad experience of torture and harassment to
her and her aged parents. Detailed report by medical board consisting of several expert
doctors did not find any mental disorder or any major illness in her but observed that ‘it
also cannot be said that there is no mental health problem at all’. It is significant to note
that the medical board noted her cooperative attitude in the hospital. She alleged a
deliberate conspiracy and attempt to depict her as mentally sick person just because she
filed several complaints, which were necessitated out of compelling circumstances, the
truth or otherwise of which, this Commission cannot go into. She claimed that because
she was not sick, the detention there was illegal and if she is really sick she should be
treated and not punished like that.
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4. The main question before the Commission is limited, that is Whether
appellant
has right to information and access to her own medical record that is held by
respondent institute. The background stated above suggests that she is in dire need of
the medical records to tell the world that she was not mentally sick but fit and also for
defending her case before the appropriate forum. This is part of her right to reputation
which is inherently available under right to life under Article 21 read with Section 499 and
500 of Indian Penal Code, 1860.
5. Through RTI application dated 1182011,
the appellant, Ms. Nisha Priya Bhatia is
seeking information regarding her ‘illegal detention’ in the chronic patients’ ward of the
respondent Institute, under the garb and on the pretext of a medical check up from the
evening of 2012011
to 1822011
and sought the following:(
i) Certified and paginated copy of the Appellant’s entire case file;
(ii) Certified copies of all correspondence/reports/commentaries exchanged
between the various doctors at IHBAS concerning the Applicant;
(iii) Certified copies of documents containing all entries – including daily diet
consumed by the Applicant/daily medical check up (if any at all) – kept by
the nurses in the chronic patients’ ward where the Applicant was detained
from the evening of 200111
to the afternoon of 18.02.11;
(iv) Certified copies of all correspondence exchanged by IHBAS with any court
of law, including the Delhi High Court, or any government agency, including
the R&AW or the PMO or the Cabinet Secretariat, Rashtrapati Bhawan,
concerning the Applicant;
(v) Certified copies of all official and legal documents’ alleged to have been
made available by the Applicant to the team of doctors of IHBAS – (Ref.
para 1 on page 1 of 3 of the report of medical board which met on
23.02.11).
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6. Appellant during hearing submitted that R&AW (Research and Analysis Wing) is an
organization where its nature of working requires everything to be kept secret and nothing is
known to others, these iron walls of secrecy allow no junior officer to raise his/her voice
against the highhanded
actions and insults of the Senior officers. Appellant also stated that:
“As I questioned, my career was being spoiled by branding me as mentally unsound and was
forcefully sent to the respondent institution. In such hospital there will be no scope for any
escape or rescue or remedy until officers themselves change their mind and order the
discharge”. She also said that at the time of ‘treatment’ she was holding a high position as a
director of an Institute, where she was teaching/training the candidates for R&AW (Research
and Analysis Wing) in the Cabinet Secretariat. According to her statement, her superiors got
antagonized against her for no reason, started withdrawing her privileges as an officer,
gradually and ultimately her chair was also removed leaving her with no place to sit and work.
She strongly believes that if she gets the information she sought, their actions would be
exposed.
7. The PIO claimed via letter dated 1592011
that the information sought was exempted
under section 8(1)(h) of the RTI Act as disclosure would impede the process of investigation.
FAA vide his order dated 18102011
upheld the PIO’s order and disposed of her first appeal,
stating that she was absent during the said hearing also. The appellant, therefore,
approached the Commission by way of 2nd appeal. On the other hand, the respondent/PIO
personally sought adjournment to facilitate his Director/FAA to attend after returning to India
on 28th June, 2014, from his foreign tour and defend.
8. The PIO submitted that his predecessor PIO sought exemption under section 8(1) (h)
which states that “if the information sought by the appellant, would impede the process of
investigation or apprehension or prosecution of offenders” the same can be denied, as the
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case of the appellant is also related to the ongoing
department enquiry. He cited an order of
CIC in No.CIC/SG/A/2011/002238/16606 dated 27.12.11 in appeal filed by Mrs Rashmi Dixit
Matiman at IHBAS wherein the denial of information by IHBAS on the ground of fiduciary
relationship under 8(1)(e) was not accepted. In the writ petition by IHBAS the Delhi High
Court passed an interim order allowing exemption and the hearing is still pending. The PIO
claimed the matter was subjudice.
The PIO further contended as follows:
“IHBAS would also like to make a reference to another similar case wherein a RTI application
and appeal was filed by Mrs. Rashmi Dixit Matiman at IHBAS which was duly replied by
IHBAS vide letter dated 29411
and subsequent order of FAA, IHBAS dated 1611
providing
that the information sought by the applicant is sensitive/confidential in nature and falls under
the purview of section 8(1)(e) of the RTI Act. The FAA, IHBAS upheld “that in a psychiatry
case – the medical records were not only physical clinical examination but included various
information shared by the relatives particularly spouse, children, parents etc. the fiduciary
relationship in psychiatry cases extends not only to the patient but also to the information
shared by others. Information provided by each of the informants to any of the team
members of a mental health team, should be considered as having been provided in a
fiduciary relationship, therefore, Section 8(1)(e) of the RTI Act is applicable.” Thereafter, the
appellant approached the CIC against the order of FAA, IHBAS and CIC announced its
verdict in No.CIC/SG/A/2011/002238/16606 on 271211
with the direction that “The Appeal is
allowed. The PIO is directed to provide the complete information as per records on queries
1, 3, 4, 8 and 9 to the Appellant before 20th January, 2012”
IHBAS felt that the decision of CIC was to be relooked
taking into consideration the
involvement of important issues of privacy, affordable public policy and psychiatric practice,
which may affect larger public interest as a precedent. It therefore became obligatory on the
part of IHBAS in the case to approach Hon’ble High Court of Delhi against the decision of
CIC dated 27122011.
Hon’ble High Court of Delhi passed an order on 2632012
“Exemption allowed, subject to all just exceptions”. The matter has been adjourned for 29814
and the interim order granted by Hon’ble High Court of Delhi has been made to continue.
The case of Ms. Rashmit Dixit against the decision of CIC is subjudice
and the
implementation of the decision of CIC will be subject to outcome of Civil Writ Petition filed in
the Hon’ble High Court of Delhi.”
9. With regard to the submission of the PIO, in the case referred
[CIC/SG/A/2011/002238/16606], the appellant (in that case) had claimed that she was forcibly
admitted by her husband without informing her what ailments she was suffering from, and
alleged that she was hospitalized only to terrorize her and certify as mentally ill. First
6
Appellate Authority in that case claimed that information about her condition was obtained
from different sources which included her husband and therefore the information was held in
a fiduciary capacity by the doctors. The FAA’s order was rejected by the Commission which
directed furnishing of information to the appellant. After due consideration of the
submission the Commission holds that this CIC decision and interim order of Delhi
Court are not applicable to this case, because the grounds claimed are totally
different i.e., in this case they invoked section 8(1)(h) and in the other it was 8(1)(e).
10. As to the submission of the appellant that there is ongoing
departmental enquiry
for denial of information, it is to be noted that the PIO chose not to give details of enquiry, how
long it would go, what was the charge, stage of proceedings and how the disclosure would
interfere or hamper or impede the investigation or prosecution. The Commission assumes
that there is no enquiry or investigation going on.
11. In view of the above the issues before the Commission are:
A) Whether patient/appellant has right to information about her own medical records?
B) Whether appellant’s case fall under provision of life and liberty?
C) Whether information sought can be denied under Section 8(1)(h) of RTI Act?
12. As part of the first issue, we need to refer to provisions of Consumer Protection Act,
1986 to ascertain whether appellant has the right to information about her own medical
record.
(A)Right to information under RTI and Consumer Protection Act:
Expression “Consumer’’ is defined in the Consumer Protection Act, 1986: S 2(1)
(d) "consumer" means any person who, (
i) omitted
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(ii) hires (or avails of) any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment and includes any beneficiary of such services other than the person who
hires (or avails of) the service for consideration paid or promised, or partly paid
and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person,
Similarly as per Section 2(1)(o) : "service" means –
“ service of any description which is made available to the potential users and
includes the provision of facilities in connection with banking, financing, insurance,
transport, processing, supply of electrical or other energy, board or lodging or both,
(housing construction), entertainment, amusement or the purveying of news or
other information, but does not include rendering of any service free of charge or
under a contract of personal service.”
In a landmark judgment in Indian Medical Association v. V.P Shantha [1995(6) SCALE
273] Hon’ble Supreme Court of India has stated that “Service” rendered by Medical
Practitioner were covered under Consumer Protection Act. Hon’ble Supreme Court laid down:
(1) Service rendered to a patient by a medical practitioner (except where the
doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of 'service' as defined in
Section 2(1)(o) of the Act.
……
(10) Service rendered at a Government hospital/health center/dispensary where
services are rendered on payment of charges and also rendered free of charge
to other persons availing such services would fall within the ambit of the
expression 'service' as defined in Section 2(1)(o) of the Act irrespective of the
fact that the service is rendered free of charge to persons who do not pay for
8
such service. Free service would also be "service" and the recipient a
"consumer" under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot
be regarded as service rendered free of charge, if the person availing the
service has taken an insurance policy for medical care where under the
charges for consultation, diagnosis and medical treatment are borne by the
insurance company and such service would fall within the ambit of 'service' as
defined in Section 2(1)(o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the
expenses of medical treatment of an employee and his family members
dependent on him, the service rendered to such an employee and his family
members by a medical practitioner or a hospital/nursing home would not be
free of charge and would constitute 'service' under Section 2(1)(o) of the Act.”
Thus, the appellant is a consumer in her capacity as ‘patient’ as per the definition of
‘Consumer’ under Consumer Protection Act 1986 and according to Supreme Court’s
landmark judgment in IMA vs Shantha, the medical services are ‘services’ under that Act.
Therefore, the Appellant has right to information and treating institution has a legal
duty to give proper information, not to give misleading information and not to resort
to unfair trade practices.
The relevant provisions of Consumer Protection Act in respect to Right to information are Section
6 of CPA: Objects of the Central Council:The
objects of the Central Council shall be to promote and protect the rights of the
consumers such as(
a) the right to be protected against the marketing of goods 2[and services] which are
hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of
goods 1[or services, as the case may be], so as to protect the consumer against unfair trade
practices;
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Section 2 of the CP Act defines (
f) “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency,
purity or standard which is required to be maintained by or under any law for the time being
in force or 2[under any contract, express or] implied, or as is claimed by the trader in any
manner whatsoever in relation to any goods;
(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be maintained by or under any law
for the time being in force or has been undertaken to be performed by a person in pursuance
of a contract or otherwise in relation to any service;
UNFAIR TRADE PRACTICE
(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the
sale, use or supply of any goods or for the provision of any service, adopts any unfair method
or unfair or deceptive practice including any of the following practices, namely,(
1) the practice of making any statement, whether orally or in writing or by visible
representation which,(
i) falsely represents that the goods are of a particular standard, quality, quantity, grade,
composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any rebuilt,
secondhand,
renovated, reconditioned or old goods as
new goods;
(iv) represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which
such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of,
any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of
life of a product or of any goods that is not based on an adequate or proper test thereof:
PROVIDED that where a defence is raised to the effect that such warranty or guarantee is
based on adequate or proper test, the burden of proof of such defence shall lie on the person
raising such defence;
(viii) makes to the public a representation in a form that purports to be10
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or
continue a service until it has achieved a specified result, if such purported warranty or
guarantee or promise is materially misleading or if there is no reasonable prospect that
such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or
goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a
representation as to price shall be deemed to refer to the price at which the product or goods
or services has or have been sold by sellers or provided by suppliers generally in the
relevant market unless it is clearly the price at which the product has been sold or services
have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another
person.
Explanation: For the purposes of clause (1), a statement that is(
a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or
displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other
manner whatsoever made available to a member of the public, shall be deemed to be a
statement made to the public by, and only by, the person who had caused the statement to
be so expressed, made or contained;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for
the sale of supply at a bargain price, of goods or services that are not intended to be offered
for sale or supply at the bargain price, or for a period that is, and in quantities that are,
reasonable, having regard to the nature of the market in which the business is carried on, the
nature and size of business, and the nature of the advertisement;.
Consumer’s right to information
Ozair Husain Vs Union of India [ AIR 2003 Delhi 103], the bench of A D Singh, M
Mudgal held that consumer had right to information about the product. In this PIL the
petitioner sought a direction to disclose voluntarily as to whether food product that is being
sold contains elements from animals or not. In this case the relationship between Right to
Information and freedom of expression was discussed. The bench said:
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“freedom of expression enshrined in Article 19(1)(a) can serve two broad purposes (
1) it
can help the consumer to discover the truth about the composition of the products, whether
made of animals including birds and fresh water or marine animals or eggs, and (2) it can
help him to fulfilll his belief or opinion in vegetarianism”. Article 10 of the European
Convention on Human Rights provides that everyone has a right to freedom of expression
and this right shall include freedom to hold opinions and to receive information and ideas
without interference by public authority and regardless of frontiers. Article 19(1) and 19(2)
of the International Covenant on Civil and Political Rights declares that every one shall
have the right to hold opinions without interference, and every one shall have the right to
freedom of expression, and this right shall include freedom to seek, receive and impart
information of ideas of all kinds regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice. It needs to be noted that India is a
signatory to the aforesaid convention….. Right to hold opinions and to receive information
and ideas without interference embodied in the Covenant is concomitant to the right to
freedom of speech and expression which includes right to free flow of information. Since
ancient times we have allowed noble thoughts to come from all sides [Rig Veda]. This has
helped in forming, building, strengthening, nurturing, replenishing and recreating opinions
and beliefs of an individual…… Reading Article 19(1)(a) along with the Covenant, it must
be recognised that right to freedom of speech and expression includes freedom to seek,
receive and impart information of ideas. It seems to us that freedom to hold opinions, ideas,
beliefs and freedom of thought, etc., which is also enshrined in Preamble to the
Constitution, is part of freedom of speech and expression.
20. It appears to us that where packages of food products, drugs and cosmetics do not
disclose any information in writing and by an appropriate symbol about the composition of
the products contained therein, right to freedom of conscience of the consumers is violated
as they may be unconsciously consuming a product against their faiths, beliefs and
opinions.
21. In view of the aforesaid discussion, we are of the view that it is the fundamental right of
the consumers to know whether the food products, cosmetics and drugs of nonvegetarian
or vegetarian origin, as otherwise it will violate their fundamental rights under Article 19(1)
(a), 21 and 25 of the Constitution.
23. In so far as food products are concerned, adequate provisions have been made for
informing the consumers as to whether or not the article of food is vegetarian or nonvegetarian.
As regards drugs and cosmetics, necessary amendments have not been made
in the relevant statutes. In so far as a life saving drug is concerned, there is a view point
that the information: whether or not it is derived or manufactured, wholly or partly, from an
animal, should not be disclosed since it is meant to fight disease and save life
25. Till such time the requisite amendments are carried out, we direct as under:(
1) Where a cosmetic or a drug other than life saving drug, as the case may be, contains
ingredients of nonvegetarian
origin, the package shall carry label bearing the following
symbol in red colour on the principal display panel just close in proximity to name or brand
name of the drug or cosmetic :12
(2) Where a cosmetic or a drug other than life saving drug, as the case may be, contains
ingredients wholly of vegetarian origin, the package shall bear the following symbol in
green colour on the principal display panel just close in proximity to name or brand name of
the drug or cosmetic:(
3) Where a cosmetic or a drug other than life saving drug has ingredients of vegetarian or
nonvegetarian
origin, a declaration shall be made in writing on the package indicating the
nature of the origin of the product.
(4) The Director General of Health Services/Drugs Controller General, Govt. of India, shall
issue a list of Life Saving Drugs within a period of two months.
Thus, as sought by the petitioner, the division bench of Delhi High Court gave following
directions: (i) to protect the rights of innocent conscientious consumers who object to the
use of animals in whole or in part or their derivatives in food, cosmetics and drugs, etc., by
making the manufacturers and packers thereof to disclose the ingredients of the aforesaid
products so that they make an informed choice with regard to their consumption; (ii) to the
manufacturers and packers of cosmetics, drugs and articles of food for complete and full
disclosure of the ingredients of their products being sold to consumers; (iii) a declaration
that the consumers have a right of making an informed choice between the products made
or derived from animal and nonanimal
ingredients; and (iv) a direction to the
manufacturers and packers of food, cosmetic and drugs that the products made from
animals should bear an easily identifiable symbol conveying that it has an animal
ingredient. “
The above judgment deals with right to information needed to exercise choices and
beliefs of consumers under Consumer Protection Act. Extending this principle
derived from Articles 21 and 19 of our Constitution, a consumer of medical services
too has a right to know about treatment given to him/her, the reports of diagnostic
tests, the opinions expressed by doctors or specialists and reasons for keeping her
in hospital etc. Consumer’s right to information extends both to the products and
services, including medical service. This right is available against both public and
private hospitals, even though private hospitals do not fall under ‘public authority’
as per Section 2(h) of RTI Act.
Right to Information under Medical Council of India Regulations:
13
13. The Medical Council of India has imposed an obligation on Hospitals as per the
regulations notified on 11th March 2002, amended up to December 2010 to maintain the
medical record and provide patient access to it. These regulations were made in exercise of
the powers conferred under section 20A read with section 33(m) of the Indian Medical
Council Act, 1956 (102 of 1956), by the Medical Council of India, with the previous approval
of the Central Government, relating to the Professional Conduct, Etiquette and Ethics for
registered medical practitioners, namely:Maintenance
of Medical Records:
1.3.1. Every physician shall maintain the medical records pertaining to his/her
indoor patients for a period of three years from the date of commencement of the
treatment in a standard proforma laid down by the Medical Council of India and
attached as Appendix 3.
1.3.2. If any request is made for medical records either by the
patients/authorised attendant or legal authorities involved, the same may
be duly acknowledged and documents shall be issued within the period of
72 hours.
14. Hon’ble Kerala High Court recognizing the above principle in Rajappan Vs. Sree
Chitra Tirunal Institute for Medical Science and Technology [ILR2004(2)Kerala150]
had observed that :
“…..Appendix 3 referred to in regulations 1.3.1 provides for information, among other
things, pertaining to diagnosis, investigations advised with reports, diagnosis after
investigation, and advice. Therefore it is obvious from the appendix that what is to be
given is the full details about the patient, namely, the findings pertaining to the deceased.
That is the diagnosis and the periodical advice for treatment. As and when diagnosis is
made the treatment will be advised by the doctor to the nursing staff in the case sheet
itself. Therefore the case sheet will show the progressive testing, diagnosis and treatment
given to the patient. The details to be furnished in Appendix 3 are of comprehensive in
nature and should contain the diagnosis and treatment given to the patient during the
period, the patient was under treatment. Regulation 1.3.1 has to be read with
regulation 1.3.2 which makes it mandatory that any patient requesting for medical
records should be furnished copies of "documents" within 72 hours from the date
14
of demand. In other words, the patient's right to receive documents pertaining to
his/her treatment is recognised by the Regulations. The documents referred to in
Regulation 1.3.2 necessarily have to be the entire case sheet maintained in the
hospital which contains the result of diagnosis and treatment administered, the
summary of which is provided in Appendix 3. Therefore the petitioner is entitled to
photocopies of the entire case sheet and the respondents cannot decline to give
the same by stating that the details are available in Appendix 3 furnished, which
they are willing to furnish.”
Kerala High Court further observed that:
It is also to be noticed that Regulations do not provide any immunity for any medical
record to be retained by any medical practitioner of the hospital from being given
to the patient. On the other hand it is expressly provided that a patient should be given
medical records in Appendix 3 with supporting documents. Therefore in the absence of
any immunity either under the Regulations or under any other law, the respondentHospital
is bound to give photocopies of the entire documents of the patient.
Standing counsel for the respondentHospital
submitted that the documents once
furnished will be used as evidence against the hospital and against the doctors
concerned. I do not think this apprehension will justify for claiming immunity against
furnishing the documents. If proper service was rendered in the course of treatment, I
see no reason why the hospital, or staff, or doctors should be apprehensive of any
litigation. A patient or victim's relative is entitled to know whether proper medical
care was rendered to the patient entrusted with the hospital, which will be revealed
from case sheet and medical records. There should be absolute transparency with
regard to the treatment of a patient and a patient or victim's relative is entitled to
get copies of medical records. This is recognized by the Medical Council Regulations
and therefore petitioner is entitled to have copies of the entire medical records of his
daughter which should be furnished in full.
Case Law as to Right of information of Patients :
15. There are several decisions by the High Courts and Consumer Commissions
establishing the right of patient to information and duty of the Doctors/Hospitals (both private
and public) to provide the same.
15
In Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma 1996; 3 CPR
24 (Guj); I (1997) CPJ 332 (Guj); 1998 CCJ 690 (Guj), the hospital and doctor were held
guilty of deficiency in service as case records were not produced before the court to refute
the allegation of a lack of standard care.
If hospital takes up a plea of record destroyed, it was held that it could be a case of
negligence. In S.A. Quereshi v Padode memorial Hospital and Research Centre II
2000. CPJ 463 (Bhopal) it was held that the plea of destroying the case sheet as per the
general practice of the hospitals appeared to the court as an attempt to suppress certain
facts that are likely to be revealed from the case sheet. The opposite party was found
negligent as he should have retained the case records until the disposal of the complaint.
Explaining the consequences of denial of medical record, it was held that an
adverse inference could be drawn from that. In case of Dr. Shyam Kumar v Rameshbhai,
Harmanbhai Kachiya 2002;1 CPR 320, I (2006) CPJ 16 (NC). The National Commission
said that not producing medical records to the patient prevents the complainant from
seeking an expert opinion and it is the duty of the person in possession of the medical
records to produce it in the court and adverse inference could be drawn for not producing
the records.
On the point of negligence, AP State Commission said in case of Force v. M
Gnaneswara Rao 1998;3 CPR 251; 1998 (1) CPJ 413 (AP SCDRC) that there was
negligence as the case sheet did not contain a proper history, history of prior treatment and
investigations, and even the consent papers were missing.
16
In V P Shanta v. Cosmopolitan Hospitals (P) Ltd 1997;1 CPR 377 (Kerala SCDRC)
the State Commission held that failure to deliver Xray
films is deficient service. The patient
and his attendants were deprived of their right to be informed of the nature of injury
sustained.
In Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996;3 CPR 56; I
(1997) CPJ 103; 1998 CCJ 544 (Guj) the State Commission disbelieved the evidence of the
surgeon because only photocopies were produced to substantiate the evidence without any
plausible explanation regarding the absence of the original.
National Commission in case of Meenakshi Mission Hospital and Research
Centre v. Samuraj and Anr. I(2005) CPJ (NC) held that the hospital was guilty of
negligence on the ground that the name of the anaesthetist was not mentioned in the
operation notes though anaesthesia was administered by two anaesthetists. There were two
progress cards about the same patient on two separate papers that were produced in court.
In Dr. Tokugha Yeptomi v. Appollo Hospital Enterprises Ltd and Anr
III 1998 CPJ 132 (SC) it was held that not maintaining confidentiality of patient information
could be an issue of medical negligence. In this case the HIV status of a patient was made
known to others without the consent of the patient.
These decisions establish the right of the patient and obligation of hospitals or medical
institutions to give medical records.
17
In Raghunath Raheja v Maharashtra Medical Council, AIR 1996 Bom 198,
Bombay High Court upheld the right of patient to medical record very emphatically. Judges
M Shah and A Savanth stated:
“We are of the view that when a patient or his near relative demands from the Hospital or
the doctor the copies of the case papers, it is necessary for the Hospital authorities and
the doctors concerned to furnish copies of such case papers to the patient or his near
relative. In our view, it would be necessary for the Medical Council to ensure that
necessary directions are given to all the Hospitals and the doctors calling upon then to
furnish the copies of the case papers and all the relevant documents pertaining to the
patient concerned. The hospitals and the doctors may be justified, in demanding
necessary charges for supplying the copies of such documents to the patient or the near
relative. We, therefore, direct the first respondent Maharashtra Medical Council to issue
necessary circulars in this behalf to all the hospitals and doctors in the State of
Maharashtra. We do not think that thet hospitals or the doctors can claim any secrecy! or
any confidentiality in the matter of copies of the case papers relating to the patient. These
must be made available to him on demand, subject to payment of usual charges. If
necessary, the Medical Council may issue a pressnote
in this behalf giving it wide
publicity in all the media.”
Transformation of ethical norm into right to medical records
16. Medical ethics internationally is governed by the principle of autonomy, which
recognizes the rights of individuals to selfdetermination.
Autonomy is rooted in society's
respect for individuals' ability to make informed decisions about personal matters. It is an
important social value which has shifted to define medical quality in terms of outcomes
that are important to the patient rather than medical professionals. The respect for
autonomy is the basis for informed consent and advance directives.
17. The Patients are capable of electing to make their own medical decisions, or can
delegate decisionmaking
authority to another party. Only if the patient is incapacitated,
laws around the world designate different processes for obtaining informed consent,
typically by having a person appointed by the patient or their next of kin make decisions
for them. Thus the value of informed consent is closely related to the values
of autonomy and truth telling.
18
18. The reason for "ethical conflicts" in medical ethics is lack of communication.
Communication breakdowns between patients and their healthcare team, between family
members, or between members of the medical community, can all lead to disagreements
and strong feelings. These breakdowns should be remedied, and many apparently
insurmountable "ethics" problems can be solved with open lines of communication. The
Patient has to be communicated all the information about his or her medical treatment,
which is now being recognized as a right guaranteed by various statutes rather than
leaving it at the level of a mere ethical norm.
19. The UK’s Data Protection Act 1998 gives an individual a right of access to
information held about him. The Access to Health Records Act 1990 gave access to a
patient’s medical records in noncomputerized
form, while Data Protection Act 1998 Act
gives access to both electronic and nonelectronic
records. The 1990 Act is still relevant to
be in force relating to access to a patient’s medical records after his death.
20. Section 3 of Access to Health Records Act 1990 says that the holder of the
record, within a maximum period of 40 days, must give access to the record by allowing
the applicant to inspect the record (or an extract) or if the applicant so requires by
supplying him with a copy of the record or extract.
Patients’ Right to Information
21. Section 2(f) of RTI Act 2005 says:
"information" means any material in any form, including records, documents, memos, emails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force.
This section gives power and imposes an obligation on the Commission to enforce the
right to information available to the appellant under any other law. This Commission
observes that three enactmentsRTI
Act, Consumer Protection Act and Medical Council
19
Act, provided the appellant a strong and undeniable right to information of her own medical
record.
Article 21 of Constitution says: No person shall be deprived of his life or personal liberty
except according to procedure established by law. This includes right to health.
Supreme Court held in Consumer Education & Research Centre and Union of India, AIR
1995 SC 992, that the right to health, medical aid to protect the health and vigour to a
worker while in service or post retirement is a fundamental right under Article 21, read with
Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make
the life of the workman meaningful and purposeful with dignity of person. This right
extends to every person.
According to Article 19(1) all citizens shall have the right (a) to freedom of speech and
expression, subject to limitations under Article 19(2). International Conventions including
Universal Declaration of Human Rights and Supreme Court of India emphatically stated
that right of expression inherently includes right to receive information. Article 21 also
extends to cover right to know. Hence the right of a patient to her/his own information as its
foundation in fundamental rights guaranteed by the Constitution. This right can be
enforced by the arms of legislations and forum created by them such as Consumer
Protection Forum and Information Commissions.
The Right of patient to Information to his/her own medical record is not only
guaranteed under above three legislations but also rooted in Article 21, right to life
which include right to health and Article 19(1)(a), right to freedom of speech and
expression, which include right to receive information. This right is not limited to
records held by public authorities alone but extends to all hospitals including
private or corporate hospitals also to individual doctors, who treat patients. The
20
Information Commission can enforce the same as per mandate of Parliament
through the definition of information under Section 2(f).
The Commission, thus, holds that undoubtedly the appellant, being a patient has a
right to detailed medical record about her treatment under Section 3 of the RTI
Act, also under Consumer Protection Act, 1986 and Medical Council Act 1956.
(B) Is it “life and liberty” issue?
22. Appellant has alleged a deep conspiracy among certain top officers who
manipulated to show her as mentally imbalanced person and she was forced into the
Institute of Human Behaviour and Allied Sciences, GNCTD, ‘’for her behavioral
problems’’, against which she was waging legal battles on different aspects, including this
second appeal. Apart from this right, she also has several rights under Consumer
Protection Act 1986, including right to information, right to seek remedy against medical
negligence such as treating her for a disease which she did not suffer from.
23. The Commission is concerned with her right to information about medical records,
treatment, diagnosis, counsel, prescription etc from the time of admission to discharge
including relevant records pertaining to pre and post hospital stages. If her allegation that
she was unnecessarily treated in the Institute of Human Behavior and Allied Sciences for
no reason or for wrongful reasons is proved her stay in hospital could be considered illegal
detention. This would raise questions of serious violation of right to life and liberty. She
also claimed that she would be entitled to the information sought within 48 hours under the
‘right to life and liberty’ provision of Section 7(1) of RTI Act. That is why she sought
medical records of so called treatment meted out to her. It was denied without explaining
21
any justification and without substantiating how her petition could not fall under life and
liberty clause or how exception of ‘impeding’ investigation would attract.
Considering the solid foundation of right to information in Constitutional
provisions as explained under paragraph 21 above, the Commission holds that
information regarding medical records, especially when she is disputing her stay
and treatment will be categorized as the case concerning life and liberty of the
appellant.
(C) Whether claim of Sec 8 (1)(h) exception valid?
24. The Commission then examined the possibility of application of exception under
Section 8 (1) (h) of RTI Act. Hon’ble Delhi High Court in [Bhagat Singh Vs. CIC [146
(2008) DLT 385] explained that the exception under Section 8(1) (h) should not be used to
deny the right itself:
“Access to information, under Section 3 of the Act, is the rule and exemptions under
Section 8, the exception. Section 8 being a restriction on this fundamental right, must
therefore is to be strictly construed. It should not be interpreted in manner as to shadow
the very right itself. Under Section 8, exemption from releasing information is granted if it
would impede the process of investigation or the prosecution of the offenders. It is
apparent that the mere existence of an investigation process cannot be a ground for
refusal of the information; the authority withholding information must show satisfactory
reasons as to why the release of such information would hamper the investigation
process. Such reasons should be germane, and the opinion of the process being
hampered should be reasonable and based on some material. Sans this consideration,
Section 8(1)(h) and other such provisions would become the haven for dodging demands
for information. “
In yet another case, B S Mathur vs Public Information Officer Of Delhi High Court
[180(2011)DLT303] the Delhi High Court emphasized on the point of factual interference
with the investigation to claim this exception under Sec 8 (1)(h), as follows:
22
“19. The question that arises for consideration has already been formulated in the Court’s
order dated 21st April 2011: Whether the disclosure of the information sought by the
Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of
Section 8 (1) (h) RTI Act? The scheme of the RTI Act, its objects and reasons indicate
that disclosure of information is the rule and nondisclosure
the exception. A public
authority which seeks to withhold information available with it has to show that the
information sought is of the nature specified in Section 8 RTI Act. As regards Section 8
(1) (h) RTI Act, which is the only provision invoked by the Respondent to deny the
Petitioner the information sought by him, it will have to be shown by the public authority
that the information sought "would impede the process of investigation." The mere
reproducing of the wording of the statute would not be sufficient when recourse is
had to Section 8 (1) (h) RTI Act. The burden is on the public authority to show in
what manner the disclosure of such information would „impede ‟ the investigation.
Even if one went by the interpretation placed by this Court in W.P. (C) No.7930 of
2009 [Additional Commissioner of Police (Crime) v. CIC, decision dated 30th
November 2009] that the word "impede" would "mean anything which would
hamper and interfere with the procedure followed in the investigation and have the
effect to hold back the progress of investigation", it has still to be demonstrated by
the public authority that the information if disclosed would indeed "hamper" or
"interfere" with the investigation, which in this case is the second enquiry”
25. Thus these two emphatic judgments made it mandatory for the public authority to
show that the disclosure of the information would in fact, impede the process of
investigation. The officers of Respondent Authority told the Commission that no such
investigation was under process. They did not present anything to explain as to how Sec 8
(1)(h) could be used to deny the information.
Decision
26. The Commission rejects the contention of the respondent authority invoking
exception under Section 8(1)(h) as devoid of merit as they have miserably failed to
establish any factor that would attract such exception. The Commission cannot accept the
contention of the respondent authority that the information sought by the appellant is
exempt under section 8(1)(h) of the RTI Act for another reason that this request for
information is with reference to the appellant’s life and liberty, who was kept in detention
23
by the respondent/institute because she has every right to have the
information about the treatment meted out to her during her detention in the
respondent/institute to establish the nature of her detention. Pendency of an enquiry or
investigation will not disentitle the patient the right to medical record of her own treatment.
As she is seeking information about medical records and treatment given to herself, it
cannot be said to be the third party information. In the absence of any enquiry or
investigation, the respondent/institute cannot invoke the ground of exemption under
section 8(1)(h). The respondent public authority being a Medical Institute/Hospital has a
legal responsibility to share the information about her treatment and medical check up etc
with her in her capacity as patient as explained above and also as an applicant under
Right to Information Act also. The copies of the correspondence exchanged by the
Respondent/institute with other officers pertaining to her case, also do not fall under any
category of exemptions listed in RTI Act and thus cannot be denied.
27. Regarding the application of order of Commission (CIC/SG/A/2011/
002238/16606 dated 27112011)
as contended by appellants, the Commission finds no
relevance to this appeal as there is no dispute between spouses in this case and that she
was seeking her own medical record, not record of other spouse, and hence that decision
would not come to rescue of respondent, as it has nothing to do with exemption under 8(1)
(h).
28. Neither the PIO nor the Appellate Authority tried to substantiate points as to how
the disclosure of her own medical record would hamper the process of investigation. They
did not even attempt to explain what the charge against her was and what investigation
was pending. An empty claim of exception under section 8(1)(h) cannot justify the authority
24
to refuse the information for which the appellant has right both under Right to Information
Act, 2005 and Consumer Protection Act 1986.
29. The Commission reiterates that the patient’s right to obtain his/her medical record
is not only protected under RTI Act, but also under the Indian Medical Council Act, which is
based on world medical ethics, as a ‘consumer’ under Consumer Protection Act, 1986 and
above all, it is rooted in fundamental rights enshrined under Articles 21, 19(1)(a) of Indian
Constitution as detailed in paragraph 21 above. This imposes a statutory obligation not
only public authorities such as the respondents in this case, but also to every hospital,
public or private, to furnish the record to the patient and the Commission are empowered
to enforce it as per RTI Act through Section 2(f). It is the duty of the doctor/Hospital to
develop a mechanism whereby the copy of patients’ medical record from his joining to his
discharge be provided to him or his legal representative even without him asking as a
matter of routine procedure at the time of discharge as directed by Bombay High Court in
above referred case.
30. This Commission finds that the practice of the public authority in relation to the
exercise of its functions under the RTI Act does not conform with the provisions or spirit of
the RTI Act as revealed from the defence claimed with casual invocation of Section 8(1)(h)
exception to deny the medical records, the Commission exercising its powers under
Section 25(5) of RTI Act, recommends the Public Authority IHBAS to develop a
mechanism for disclosure of medical records to patients or his relatives in a time frame
with proper protection to confidentiality and privacy as ordained by RTI Act, preferably in
the lines of judgment of Bombay High Court. The Commission recommends that when a
patient or his near relative demands from the Hospital or the doctor the copies of the case
papers, it is necessary for the Hospital authorities and the doctors concerned to furnish
copies of such case papers to the patient or his near relative. As observed by Bombay
25
High Court it would be necessary for the Medical Council to ensure that necessary
directions are given to all the Hospitals and the doctors calling upon then to furnish the
copies of the case papers and all the relevant documents pertaining to the patient
concerned.
31. With regard to the submission of the PIO that the case be adjourned, the
Commission is of the view that as the present case has already been pending for a long
time and as the case pertains to the life and liberty of the appellant, who is a woman
officer, and that no justification has been given by PIO for further delaying it, case need not
be adjourned. As Mr. S.P.Jaiswal was designated as PIO by the respondent/institute
through whom the Commission has to deal with, and neither the Commission nor the RTI
Act requires the presence of the Director/FAA, the Commission finds no need to postpone
the case.
32. The respondent authority/PIO is, therefore, directed to provide certified copies of
the complete information sought by the appellant in her RTI application dated 1182011
within 30 days from the date of receipt of this order and show cause why maximum
penalty cannot be imposed on the then respondent/PIO for taking excuse under nonapplicable
clause of the RTI Act and denying the information to the appellant. His
explanation should reach the Commission within 3 weeks from the date of receipt of this
order. Noncompliance
of the Commission’s order will be taken as serious deviance of the
RTI Act. If the respondent/PIO is obstructed by his superior officer, from furnishing the
information to the appellant, such superior officer will be treated as ‘deemed PIO’ and shall
be responsible for penal provisions under the RTI Act.
33. The Commission orders accordingly.
26
(M. Sridhar Acharyulu)
Information Commissioner
Authenticated true copy
(Ashwani K. Sharma)
Designated Officer
27
Address of the parties:
1. The CPIO under RTI, Govt. Of NCT of Delhi,
Institute of Human Behaviour & Allied Sciences,
Dilshad Garden,
New Delhi110095
2. Ms. Nisha Priya Bhatia,
I263,
Nariana,
NEW DELHI110028
Copy also forwarded to the First Appellate Authority to serve show cause notice on the
then PIO, IHBAS as per para 32 of this order:3.
The Director & First Appellate Authority under RTI
Institute of Human Behaviour & Allied Sciences, GNCTD
Dilshad Garden, DELHI110095
28

Hon'ble Apex Court's Judgments on sand mining-Offence U/s 378/379 can be registered.

                                                                     REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO. 499 OF 2011


                      STATE OF NCT OF DELHI                 ...      Appellant(s)

                                               Versus

                      SANJAY                               ... Respondent(s)

                                               with

                                 CRIMINAL APPEAL NO. 2105 OF 2013

                      JAYSUKH BAVANJI SHINGALIA             ...      Appellant(s)

                                               Versus

                      STATE OF GUJARAT AND ANOTHER              ... Respondent(s)



                               CRIMINAL APPEAL NOS. 2108-2112 of 2013

                      MALABHAI SHALABHAI RABARI AND OTHERS ...          Appellant(s)

                                               Versus

                      STATE OF GUJARAT AND OTHERS                 ... Respondent(s)

                                  CRIMINAL APPEAL NO.2107 of 2013

                      KALUBHAI DULABHAI KHACHAR           ...      Appellant(s)

Signature Not Verified
                                               Versus
Digitally signed by
Sanjay Kumar
Date: 2014.09.04
17:02:23 IST
Reason:
                      STATE OF GUJARAT AND ANOTHER         ... Respondent(s)



                                                                                    1
              CRIMINAL APPEAL NO.2106 of 2013

SONDABHAI HANUBHAI BHARWAD                 ... Appellant(s)

                             Versus

STATE OF GUJARAT AND ANOTHER               ... Respondent(s)



                          JUDGMENT

M.Y.EQBAL, J.



1.   The principal question which arises for consideration in

these appeals is whether the provisions contained in Sections 21,

22 and other sections of Mines and Minerals (Development and

Regulation) Act, 1957 operate as bar against prosecution of a

person who has been charged with allegation which constitutes

offences under Section 379/114 and other provisions of the

Indian Penal Code.   In other words, whether the provisions of

Mines and Minerals Act explicitly or impliedly excludes the

provisions of Indian Penal Code when the act of an accused is an

offence both under the Indian Penal Code (in short, `IPC') and




                                                                2
 under the provisions of Mines and Minerals (Development and

Regulation) Act.


2.   Criminal Appeal No.499 of 2011 arose out of an order

passed by the Delhi High Court on an application under Section

482 Cr.P.C. seeking quashing of the FIR registered at Police

Station Alipur under Sections 379/114/120B/34 IPC on the

allegation that appellant was involved in illegal mining of sand

from the Yamuna basin. An FIR was registered by the police suo

motu having come to know that some persons were removing and

selling sand from the Yamuna basin for the last so many days.

On receipt of such information, the police officers committed raid

and visited the site where they found one dumper filled with

sand.   Because of non-production of any documents and valid

papers, the digging equipments were seized and taken into

possession and persons were arrested. An FIR was registered on

the charges of illegal mining under Section 379/114 IPC besides

being cognizable offence under Section 21 (4) of the Mines and

Mineral (Development and Regulation) Act, 1957 (in short the

MMDR Act).


                                                                 3
 3.   The appellant challenged the registration of the case on the

ground inter alia that offence if at all committed, cognizance

would have been taken under the provisions of MMDR Act, that

too on the basis of complaint to be filed under Section 22 of the

Act by an authorized officer.




4.   Criminal Appeal No.2105 of 2013

     Similarly this case arose out of an order passed by the

Gujarat High Court on an application filed by the appellant

seeking quashing of the FIR on various grounds inter alia that

Section 22 of the MMDR Act put a complete bar on the

registration of FIR by the police. The allegation inter alia in the

FIR was on illegal mining in those areas where mining lease was

already revoked.


5.   Criminal Appeal Nos. 2108-2112 of 2013

     In these cases, appellants are the owners of Murlidhar

Stone Industries and were granted quarry lease in the seam of

Village Thoriwari for excavation of mines and minerals on

payment of royalty. The appellants challenged the legality and


                                                                  4
 validity of mining complaint lodged by the State geologist against

them for offences under Section 379/114 of IPC and under

Section 21 of the MMDR Act.          The appellants sought an

appropriate writ or direction to quash and set aside the criminal

proceedings on the same ground that Section 22 of the Act

prohibits registration of FIR with respect to offences punishable

under the said MMDR Act.




6.   Criminal Appeal No.2107 of 2013

     This appeal also arose out of the order passed by the High

Court of Gujarat on the application challenging the legality and

validity of criminal complaint filed before Bhuj Taluka Police

Station for the alleged illegal mining and transporting a dumper

loaded with black trap stone. A complaint was made with the

police for the commission of offence under Section 379 read with

Section 114 of the IPC and under Section 21 of the MMDR Act.


7.   Criminal Appeal No.2106 of 2013

     This appeal also arose out of a complaint filed before Sayla

Police Station by the Incharge Mines Supervisor, alleging offence


                                                                 5
 punishable under Sections 4(1) and 21(1) of the MMDR Act. No

charge sheet has been filed in this complaint so far.


8.   Criminal Appeal No.499 of 2011, as stated above, arose out

of the order passed by the Delhi High Court.          The Delhi High

Court formulated three issues for consideration:-

          (1) Whether the police could have registered an FIR
          in the case;

          (2) Whether a cognizance can be taken by the
          concerned Magistrate on the basis of police report;
          and

          (3) Whether a case of theft was made out for
          permitting registration of an FIR under Section
          379/411 of the Indian Penal Code.



The High Court after referring various provisions on the MMDR

Act vis-`-vis Code of Criminal Procedure disposed of the

application directing the respondent to amend the FIR, which

was registered, by converting the offence mentioned therein

under Section 379/411/120B/34 of IPC to Section 21 of the

MMDR Act. The High Court in para 18 of the impugned order

held as under:-




                                                                   6
           "18. In view of the aforesaid and taking into
          consideration the provisions contained under
          Section 21 (6) of the said Act I hold that:
                  (i)    The offence under the said Act being
          cognizable offence, the Police could have registered
          an FIR in this case;
                  (ii) However, so far as taking cognizance of
          offence under the said Act is concerned, it can be
          taken by the Magistrate only on the basis of a
          complaint filed by an authorized officer, which may
          be filed along with the police report;
                  (iii) Since the offence of mining of sand
          without permission is punishable under Section 21
          of the said Act, the question of said offence being
          an offence under Section 379 IPC does not arise
          because the said Act makes illegal mining as an
          offence only when there is no permit/licence for
          such extraction and a complaint in this regard is
          filed by an authorized officer."




9.   On the other hand the Gujarat High Court formulated the

following question for consideration:-

          Whether Section 22 of the Act would debar even
          lodging an FIR before the police with respect to the
          offences punishable under the said Act and Rules
          made thereunder?

          In Case such FIR's are not debarred and the police
          are permitted to investigate, can the concerned
          Magistrate take cognizance of the offences on a
          police report?

          What would be the effect on the offences
          punishable under the Indian Penal Code in view of
          the provisions contained in the Act?




                                                                 7
 10.   The Gujarat High Court came to the following conclusion:-
           (i)   The offence under the said Act being
           cognizable offence, the Police could have registered
           an FIR in this case;

           (ii)   However, so far as taking cognizance of
           offence under the said Act is concerned, it can be
           taken by the Magistrate only on the basis of a
           complaint filed by an authorized officer, which may
           be filed along with the Police report;

           (iii)  Since the offence of mining of sand without
           permission is punishable under Section 21 of the
           said Act, the question of said offence being an
           offence under Section 379 IPC does not arise
           because the said Act makes illegal mining as an
           offence only when there is no permit/licence for
           such extraction and a complaint in this regard is
           filed by an authorized officer.



           The High Court, therefore, held that:-
          1.     Section 22 of the Act does not prohibit
          registering an FIR by the police on information being
          given with respect to offences punishable under the
          said Act or the Rules made thereunder.

          2.     It is however, not open for the Magistrate to
          take cognizance of the offence punishable under the
          Act or the Rules made there under on a mere
          charge- sheet filed by the police. It would, however,
          be open for the officer authorized by the state or the
          Central Government in this behalf to file a complaint
          in writing before the Magistrate relying upon the
          investigating carried out by the police and the
          complaint may also include the papers of the police
          investigation.




                                                                   8
          3.     With respect to offences punishable under
         the Indian Penal Code, no such bar as indicated in
         para (2) would apply.

                               xxxxxxx

         22.    In so far as the petitions where only FIRs
         have been registered by the police and no charge
         sheet is filed, they must fail. In so far as the cases
         where police investigation has been concluded and
         charge sheets have been filed, it would not be open
         for the Magistrate concerned to take cognizance of
         offences only on such police reports.



11. In the case of Sengol, Charles and K. Kannan, etc.etc.

vs. State   Rep. by Inspector of Police, 2012 Cri LJ 1705,

2012(2) CTC 369, a similar question also came for consideration

before the Madras High Court where a batch of writ petitions

were heard and disposed of.        The allegation made against the

writ petitioner in the FIR was that they committed theft of sand

from rivers and river-bed belonging to the Government, which

act also constitutes violation of the provisions of MMDR Act.

Accordingly, they were prosecuted for the offence punishable

under Section 21 of the MMDR Act and also under Section 379

IPC. The question that came for consideration before the Court

was as to whether the provisions of the Mines and Minerals



                                                                  9
 (Development and Regulation) Act, 1957, will either explicitly or

impliedly exclude the provisions of the Indian Penal Code when

the act of an accused is an offence both under the Indian Penal

Code and under the Provisions of the Mines and Minerals

(Development and Regulation) Act, 1957?


12. After considering various provisions of the Act, the Division

Bench observed:-

          "35. A cursory comparison of these two provisions
          with Section 378 of IPC would go to show that the
          ingredients are totally different. The contravention
          of the terms and conditions of mining lease, etc.
          constitutes an offence punishable under Section 21
          of the Mines and Minerals Act, whereas dishonestly
          taking any movable property out of the possession
          of a person without his consent constitutes theft.
          Thus, it is undoubtedly clear that the ingredients of
          an offence of theft as defined in Section 378 of IPC
          are totally different from the ingredients of an
          offence punishable under Section 21(1) r/w Section
          4(1) and 4(1A) of the Mines and Minerals Act."



13. The Calcutta High Court in the case of Smt. Seema

Sarkar vs. The State, (1995)1 CALLT 95(HC), has taken a

different view.   In this case the Block Land Reforms Officer

lodged a complaint with the Police Station alleging inter alia that

the accused persons unauthorisedly excavated the land of


                                                                  10
 ordinary clay for manufacturing brick without an authorized

licence and thereby violated Section 21(2) of the MMDR Act and

Section 379 IPC.       The Bhatar police station registered the

complaint treating it as an FIR and GR case was started before

the sub-divisional judicial Magistrate, Faridabad.               The order

taking cognizance and also the complaint was challenged by the

accused persons on the ground inter alia that no court is

competent and empowered to take cognizance of an offence

under the MMDR Act, 1957 unless the complaint is being lodged

by an authorized person. Quashing the complaint, the Calcutta

High Court held as under:-

         "6. The learned Magistrate has taken cognizance of.
         the offence on the basis of the charge-sheet as
         submitted by the Police under Section 21(2) of the
         Mines and Minerals (Regulation and Development)
         Act, 1957 and Section 379 of the Indian Penal
         Code. Cognizance can be taken under section 190
         of the Code of Criminal Procedure, 1973.
         Cognizance is one and it cannot be divided.
         Splitting of cognizance is not permissible under the
         law. This is the admitted position that the
         complainant who lodged the complaint is not an
         authorized person to make such complaint. So
         taking cognizance on the basis of the complaint by
         the learned Magistrate for violation of the provision
         under Section 21(2) of the Mines and Minerals
         (Regulation and Development) Act, 1957 is bad. The
         only question that is left open is whether taking
         cognizance itself is bad or a partial cognizance can


                                                                        11
          be taken? In the peculiarity of the facts and
         circumstances of the case if the offence as alleged
         under Section 379 I.P.C. against the accused is
         dissociated from the allegation of excavation of
         earth without license constituting an offence under
         Section 21(2) of the Mines and Minerals (Regulation
         and Development) Act, 1957, then there is no
         ingredient for an offence under Section 379 I.P.C.
         against the accused. Even if it is assumed that
         there is such an ingredient then the order of taking
         cognizance is bad because cognizance is one and it
         cannot be made a split. If it is found that taking
         cognizance of an offence is bad the other part of the
         offence for which cognizance has been taken cannot
         be sustained in law."



14. Since conflicting views have been taken by Gujarat High

Court, Delhi High Court, Kerala High Court, Calcutta High

Court, Madras High Court and Jharkhand High Court, and they

are in different tones, it is necessary to settle the question

involved in these appeals.




15. Mr. Nikhil Goel learned counsel appearing in Criminal

Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the

impugned order of the High court on various grounds. Learned

counsel firstly contended that Section 22 of MMDR Act per se

puts a bar even on registration of the FIR and consequently on



                                                                 12
 investigation unless a direction to that effect comes from the

Magistrate and that too on a complaint in writing made by a

person authorized in this behalf.    Learned counsel contended

that Section 21(6) of the Act makes the offence under

sub-section 1 of Section 21 to be cognizable irrespective of

anything contained to the contrary in the Code of Criminal

Procedure. Learned counsel contended that both Section 21(6)

and Section 22 if read independently on each other would make

the other provision otiose. As a result, the bar under Section 22

of the Act would not only prevail upon the provisions contained

in Section 190, Cr.P.C. but would prevail over the chapter of the

investigation, namely Chapter 12 Cr.P.C.




16. Learned counsel further submitted that in case the

cognizability of the offence contained in sub-clause 6 of Section

21 is to be extended to include applicability of Chapter 12 of the

Criminal Procedure Code, without complying with the provisions

of Section 22, the same would present at least three difficulties.

Firstly, there are several provisions after the stage of filing of


                                                                13
 charge-sheet which would be contrary to the provisions and the

rules contained in the 1957 Act. These provisions in the act and

the rules framed under the 1957 legislation inescapably indicate

that almost everything relating to an offence under the

provisions of Section 21 has to be done by the authorized officer.

Accordingly, if the provisions of Section 21(6) are to be extended

to Chapter 12, while the police may register an FIR, the power to

seize, the power to compound, the requirement of taking

directions from the jurisdictional magistrate are examples of

some things which the police cannot do in view of direct contrary

to the provisions in the 1957 Act.     Learned counsel submitted

that this power of the police is equivalent to the same

power/duty which arises pursuant to an order of the Magistrate

under Section 156 [3]. There would definitely be cases where

offences punishable under Section 20 were brought to the notice

of persons who were neither authorized person under the Act

nor the police. Therefore in such a situation, if the police fails to

act, the other option available to any person is to make an

application under Section 156 [3].      However, in this case, the



                                                                   14
 learned Magistrate has no jurisdiction to pass an order under

this provision in view of paragraph 11.    Therefore, it will be a

completely incongruous situation if the provisions of sub-clause

6 of Section 21 are to be extended to Chapter 12 despite which

several provisions in Chapter 12 cannot be invoked.




17.   Learned counsel further submitted that the provisions of

Chapter 12 to 14 leading up to the magistrate taking cognizance

of an offence are a part of a common statutory duty. The

investigation under Section 156 of the Code has to necessarily

result in a report either under Section 170 or 173 of the Code.

The appellant submits that the magistrate is duty bound to act

on such report in one of the three manners suggested in para-6

of 1980 (4) SCC 631. It is submitted that there is no other option

of preparation of final report and keep it in abeyance. For this

reason as well, the provisions of sub-section (6) cannot be read

into Chapter 12 of the code. Learned counsel further submitted

that the manner in which the various high courts have dealt with

these provisions are conflicting. The appellant relies upon the


                                                                15
 decision of Kerala High Court reported in 2008 Cr.L.J. 2388,

decision of Madras High Court in Sengol (supra), the judgments

of this Court reported in (2009) 7 SCC 526 and (2011) 1 SCC 534

on    the   interpretation   of   similar   clauses   under   different

enactments.      It was contended that if the intention of the

Legislature was to make violation of the provisions of Section 4 of

the MMDR Act as an offence of theft, there would have been an

appropriate provision in the MMDR Act itself.            The counsel

submits that there is a specific purpose for which powers have

been given to the authorized person to take care of breaches

under the Act and as such breaches are to be tried under the

general penal law as it would take away the protection which an

accused/suspect has been given under the MMDR Act. The

appellant submits that all penal statutes have to be construed

strictly and wherever there are two views possible, benefit to an

accused has to be given.




18.   Before answering the question, we shall first refer in brief

the relevant provisions of Mines and Minerals (Development and


                                                                    16
 Regulation) Act, 1957 and Code of Criminal Procedure. Section 4

of the Act puts a restriction on mining operation or prospecting

mining operation by any person except under a lease or licence.

Section 4 reads as under:-

          "4. Prospecting or mining operations to be under
          licence or lease. (1) No person shall undertake any
          reconnaissance, prospecting or mining operations in
          any area, except under and in accordance with the
          terms and conditions of a reconnaissance permit or of
          a prospecting licence or, as the case may be, a mining
          lease, granted under this Act and the rules made
          thereunder:
          Provided that nothing in this sub-section shall affect
          any prospecting or mining operations undertaken in
          any area in accordance with the terms and conditions
          of a prospecting licence or mining lease granted before
          the commencement of this Act which is in force at
          such commencement.
          Provided further that nothing in this sub-section shall
          apply to any prospecting operations undertaken by the
          Geological Survey of India, the Indian Bureau of
          Mines, the Atomic Minerals Directorate for Exploration
          and Research of the Department of Atomic Energy of
          the Central Government, the Directorates of Mining
          and Geology of any State Government (by whatever
          name called), and the Mineral Exploration Corporation
          Limited, a Government Company within the meaning
          of Section 617 of the Companies Act, 1956.
          Provided also that nothing in this sub-section shall
          apply to any mining lease (whether called mining
          lease, mining concession or by any other name) in
          force immediately before the commencement of this
          Act in the Union Territory of Goa, Daman and Diu.
          (1A) No person shall transport or store or cause to be
          transported or stored any mineral otherwise than in
          accordance with the provisions of this Act and the
          rules made thereunder.




                                                                    17
            (2) No reconnaissance permit, prospecting licence or
           mining lease shall be granted otherwise than in
           accordance with the provisions of this Act and the
           rules made thereunder.
           (3) Any State Government may, after prior consultation
           with the Central Government and in accordance with
           the rules made under Section 18, undertake
           reconnaissance, prospecting or mining operations with
           respect to any mineral specified in the First Schedule
           in any area within that State which is not already held
           under any reconnaissance permit, prospecting licence
           or mining lease."


19.   From a bare perusal of Section 4, particularly Section 4(1A)

would show that there is a total restriction on transportation or

search of minerals otherwise than in accordance with the

provisions of the Act and the rules made thereunder. The next

relevant provisions are Sections 21 and 22 of the Act. Section 21

reads as under :-

           "Penalties 21. (1) Whoever contravenes the provisions
           of sub-section (1) or sub-section (1A) of section 4 shall
           be punished with imprisonment for a term which may
           extend to two years, or with fine which may extend to
           twenty-five thousand rupees, or with both.
           (2)    Any rule made under any provision of this Act
           may provide that any contravention thereof shall be
           punishable with imprisonment for a term which may
           extend to one year or with fine which may extend to
           five thousand rupees, or with both, and in the case of
           a continuing contravention, with an additional fine
           which may extend to five hundred rupees for every day
           during which such contravention continues after
           conviction for the first such contravention.
           (3)    Where any person trespasses into any land in
           contravention of the provisions of sub-section (1) of


                                                                       18
            section 4, such trespasser may be served with an
           order of eviction by the State Government or any
           authority authorised in this behalf by that
           Government and the State Government or such
           authorised authority may, if necessary, obtain the help
           of the police to evict the trespasser from the land.

            (4) Whenever any person raises, transports or
           causes to be raised or transported, without any lawful
           authority, any mineral from any land, and, for that
           purpose, uses any tool, equipment, vehicle or any
           other thing, such mineral, tool, equipment, vehicle or
           any other thing shall be liable to be seized by an officer
           or authority specially empowered in this behalf.

            (4A) Any mineral, tool, equipment, vehicle or any
           other thing seized under sub-section (4), shall be liable
           to be confiscated by an order of the court competent to
           take cognizance of the offence under sub-section (1)
           and shall be disposed of in accordance with the
           directions of such court.

           (5)   Whenever any person raises, without any lawful
           authority, any mineral from any land, the State
           Government may recover from such person the
           mineral so raised, or, where such mineral has already
           been disposed of, the price thereof, and may also
           recover from such person, rent, royalty or tax, as the
           case may be, for the period during which the land was
           occupied by such person without any lawful authority.
           (6)   Notwithstanding anything contained in the Code
           of Criminal Procedure, 1973, an offence under
           sub-section (1) shall be cognizable."



20.   Section 21 is a penalty provision in case of contravention of

Section 4(1A) of the Act and is punishable with imprisonment for

a term which may extend to two years. Sub-section 3 of Section


                                                                        19
 21 would show that the State Government or any other authority

authorized by the State Government may obtain the help of

police to evict the trespassers from the land who is doing mining

activity in contravention of the provisions of the Act. Sub-section

4 further empowered the officer or an authority specially

empowered in this behalf to seize any tool, equipment, vehicle or

any other thing which are used by any person who illegally or

without any lawful authority erases, transports any minerals

from any land. Those minerals, tools, equipment or vehicle or

any other thing so seized shall be confiscated by the order of the

court competent to take cognizance and shall be disposed of in

accordance with the direction of such court as contemplated

under sub-section 4(A) of Section 4 of the Act. Sub-section (6) of

Section 21 has been inserted by an Amendment Act of 1986

whereby an offence under Sub-section (1) of this Section has

been made cognizable. Section 22 which is very relevant for the

instant case needs to be quoted hereinbelow :-

          "22. Cognizance of offences
            No court shall take cognizance of any offence
          punishable under this Act or any rules made
          thereunder except upon complaint in writing made by


                                                                 20
            a person authorised in this behalf by the Central
           Government or the State Government."


21.   Reading the aforesaid provision would show that cognizance

of any offence punishable under the Act or the Rules made

thereunder shall be taken only upon a written complaint made

by a person authorized in this behalf by the Central Government

or the State Government.




22.   Section 23(B) confers power to any gazetted officer of the

Central or State Government authorized on that behalf to make

search of minerals, documents or things in case there is a reason

to believe that any mineral has been raised in contravention of

the Act or the Rules made thereunder.            While making search

provisions of Section 100 of Code of Criminal Procedure has been

made applicable to every search.

          "23B. Power to search --. If any gazetted officer of
          the Central or a State Government authorised by the
          Central Government [or a State Government, as the
          case may be, in this behalf by general or special
          order has reason to believe that any mineral has
          been raised in contravention of the provisions of this
          Act or rules made thereunder or any document or
          thing in relation to such mineral is secreted in any



                                                                   21
           place [or vehicle,] he may search for such mineral,
          document or thing and the provisions of section 100
          of the Code of Criminal Procedure, 1973 shall apply
          to every such search."



23.   In exercise of powers conferred by Section 23(C)(1) of the

MMDR Act, the Government of Gujarat made rules called Gujarat

Mineral (Prevention of Illegal Mining, Transportation and Storage)

Rules, 2005.     The said Rules, inter alia, made provisions to

search, seizure and confiscation of the property in the manner

provided under the Act as and when a person violates the

provisions of the Act and the Rules made thereunder in doing

mining activities.




24.   Looking into the provisions the Code of Criminal Procedure,

1973 the relevant provisions need to be referred hereunder.

Section 2(c), 2(d) and 2(h) define cognizable offence, complaint

and investigation which reads as under :-

           "2(c) "cognizable offence" means an offence for
           which, and "cognizable case" means a case in
           which, a police officer may, in accordance with the
           First Schedule or under any other law for the time
           being in force, arrest without warrant;



                                                                 22
            2(d) "complaint" means any allegation made orally
           or in writing to a Magistrate, with a view to his
           taking action under this Code, that some person,
           whether known or unknown, has committed an
           offence, but does not include a police report.

           2(h) "investigation" includes all the proceedings
           under this Code for the collection of evidence
           conducted by a police officer or by any person
           (other than a Magistrate) who is authorized by a
           Magistrate in this behalf;"



25.   Section 4 provides that all offences under the Indian Penal

Code shall be investigated, inquired into, tried and otherwise

dealt with according to the provisions contained in the said Code.

Sub-section (2) of Section 4 provides that all offences under any

other law shall be inquired into, tried and otherwise dealt with

according to the same provisions but subject to any enactment

regulating the mining or place of investigation, inquiry or trial of

such offences.    Coming to the provisions of Section 41 of the

Code, it will show that a police officer without an order of

Magistrate and warrant can arrest any person who commits a

cognizable offence.     The Court may also arrest any person

against whom a reasonable complaint has been made or credible

information has been received or a reasonable suspicion exist

that he has committed a cognizable offence punishable with


                                                                  23
 imprisonment for a term which made less than seven years. The

relevant part of Section 41, Cr.P.C. is quoted hereinbelow:-

                "41. When police may arrest without
                warrant .-
                (1) Any police officer may without an order from
                a Magistrate and without a warrant, arrest any
                person--
                (a) who commits, in the presence of a police
                officer, a cognizable offence;
                (b) against whom a reasonable complaint has
                been made, or credible information has been
                received, or a reasonable suspicion exists that
                he has committed a cognizable offence
                punishable with imprisonment for a term which
                may be less than seven years or which may
                extend to seven years whether with or without
                fine, if the following conditions are satisfied,
                namely:-
                (i) the police officer has reason to believe on the
                basis of such complaint, information, or
                suspicion that such person has committed the
                said offence;
                (ii) the police officer is satisfied that such arrest
                is necessary-
                (a) to prevent such person from committing any
                further offence; or
                (b) for proper investigation of the offence; or
                (c) to prevent such person from causing the
                evidence of the offence to disappear or
                tampering with such evidence in any manner; or
                (d) to prevent such person from making any
                inducement, threat or promise to any
                person acquainted with the facts of the case so
                as to dissuade him from disclosing such facts to
                the Court or to the police officer; or
                (e) as unless such person is arrested, his
                presence in the Court whenever required cannot
                be ensured,
                and the police officer shall record while making
                such arrest, his reasons in writing.
                ...................."


                                                                        24
 26.   Chapter 11 of the Code confers very important power and

duty upon the police officer to take preventive action in certain

cases. Sections 149, 150, 151 and 152 of the Code are worth to

be referred to and quoted hereinbelow :-

          "149.       Police to prevent cognizable offences
          - Every police officer may interpose for the purpose
          of preventing, and shall, to the best of his ability,
          prevent, the commission of any cognizable offence.

          150.           Information of design to commit
          cognizable offences - Every police officer receiving
          information of a design to commit any cognizable
          offence shall communicate such information to the
          police officer to whom he is subordinate, and to any
          other officer whose duty it is to prevent or take
          cognizance of the commission of any such offence.

          151. Arrest to prevent the commission of
          cognizable offences - (1)    A   police    officer,
          knowing of a design to commit any cognizable
          offence may arrest, without orders from a
          Magistrate and without a warrant, the person so
          designing, if it appears to such officer that the
          commission of the offence cannot be otherwise
          prevented.

                (2)   No person arrested under sub-section
          (1) shall be detained in custody for a period
          exceeding twenty-four hours from the time of his
          arrest unless his further detention is required or
          authorized under any other provisions of this Code
          or any other law for the time being in force.

          152.        Prevention of injury to public
          property.- A police office may of his own authority
          interpose to prevent any injury attempted to be
          committed in his view to any public property,
          movable or immovable, or the removal or injury of


                                                                  25
             any public landmark or buoy or other mark used
            for navigation."



27.    Perusal of aforementioned provisions would show that a

police officer of his own authority has the duty to prevent any

injury attempted to be committed to any public property or

national assets and to prosecute such person in accordance with

law.


28.    The policy and object of Mines and Minerals Act and Rules

have a long history and are the result of an increasing

awareness of the compelling need to restore the serious

ecological imbalance and to stop the damages being caused to

the nature.




29.    The Court cannot lose sight of the fact that adverse and

destructive environmental impact of sand mining has been

discussed in the UNEP Global Environmental Alert Service

report. As per the contents of the report, lack of proper scientific

methodology for river sand mining has led to indiscriminate sand

mining, while weak governance and corruption have led to


                                                                 26
 widespread illegal mining. While referring to the proposition in

India, it was stated that Sand trading is a lucrative business, and

there is evidence of illegal trading such as the case of the

influential mafias in our Country.


30.   The mining of aggregates in rivers has led to severe damage

to river, including pollution and changes in levels of pH.

Removing sediment from rivers causes the river to cut its

channel through the bed of the valley floor, or channel incision,

both upstream and downstream of the extraction site. This leads

to coarsening of bed material and lateral channel instability. It

can change the riverbed itself. The removal of more than 12

million tonnes of sand a year from the Vembanad Lake

catchment in India has led to the lowering of the riverbed by 7 to

15 centimetres a year. Incision can also cause the alluvial aquifer

to drain to a lower level, resulting in a loss of aquifer storage. It

can also increase flood frequency and intensity by reducing flood

regulation capacity. However, lowering the water table is most

threatening to water supply exacerbating drought occurrence and




                                                                   27
 severity as tributaries of major rivers dry up when sand mining

reaches certain thresholds.


31.    Illegal sand mining also causes erosion. Damming and

mining have reduced sediment delivery from rivers to many

coastal areas, leading to accelerated beach erosion.

32.   The report also dealt with the astonishing impact of sand

mining on the economy. It states that the tourism may be

affected through beach erosion. Fishing, both traditional and

commercial -- can be affected through destruction of benthic

fauna. Agriculture could be affected through loss of agricultural

land from river erosion and the lowering of the water table. The

insurance sector is affected through exacerbation of the impact of

extreme events such as floods, droughts and storm surges

through decreased protection of beach fronts. The erosion of

coastal areas and beaches affects houses and infrastructure. A

decrease   in   bed   load    or   channel   shortening    can    cause

downstream      erosion      including   bank    erosion    and     the

undercutting or undermining of engineering structures such as

bridges, side protection walls and structures for water supply.


                                                                     28
 33.   Sand is often removed from beaches to build hotels, roads

and other tourism-related infrastructure. In some locations,

continued construction is likely to lead to an unsustainable

situation and destruction of the main natural attraction for

visitors -- beaches themselves.



34.   Mining from, within or near a riverbed has a direct impact

on the stream's physical characteristics, such as channel

geometry, bed elevation, substratum composition and stability,

instream roughness of the bed, flow velocity, discharge capacity,

sediment transportation capacity, turbidity, temperature, etc.

Alteration or modification of the above attributes may cause

hazardous impact on ecological equilibrium of riverine regime.

This may also cause adverse impact on instream biota and

riparian habitats. This disturbance may also cause changes in

channel configuration and flow-paths.


35.   In the case of M. Palanisamy vs. The State of Tamil

Nadu, 2012 (4) CTC 1, the amended provisions of the Tamil


                                                               29
 Nadu     Mines   and    Minerals    Concession      Rules,     1959     was

challenged on the ground that the said Rules for the purpose of

preventing and restricting illegal mining, transportation and

storage of minerals are ultra vires constitutional provisions and

the provisions of the Mine and Minerals (Development and

Regulation) Act, 1957.      Upholding the vires of the Rules, the

Division Bench (one of us, Eqbal, J. as he then was) of the

Madras    High    Court,    elaborately    discussed     the   object    of

restriction put in the illegal mining, transportation and storage of

minerals including sand and after considering various reports

observed thus:

           "20. In order to appreciate the issue involved in these
           Writ Petitions, we may have to look at the larger
           picture - the impact of indiscriminate, uninterrupted
           sand quarrying on the already brittle ecological set up
           of ours. According to expert reports, for thousands of
           years, sand and gravel have been used in the
           construction of roads and buildings. Today, demand
           for sand and gravel continues to increase. Mining
           operators, instead of working in conjunction with
           cognizant resource agencies to ensure that sand
           mining is conducted in a responsible manner, are
           engaged in full-time profiteering. Excessive in-stream
           sand-and-gravel mining from river beds and like
           resources causes the degradation of rivers. In-stream
           mining lowers the stream bottom, which leads to bank
           erosion. Depletion of sand in the stream-bed and along
           coastal areas causes the deepening of rivers and
           estuaries and enlargement of river mouths and coastal


                                                                         30
 inlets. It also leads to saline-water intrusion from the
nearby sea. The effect of mining is compounded by the
effect of sea level rise. Any volume of sand exported
from stream-beds and coastal areas is a loss to the
system. Excessive in-stream sand mining is a threat to
bridges, river banks and nearby structures. Sand
mining also affects the adjoining groundwater system
and the uses that local people make of the river.
Further, according to researches, in-stream sand
mining results in the destruction of aquatic and
riparian habitat through wholesale changes in the
channel morphology. The ill effects include bed
degradation, bed coarsening, lowered water tables near
the stream-bed, and channel instability. These
physical impacts cause degradation of riparian and
aquatic biota and may lead to the undermining of
bridges and other structures. Continued extraction of
sand from river beds may also cause the entire
stream-bed to degrade to the depth of excavation.
22. The most important effects of in-stream sand
mining on aquatic habitats are bed degradation and
sedimentation, which can have substantial negative
effects on aquatic life. The stability of sand-bed and
gravel-bed streams depends on a delicate balance
between stream flow, the sediments supplied from the
watershed and the channel form. Mining-induced
changes in sediment supply and channel form disrupt
the channel and the habitat development processes.
Furthermore, movement of unstable substrates results
in downstream sedimentation of habitats. The affected
distance depends on the intensity of mining, particles
sizes, stream flows, and channel morphology.
23. Apart from threatening bridges, sand mining
transforms the riverbeds into large and deep pits; as a
result, the groundwater table drops leaving the
drinking water wells on the embankments of these
rivers dry. Bed degradation from in-stream mining
lowers the elevation of stream flow and the floodplain
water table, which in turn, can eliminate water
table-dependent woody vegetation in riparian areas
and decrease wetted periods in riparian wetlands. So
far as locations close to the sea are concerned, saline
water may intrude into the fresh waterbody."




                                                           31
 36.   In the case of Centre for Public Interest Litigation vs.

Union of India, (2012) 3 SCC 1, this Court, while observing that

the natural resources are the public property and national

assets, held as under:-

          "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
           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."



37.   In the case of M.C. Mehta vs. Kamal Nath and others

(1997) 1 SCC 388, this Court while considering the doctrine of

public trust which extend to natural resources observed as

under:-

           "24. The ancient Roman Empire developed a legal theory
           known as the "Doctrine of the Public Trust". It was
           founded on the ideas that certain common properties


                                                                      32
  such as rivers, seashore, forests and the air were held by
 Government in trusteeship for the free and unimpeded
 use of the general public. Our contemporary concern
 about "the environment" bear a very close conceptual
 relationship to this legal doctrine. Under the Roman law
 these resources were either owned by no one (res
 nullious) or by every one in common (res communious).
 Under the English common law, however, the Sovereign
 could own these resources but the ownership was limited
 in nature, the Crown could not grant these properties to
 private owners if the effect was to interfere with the
 public interests in navigation or fishing. Resources that
 were suitable for these uses were deemed to be held in
 trust by the Crown for the benefit of the public. Joseph
 L. Sax, Professor of Law, University of Michigan --
 proponent of the Modern Public Trust Doctrine -- in an
 erudite article "Public Trust Doctrine in Natural Resource
 Law : Effective Judicial Intervention", Michigan Law
 Review, Vol. 68, Part 1 p. 473, has given the historical
 background of the Public Trust Doctrine as under:
 "The source of modern public trust law is found in a
concept that received much attention in Roman and
English law -- the nature of property rights in rivers, the
sea, and the seashore. That history has been given
considerable attention in the legal literature, need not be
repeated in detail here. But two points should be
emphasized. First, certain interests, such as navigation
and fishing, were sought to be preserved for the benefit of
the public; accordingly, property used for those purposes
was distinguished from general public property which the
sovereign could routinely grant to private owners. Second,
while it was understood that in certain common
properties -- such as the seashore, highways, and
running water -- `perpetual use was dedicated to the
public', it has never been clear whether the public had an
enforceable right to prevent infringement of those
interests. Although the State apparently did protect
public uses, no evidence is available that public rights
could be legally asserted against a recalcitrant
government."

25. The Public Trust Doctrine primarily rests on the
 principle that certain resources like air, sea, waters and
 the forests have such a great importance to the people as


                                                              33
            a whole that it would be wholly unjustified to make them
           a subject of private ownership. The said resources being a
           gift of nature, they should be made freely available to
           everyone irrespective of the status in life. The doctrine
           enjoins upon the Government to protect the resources for
           the enjoyment of the general public rather than to permit
           their use for private ownership or commercial purposes.
           According to Professor Sax the Public Trust Doctrine
           imposes the following restrictions on governmental
           authority:
              "Three types of restrictions on governmental authority
          are often thought to be imposed by the public trust: first,
          the property subject to the trust must not only be used for
          a public purpose, but it must be held available for use by
          the general public; second, the property may not be sold,
          even for a fair cash equivalent; and third the property
          must be maintained for particular types of uses."

                                   xxxxxxxxx
          34. Our legal system -- based on English common law --
          includes the public trust doctrine as part of its
          jurisprudence. The State is the trustee of all natural
          resources which are by nature meant for public use and
          enjoyment. Public at large is the beneficiary of the
          sea-shore, running waters, airs, forests and ecologically
          fragile lands. The State as a trustee is under a legal duty
          to protect the natural resources. These resources meant
          for public use cannot be converted into private
          ownership."


38.   In the case of      Intellectuals Forum vs. State of A.P.,

(2006) 3 SCC 549, this Court while balancing the conservation of

natural resources vis-`-vis urban development observed as

under:-

          "67. The responsibility of the State to protect the
          environment is now a well-accepted notion in all
          countries. It is this notion that, in international law, gave


                                                                          34
           rise to the principle of "State responsibility" for pollution
          emanating within one's own territories (Corfu Channel
          case). This responsibility is clearly enunciated in the
          United Nations Conference on the Human Environment,
          Stockholm 1972 (Stockholm Convention), to which India
          was a party. The relevant clause of this declaration in the
          present context is para 2, which states:
          "The natural resources of the earth, including the air,
          water, land, flora and fauna and especially representative
          samples of natural ecosystems, must be safeguarded for
          the benefit of present and future generations through
          careful planning or management, as appropriate."
          Thus, there is no doubt about the fact that there is a
          responsibility bestowed upon the Government to protect
          and preserve the tanks, which are an important part of
          the environment of the area."


39.   In the case of Manohar Lal Sharma vs. Principal

Secretary, (2014) 2 SCC 532, this Court while considering the

power of the police officer observed as under:-

           "24. In the criminal justice system the investigation of
          an offence is the domain of the police. The power to
          investigate into the cognizable offences by the police
          officer is ordinarily not impinged by any fetters.
          However, such power has to be exercised consistent
          with the statutory provisions and for legitimate
          purpose. The courts ordinarily do not interfere in the
          matters of investigation by police, particularly, when
          the facts and circumstances do not indicate that the
          investigating officer is not functioning bona fide. In
          very exceptional cases, however, where the court finds
          that the police officer has exercised his investigatory
          powers in breach of the statutory provision putting the
          personal liberty and/or the property of the citizen in
          jeopardy by illegal and improper use of the power or
          there is abuse of the investigatory power and process
          by the police officer or the investigation by the police is
          found to be not bona fide or the investigation is tainted



                                                                          35
           with animosity, the court may intervene to protect the
          personal and/or property rights of the citizens."




40.   In the case of State of M.P. vs. Ram Singh, (2000) 5 SCC

88, this Court was considering an order by which the High Court

quashed    the     investigation     and     consequent        proceedings

conducted and concluded by the police under Section 13(1)(e)

and 13(2) of the Prevention of Corruption Act, 1988 on the

ground that the investigation had not been conducted by an

authorized officer in terms of Section 17 of the Act. The Court

held that the Act was intended to make effective provision for the

prevention of    bribery and corruption rampant amongst the

public servants. It is a social legislation intended to curb illegal

activities of the public servant and is designed to be liberally

construed so as to advance its object. The Court observed:-

          "9. The menace of corruption was found to have
          enormously increased by the First and Second World War
          conditions. Corruption, at the initial stages, was
          considered confined to the bureaucracy which had the
          opportunities to deal with a variety of State largesse in the
          form of contracts, licences and grants. Even after the war
          the opportunities for corruption continued as large
          amounts of government surplus stores were required to be
          disposed of by the public servants. As a consequence of
          the wars the shortage of various goods necessitated the
          imposition of controls and extensive schemes of post-war


                                                                          36
 reconstruction involving the disbursement of huge sums of
money which lay in the control of the public servants
giving them a wide discretion with the result of luring
them to the glittering shine of wealth and property. In
order to consolidate and amend the laws relating to
prevention of corruption and matters connected thereto,
the Prevention of Corruption Act, 1947 was enacted which
was amended from time to time. In the year 1988 a new
Act on the subject being Act 49 of 1988 was enacted with
the object of dealing with the circumstances, contingencies
and shortcomings which were noticed in the working and
implementation of the 1947 Act. The law relating to
prevention of corruption was essentially made to deal with
the public servants, not as understood in common
parlance but specifically defined in the Act.

                            xxxxx
14. It may be noticed at this stage that a three-Judge
Bench of this Court in H.N. Rishbud v. State of Delhi, AIR
1955 SC 196, had held that a defect or illegality in
investigation, however serious, has no direct bearing on
the competence or the procedure relating to cognizance or
trial. Referring to the provisions of Sections 190, 193, 195
to 199 and 537 of the Code of Criminal Procedure (1898)
in the context of an offence under the Prevention of
Corruption Act, 1947, the Court held:

    "A defect or illegality in investigation, however serious,
has no direct bearing on the competence or the procedure
relating to cognizance or trial. No doubt a police report
which results from an investigation is provided in Section
190 Cr.PC as the material on which cognizance is taken.
But it cannot be maintained that a valid and legal police
report is the foundation of the jurisdiction of the court to
take cognizance. Section 190 Cr.PC is one out of a group
of sections under the heading `Conditions requisite for
initiation of proceedings'. The language of this section is in
marked contrast with that of the other sections of the
group under the same heading, i.e., Sections 193 and 195
to 199.
    These latter sections regulate the competence of the
court and bar its jurisdiction in certain cases excepting in
compliance therewith. But Section 190 does not. While no



                                                                 37
 doubt, in one sense, clauses (a), (b) and (c) of Section
190(1) are conditions requisite for taking of cognizance, it
is not possible to say that cognizance on an invalid police
report is prohibited and is therefore a nullity. Such an
invalid report may still fall either under clause (a) or (b) of
Section 190(1), (whether it is the one or the other we need
not pause to consider) and in any case cognizance so
taken is only in the nature of error in a proceeding
antecedent to the trial. To such a situation Section 537
Cr.PC which is in the following terms is attracted:
    `Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a court of competent
jurisdiction shall be reversed or altered on appeal or
revision on account of any error, omission or irregularity
in     the    complaint,     summons,     warrant,      charge,
proclamation, order, judgment or other proceedings before
or during trial or in any inquiry or other proceedings
under this Code, unless such error, omission or
irregularity, has in fact occasioned a failure of justice.'
If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the
trial which follows it cannot be set aside unless the
illegality in the investigation can be shown to have brought
about a miscarriage of justice. That an illegality committed
in the course of investigation does not affect the
competence and the jurisdiction of the court for trial is
well settled as appears from the cases in -- `Parbhu v.
Emperor, AIR 1944 PC 73, and -- `Lumbhardar Zutshi v. R.,
AIR 1950 PC 26 "
It further held:
    "In our opinion, therefore, when such a breach is
brought to the notice of the court at an early stage of the
trial, the court will have to consider the nature and extent
of the violation and pass appropriate orders for such
reinvestigation as may be called for, wholly or partly, and
by such officer as it considers appropriate with reference
to the requirements of Section 5-A of the Act. It is in the
light of the above considerations that the validity or
otherwise of the objection as to the violation of Section 5(4)
of the Act has to be decided and the course to be adopted
in these proceedings, determined."




                                                                  38
 41.   In the case of Directorate of Enforcement vs.                Deepak

Mahajan, (1994) 3 SCC 440, the question came up for

consideration before this Court was as to whether a Magistrate

before whom a person arrested under Section 35 of the Foreign

Exchange Regulation Act, 1973 is produced, has jurisdiction to

authorize detention of that person under Section 167(2) of the

Code of Criminal Procedure. Answering that question the Court

observed:-

              "23. Keeping in view the cardinal principle of law that
          every law is designed to further the ends of justice but not
          to frustrate on the mere technicalities, we shall deal with
          all those challenges in the background of the principles of
          statutory interpretations and of the purpose and the spirit
          of the concerned Acts as gathered from their intendment.
              24. The concerned relevant provisions of the Acts with
          which we are concerned, no doubt, pose some difficulty in
          resolving the question with regard to the jurisdiction of the
          Magistrate     authorising detention and subsequent
          extension of the same when the provisions of those Acts
          are narrowly and literally interpreted. Though the function
          of the courts is only to expound the law and not to
          legislate, nonetheless the legislature cannot be asked to sit
          to resolve the difficulties in the implementation of its
          intention and the spirit of the law. In such circumstances,
          it is the duty of the court to mould or creatively interpret
          the legislation by liberally interpreting the statute.
                                 xxxxxxxxxxxx
              134. There are a series of decisions of various High
          Courts, of course with some exception, taking the view
          that a Magistrate before whom a person arrested by the



                                                                          39
           competent authority under the FERA or Customs Act is
          produced, can authorise detention in exercise of his
          powers under Section 167. Otherwise the mandatory
          direction under the provision of Section 35(2) of FERA or
          Section 104(2) of the Customs Act, to take every person
          arrested before the Magistrate without unnecessary delay
          when the arrestee was not released on bail under
          sub-section (3) of those special Acts, will become
          purposeless and meaningless and to say that the courts
          even in the event of refusal of bail have no choice but to
          set the person arrested at liberty by folding their hands as
          a helpless spectator in the face of what is termed as
          "legislative casus omissus" or legal flaw or lacuna, it will
          become utterly illogical and absurd."



42.   In the case of Maqbool Hussain vs. State of Bombay, AIR

1953 SC 325, the question that fell for consideration before the

Constitution Bench of this Court was whether by reason of the

proceedings taken by the Sea Customs authorities the appellant

could be said to have been prosecuted and punished for the

same offence with which he was charged in the court of the Chief

Presidency Magistrate, Bombay. In the said case, gold had been

brought by the appellant from Jeddah in contravention of the

provisions of Foreign Exchange Regulation Act, 1947.               He was

also liable to be prosecuted under the Sea Customs Act.                  The

prosecution was challenged as being violative of Article 20(2) of




                                                                          40
 the Constitution.       The Constitution Bench answering the

question held as under:

           "...There is no doubt that the act which constitutes an
           offence under the Sea Customs Act as also an offence
           under the Foreign Exchange Regulation Act was one
           and the same, viz., importing the gold in contravention
           of the notification of the Government of India dated the
           25th August, 1948. The appellant could be proceeded
           against under section 167(8) of the Sea Customs Act
           as also under section 23 of the Foreign Exchange
           Regulation Act in respect of the said act. Proceedings
           were in fact taken under section 167(8) of the Sea
           Customs Act which resulted in the confiscation of the
           gold. Further proceedings were taken under
           section 23 of the Foreign Exchange Regulation Act by
           way of filing the complaint aforesaid in the Court of
           the Chief Presidency Magistrate, Bombay, and the plea
           which was taken by the accused in bar of the
           prosecution in the Court of the Chief Presidency
           Magistrate, was that he had already been prosecuted
           and punished for the same offence and by virtue of the
           provisions of article 20(2) of the Constitution he could
           not be prosecuted and punished again."




43.   This Court further observed that:

           "The fundamental right which is guaranteed in
           article 20(2) enunciates the principle of "autrefois
           convict" or "double jeopardy". The roots of that
           principle are to be found in the well established rule of
           the common law of England "that where a person has
           been convicted of an offence by a court of competent
           jurisdiction the conviction is a bar to all further
           criminal proceedings for the same offence." (Per
           Charles J. in Reg. v. Miles 24, Q.B.D. 423. To the


                                                                       41
           same effect is the ancient maxim "Nemo bis debet
          punire pro uno delicto", that is to say that no one
          ought to be twice punished for one offence or as it is
          sometimes written "pro eadem causa", that is, for the
          same cause."




44.   In the case of State of Bombay vs. S.L. Apte, AIR 1961 SC

578, the question that fell for consideration was whether in view

of an earlier conviction and sentence under Section 409, IPC, the

subsequent prosecution for an offence under Section 105 of the

Insurance Act was barred by Section 26 of the General Clauses

Act and Article 20(2) of the Constitution.              Answering the

question, the Constitution Bench of this Court observed:

          "14. To operate as a bar the second prosecution and
          the consequential punishment thereunder must be for
          "the same offence". The crucial requirement, therefore
          for attracting the Article is that the offences are the
          same, i.e., they should be identical. If, however, the
          two offences are distinct, then notwithstanding that
          the allegations of facts in the two complaints might be
          substantially similar, the benefit of the ban cannot be
          invoked. It is, therefore, necessary to analyse and
          compare not the allegations in the two complaints but
          the ingredients of the two offences and see whether
          their identity is made out. It would be seen from a
          comparison of s. 105 of the Insurance Act and
          s. 405 of Indian Penal Code (s. 409 of the Indian Penal
          Code being only an aggravated form of the same
          offence) that though some of the necessary ingredients
          are common they differ in the following :


                                                                    42
 (1) Whereas under s. 405 of the Indian Penal Code the
accused must be "entrusted" with property or with
"dominion over that property", under s. 105 of the
Insurance Act the entrustment or dominion over
property is unnecessary; it is sufficient if the manager,
director, etc. "obtains possession" of the property.

(2) The offence of criminal breach of trust (s. 405 of the
Indian Penal Code) is not committed unless the act of
misappropriation or conversion or "the disposition in
violation of the law or contract", is done with a
dishonest intention, but s. 105 of the Insurance Act
postulates no intention and punishes as an offence the
mere withholding of the property - whatever be the
intent with which the same is done, and the act of
application of the property of an insurer to purposes
other than those authorised by the Act is similarly
without reference to any intent with which such
application or misapplication is made. In these
circumstances it does not seem possible to say that
the offence of criminal breach of trust under the
Indian Penal Code is the "same offence" for which the
respondents were prosecuted on the complaint of the
company charging them with an offence under
s. 105 of the Insurance Act.

15. This aspect of the matter based on the two
offences being distinct in their ingredients, content
and scope was not presented to the learned Judges of
the High Court, possibly because the decisions of this
Court construing and explaining the scope of
Art. 20(2) were rendered later. In Om Prakash Gupta v.
State of U.P. [1957] S.C.R. 423 the accused, a clerk of
a municipality had been convicted of an offence under
s. 409 of the Indian Penal Code for having
misappropriated sums of money received by him in his
capacity as a servant of the local authority and the
conviction had been affirmed on appeal, by the
Sessions Judge and in revision by the High Court. The
plea raised by the accused before this Court, in which
the matter was brought by an appeal with special
leave, was that s. 409 of the Indian Penal Code had
been repealed by implication by the enactment of
sub-ss. (1)(c) and (2) of s. 5 of the Prevention of



                                                             43
 Corruption Act because the latter dealt with an offence
of substantially the same type. This court repelled that
contention. It analysed the ingredients of the two
offences and after pointing out the difference in the
crucial elements which constituted the offences under
the two provisions, held that there was no repeal of
s. 409 of the Indian Penal Code implied by the
constitution of a new offence under the terms of the
Prevention of Corruption Act. It was the application of
this decision and the ratio underlying it in the context
of Art. 20(2) of the Constitution that is of relevance to
the present appeal. The occasion for this arose in State
of     Madhya      Pradesh     v.    Veereshwar      Rao
Agnihotry [1957] S.C.R. 868 The respondent was a
tax-collector under a municipality and was prosecuted
for offences among others under s. 409 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption
Act for misappropriation of sums entrusted to him as
such tax-collector. By virtue of the provision contained
in s. 7 of the Criminal Law Amendment Act, XLVI of
1952, the case was transferred to a Special Judge who
was appointed by the State Government after the
prosecution was commenced before a Magistrate. The
Special Judge found the accused guilty of the offence
under s. 409 of the Indian Penal Code and convicted
him to three years' rigorous imprisonment but as
regards the charge under s. 5(2) of the Prevention of
Corruption Act, he acquitted the accused on the
ground of certain procedural non-compliance with the
rules as to investigation prescribed by the latter
enactment. The respondent appealed to the High Court
against this conviction and sentence under s. 409 of
the Indian Penal Code and there urged that by reason
of his acquittal in respect of the offence under
s. 5(2) of the Prevention of Corruption Act, his
conviction under s. 409 of the Indian Penal Code could
not also be maintained, the same being barred by
Art. 20(2) of the Constitution. The High Court of
Madhya Bharat accepted this argument and allowed
the appeal and the State challenged the correctness of
this decision by an appeal to this Court. Allowing the
appeal of the State, Govinda Menon, J., delivering the
judgment of the Court observed :




                                                            44
                "This Court has recently held in Om Prakash
               Gupta v. The State of U.P. that the offence of
               criminal misconduct punishable under s. 5(2) of
               the Prevention of Corruption Act, II of 1947, is
               not identical in essence, import and content with
               an offence under s. 409 of the Indian Penal
               Code...... In view of the above pronouncement,
               the view taken by the learned Judge of the High
               Court that the two offences are one and the
               same, is wrong, and if that is so, there can be no
               objection to a trial and conviction under
               s. 409 of the Indian Penal Code, even if the
               respondent has been acquitted of an offence
               under s. 5(2) of the Prevention of Corruption Act
               II of 1947....... The High Court also relied on
               Art. 20 of the Constitution for the order of
               acquittal but that Article cannot apply because
               the respondent was not prosecuted after he had
               already been tried and acquitted for the same
               offence in an earlier trial and, therefore, the
               well-known maxim "Nemo debet bis vexari, si
               constat curiae quod sit pro una et eadem causa"
               (No man shall be twice punished, if it appears to
               the court that it is for one and the same cause)
               embodied in Art. 20 cannot apply."



45.   In the case of T.S. Baliah vs. ITO, AIR 1969 SC 701, the

question that arose for consideration before this Court was

whether the appellant could be simultaneously prosecuted under

Section 177, IPC and for violation of Section 52 of the Income Tax

Act, 1922.   Considering the provisions of Section 26 of the

General Clauses Act, this Court held as under:




                                                                    45
           "6. ....A plain reading of the section shows that there is
          no bar to the trial or conviction of the offender under
          both enactments but there is only a bar to the
          punishment of the offender twice for the same offence.
          In other words, the section provides that where an act
          or omission constitutes an offence under two
          enactments, the offender may be prosecuted and
          punished under either or both the enactments but
          shall not be liable to be punished twice for the same
          offence. We accordingly reject the argument of the
          appellant on this aspect, of the case.

          7. It was then contended on behalf of the appellant
          that the prosecution is illegal as complaint petition
          was required to be riled by the Inspecting Assistant
          Commissioner under the 1922 Act. In our opinion,
          there is no substance in this argument, Section 53 of
          the 1922 Act only requires that a person shall not be
          proceeded against for an offence under Section 51 or
          Section 52 of the 1922 Act "except at the instance of
          the Inspecting Assistant Commissioner". It is not
          disputed in the present case that the respondent has
          filed complaint petitions on the authority of the
          Inspecting Assistant Commissioner. There is no
          statutory requirement that the complaint petition itself
          must be filed by the Inspecting Assistant
          Commissioner. The clause "at his instance" in
          Section 53 of the 1922 Act only means "on his
          authority" and it is therefore sufficient compliance of
          the statutory requirement if the complaint petition is
          filed by the respondent on being authorised by the
          Inspecting Assistant Commissioner."




46.   In the case of Collector of Customs vs. Vasantraj

Bhagwanji Bhatia, 1988 (3) SCC 467, the question that arose

for consideration before this Court was as to whether a person

prosecuted under the Customs Act, 1962 was also liable to be



                                                                       46
 prosecuted under the Gold (Control) Act, 1968.                In that case,

person was acquitted from the charge of commission of offence

under the Customs Act.            Considering the question, whether

acquittal of that person will create a bar for subsequent

prosecution under the Gold (Control) Act, 1968, this Court

observed:

            "It is therefore evident that the ingredients required to
            be established in respect of the offence under the
            Customs Act are altogether different from the ones
            required to be established for an offence under the
            Gold (Control) Act. In respect of the former, the
            prosecution has to establish that there was a
            prohibition against the import into Indian sea waters
            of goods which were found to be in the possession of
            the offender. On the other hand in respect of the
            offence under the Gold (Control) Act, it is required to
            be established that the offender was in possession of
            primary gold meaning thereby gold of a purity of not
            less than 9 carats in any unfinished or semi-finished
            form. In regard to the latter offence it is not necessary
            to establish that there is any prohibition against the
            import of gold into Indian sea waters. Mere possession
            of gold of purity not less than 9 carats in any
            unfinished or semi-finished form would be an offence
            under the Gold Control Act. It is therefore stating the
            obvious to say that the ingredients of the two offences
            are altogether different. Such being the case the
            question arises whether the acquittal for the offences
            under the Customs Act which requires the prosecution
            to establish altogether different ingredients operates as
            a bar to the prosecution of the same person in




                                                                         47
           connection with the charge of having committed the
          offence under the Gold (Control) Act."


47.   In the case of Leo Roy Frey vs. Thomas Dana, AIR 1958

SC 119, the question that arose for consideration before the

Constitution Bench of this Court was as to whether conviction of

a person for an offence under Section 157(8)(c) of the Customs

Act will bar a subsequent trial for conspiracy, this Court

observed that:

          "The proceedings before the Customs authorities were
          under s. 167(8) of the Sea Customs Act. Under
          s. 186 of that Act, the award of any confiscation,
          penalty or increased rate of duty under that Act by an
          officer of Customs does not prevent the infliction of
          any punishment to which the person affected thereby
          is liable under any other law. The offences with which
          the petitioners are now charged include an offence
          under s. 120B, Indian Penal Code. Criminal
          conspiracy is an offence created and made punishable
          by the Indian Penal Code. It is not an offence under
          the Sea Customs Act. The offence of a conspiracy to
          commit a crime is a different offence from the crime
          that is the object of the conspiracy because the
          conspiracy precedes the commission of the crime and
          is complete before the crime is attempted or
          completed, equally the crime attempted or completed
          does not require the element of conspiracy as one of its
          ingredients. They are, therefore quite separate
          offences. This is also the view expressed by the United
          States Supreme Court in United States v.
          Rabinowich (1915) 238 U.S. 78. The offence of criminal
          conspiracy was not the subject matter of the



                                                                     48
            proceedings before the Collector of Customs and
           therefore it cannot be said that the petitioners have
           already been prosecuted and punished for the "same
           offence". It is true that the Collector of Customs has
           used the words "punishment" and "conspiracy", but
           those words were used in order to bring out that each
           of the two petitioners was guilty of the offence under
           s. 167(8) of the Sea Customs Act. The petitioners were
           not and could never be charged with criminal
           conspiracy before the Collector of Customs and
           therefore Art. 20(2) cannot be invoked. In this view of
           the matter it is not necessary for us, on the present
           occasion, to refer to the case of Maqbool Hussain
           v. The State of Bombay1953 SCR730 (AIR 1953 SC
           325) and to discuss whether the words used in
           Art. 20 do or do not contemplate only proceedings of
           the nature of criminal proceedings before a court of
           law or a judicial tribunal so ordinarily understood. In
           our opinion, Art. 20 has no application to the facts of
           the present case. No other points having been urged
           before us, these applications must be dismissed."




48.   Similar   provision   had    been    made     in   the   Wild   Life

(Protection) Act, 1972. Section 55 of the said Act is peri metria of

Section 21 of the MMDR Act.             Section 55 of the Wild Life

(Protection) Act, reads as under:

           "55. No court shall take congnizance of any offence
           against this Act except on the complaint of the Chief
           Wild Life Warden or such other officer as the State
           Government may authorize in this behalf."




                                                                       49
 49.   In the case of State of Bihar vs. Murad Ali Khan and

others, (1988) 4 SCC 655, accusation was made against the

persons by alleging that they shot and killed an elephant and

removed ivory tusks of the elephant.      On the basis of the

complaint lodged with the Judicial Magistrate, cognizance of the

offence was taken and process was issued. It was at the same

time that the Police registered a case under Sections 447, 429

and 379, IPC read with Sections 54 and 39 of the Wild Life

(Protection) Act, 1972 and the matter was investigated by the

Police. At this stage, one of the accused persons moved the High

Court under Section 482, Cr.P.C. to quash the order of the

Magistrate to take cognizance of the alleged offence.     The High

Court took the view that Section 210, Cr.P.C. is attracted and

that as an investigation by the Police was under progress in

relation to the same offence, the learned Magistrate would be

required to stay the proceedings on the complaint.       The High

Court further held that learned Magistrate acted without

jurisdiction in taking cognizance of the offence.       The matter




                                                                50
 ultimately came to this Court at the instance of State of Bihar.

Holding that Section 210 was not attracted, Their Lordships held:

       "24. We are unable to accept the contention of Shri R.F.
       Nariman that the specific allegation in the present case
       concerns the specific act of killing of an elephant, and
       that such an offence, at all events, falls within the
       overlapping areas between of Section 429 IPC on the one
       hand and Section 9(1) read with Section 50(1) of the Act
       on the other and therefore constitutes the same offence.
       Apart from the fact that this argument does not serve to
       support the order of the High Court in the present case,
       this argument is, even on its theoretical possibilities,
       more attractive than sound. The expression "any act or
       omission which constitutes any offence under this Act" in
       Section 56 of the Act, merely imports the idea that the
       same act or omission might constitute an offence under
       another law and could be tried under such other law or
       laws also.
             xxxxxxxx

       26. Broadly speaking, a protection against a second or
       multiple punishment for the same offence, technical
       complexities aside, includes a protection against
       re-prosecution after acquittal, a protection against
       re-prosecution after conviction and a protection against
       double or multiple punishment for the same offence.
       These protections have since received constitutional
       guarantee under Article 20(2). But difficulties arise in the
       application of the principle in the context of what is
       meant by "same offence". The principle in American law is
       stated thus:
          "The proliferation of technically different offences
          encompassed in a single instance of crime behaviour
          has increased the importance of defining the scope of
          the offence that controls for purposes of the double
          jeopardy guarantee.
             Distinct statutory provisions will be treated as
          involving separate offences for double jeopardy
          purposes only if `each provision requires proof of an
          additional fact which the other does not' (Blockburger



                                                                      51
     v. United States). Where the same evidence suffices to
    prove both crimes, they are the same for double
    jeopardy purposes, and the clause forbids successive
    trials and cumulative punishments for the two crimes.
    The offences must be joined in one indictment and
    tried together unless the defendant requests that they
    be tried separately.(Jeffers v.United States,[1977]432 US 137)"
    27. The expression "the same offence", "substantially
the same offence" "in effect the same offence" or
"practically the same", have not done much to lessen the
difficulty in applying the tests to identify the legal
common denominators of "same offence". Friedland in
Double Jeopardy (Oxford 1969) says at p. 108:
        "The trouble with this approach is that it is vague
    and hazy and conceals the thought processes of the
    court. Such an inexact test must depend upon the
    individual impressions of the judges and can give little
    guidance for future decisions. A more serious
    consequence is the fact that a decision in one case
    that two offences are `substantially the same' may
    compel the same result in another case involving the
    same two offences where the circumstances may be
    such that a second prosecution should be
    permissible...."
    28. In order that the prohibition is attracted the same
act must constitute an offence under more than one Act.
If there are two distinct and separate offences with
different ingredients under two different enactments, a
double punishment is not barred. In Leo Roy Frey v.
Superintendent, District Jail, the question arose whether a
crime and the offence of conspiracy to commit it are
different offences. This Court said:
   "The offence of conspiracy to commit a crime is a
   different offence from the crime that is the object of the
   conspiracy because the conspiracy precedes the
   commission of the crime and is complete before the
   crime is attempted or completed, equally the crime
   attempted or completed does not require the element
   of conspiracy as one of its ingredients. They are,
   therefore, quite separate offences."




                                                                      52
 50.   It is well known principle that the rule against double

jeopardy is based on a maxim nemo debet bis vexari pro una et

eadem causa, which means no man shall be put in jeopardy

twice for one and the same offence. Article 20 of the Constitution

provides that no person shall be prosecuted or punished for the

offence more than once.       However, it is also settled that a

subsequent trial or a prosecution and punishment has no bar if

the ingredients of the two offences are distinct.



51.   In the case of State of Rajasthan vs. Hat Singh, (2003) 2

SCC 152, a person was prosecuted for violation of prohibitory

order issued by the Collector under Sections 5 and 6 of the

Rajasthan Sati (Prevention) Ordinance, 1987. Against the said

Ordinance, mass rally took place which led to the registration of

FIRs against various persons for violation of prohibitory order

under Sections 5 and 6 of the Act. Persons, who were arrested,

moved a petition challenging the vires of the Ordinance and the

Act. The High Court upholding the vires of the Ordinance/Act

held that the provisions of Sections 5 and 6 overlapped each



                                                                53
 other and that a person could be found guilty only of the offence

of contravening a prohibitory order under either Section 6(1) or

Section 6(2) of the Act.       This Court discussing the doctrine of

double jeopardy and Section 26 of the General Clauses Act held

as under:

            "We are, therefore, of the opinion that in a given case,
            same set of facts may give rise to an offence
            punishable under Section 5 and Section 6(3) both.
            There is nothing unconstitutional or illegal about it. So
            also an act which is alleged to be an offence under
            Section 6(3) of the Act and if for any reason
            prosecution under Section 6(3) does not end in
            conviction, if the ingredients of offence under Section 5
            are made out, may still be liable to be punished under
            Section 5 of the Act. We, therefore, do not agree with
            the High Court to the extent to which it has been held
            that once a prohibitory order under sub-section (1) or
            (2) has been issued, then a criminal act done after the
            promulgation of the prohibitory order can be punished
            only under Section 6(3) and in spite of prosecution
            under Section 6(3) failing, on the same set of facts the
            person proceeded against cannot be held punishable
            under Section 5 of the Act although the ingredients of
            Section 5 are fully made out.




52.   Learned counsel appearing for the appellant put heavy

reliance on the decision of this Court in the case of Avtar Singh

vs. State of Punjab, AIR 1965 SC 666, in which the appellant

was prosecuted and convicted for theft of electrical energy under




                                                                        54
 Section 39 of the Indian Electricity Act, 1910.               The said

conviction was challenged on the ground that as his prosecution

was for an offence against the Act it was incompetent as it had

not been instituted at the instance of any person mentioned in

Section 50 of the Act. Section 39 of the Act provides that if a

person dishonestly abstracts, consumes or uses any energy shall

be deemed to have committed theft within the meaning of the

Indian Penal Code. It is not in dispute that the appellant had

committed the theft mentioned in this section. However,

Section 50 of the Act provides that no prosecution shall be

instituted against any person for any offence against the Act

except at the instance of the Government or an Electrical

Inspector, or of a person aggrieved by the same.             This Court

allowing the appeal held as under:

          "We may now refer to certain general considerations
          also leading to the view which we have taken. First, we
          find that the heading which governs Sections 39 to
          50 of the Act is "Criminal Offences and Procedure".
          Obviously, therefore, the legislature thought that
          s. 39 created an offence. We have also said that
          Sections 48 and 49 indicate that in the legislature's
          contemplation s. 39 provided for a punishment. That
          section must, therefore, also have been intended to
          create an offence to which the punishment was to
          attach. The word 'offence' is not defined in the Act.



                                                                     55
           Since for the reasons earlier mentioned, in the
          legislature's view s. 39 created an offence, it has to be
          held that that was one of the offences to which
          s. 50 was intended to apply. Lastly, it seems to us that
          the object of s. 50 is to prevent prosecution for
          offences against the Act being instituted by anyone
          who chooses to do so because the offences can be
          proved by men possessing special qualifications. That
          is why it is left only to the authorities concerned with
          the offence and the persons aggrieved by it to initiate
          the prosecution. There is no dispute that s. 50 would
          apply to the offences mentioned in Sections40 to 47.
          Now it seems to us that if we are right in our view
          about the object of s. 50, in principle it would be
          impossible to make any distinction between s. 39 and
          any of the sections from s. 40 to 47. Thus s. 40 makes
          it an offence to maliciously cause energy to be wasted.
          If in respect of waste of energy s. 50 is to have
          application, there is no reason why it should not have
          been intended to apply to dishonest abstraction of
          energy made a theft by s. 39. For all these reasons we
          think that the present is a case of an offence against
          the Act and the prosecution in respect of that offence
          would be incompetent unless it was instituted at the
          instance of a person named in s. 50."




53.   With due respect, the ratio decided by this Court can be

severally distinguished for the reason that the complaint or

allegation of dishonest abstraction of electricity as contemplated

under Section 39 making the act as a theft within the meaning of

the Indian Penal Code and be made and proved by person

possessing special qualification. In other words, whether there is

a dishonest abstraction of electrical energy, as mentioned in


                                                                      56
 Section    39   of    the   Act,   can    be   ascertained    only   by   a

person/Engineers having special qualification in that field.


54.    Last but not least, in addition to these decisions, in the

case of Institute of Chartered Accountants of India vs.

Vimal Kumar Surana and another, (2011) 1 SCC 534, this

Court has very elaborately dealt with similar provision under

the Chartered Accountants Act, 1949 (in short, `C.A. Act'). In

that    case,   the    respondent,       who   passed   the   Chartered

Accountant examination but was not a member of the

appellant's     Institute    of    Chartered      Accounts,     allegedly

represented before the Income Tax Department and the

authorities constituted under the Madhya Pradesh Trade Tax

Act on the basis of power of attorney or as legal representative

and submitted documents such as audit reports and certificates

required to be issued by the Chartered Accountants by

preparing forged seals and thereby impersonated himself as

Chartered Accountant.         He was accordingly prosecuted and

charge was framed against him under Sections 419, 468, 471

and 472, IPC.        The respondent challenged the order by filing


                                                                          57
 revision under Section 397, Cr.P.C.    The Additional Sessions

Judge set aside the order of the Magistrate and remanded the

case to the trial court with a direction to decide whether there

are sufficient grounds for framing charges under Sections 419,

468, 471 and 473, IPC read with Sections 24 and 26 of the C.A.

Act. After remand, the trial court passed an order holding that

there was no basis for framing any charge against respondent

under the IPC.   The Magistrate further held that cognizance of

offences under Sections 24 and 26 of the C.A. Act cannot be

taken because no complaint had been filed by or under the

order of the Council before the Magistrate.    The revision filed

against the orders of the Magistrate was dismissed. The High

Court referring Sections 2, 4, 5 and Section 195(1), Cr.P.C. held

that in the absence of a complaint the Magistrate was not

competent to frame charges against the respondent. The High

Court further held that in view of the special mechanism

contained in the C.A. Act for prosecution of a person violating

Sections 24, 24A and 26 of the Act, he cannot be prosecuted

under the IPC. The matter finally came to this Court. Allowing



                                                                58
 the appeal, this Court considered catena of decisions and held

as under:


            "24. Such an unintended consequence can be and
            deserves to be avoided in interpreting Sections 24-A,
            25 and 26 keeping in view the settled law that if there
            are two possible constructions of a statute, then the
            one which leads to anomaly or absurdity and makes
            the    statute   vulnerable     to    the   attack    of
            unconstitutionality should be avoided in preference to
            the other which makes it rational and immune from
            the charge of unconstitutionality. That apart, the court
            cannot interpret the provisions of the Act in a manner
            which will deprive the victim of the offences defined in
            Sections 416, 463, 464, 468 and 471 of his right to
            prosecute the wrongdoer by filing the first information
            report or complaint under the relevant provisions of
            CrPC."

                        xxxxxxxxxxxx

            42. The submission of Shri Gupta that the respondent
            cannot be prosecuted for the offences defined under
            IPC because no complaint had been filed against him
            by the court concerned or authority as per the
            requirement of Section 195(1)(b)(ii) CrPC sounds
            attractive but lacks merit. The prohibition contained in
            Section 195 CrPC against taking of cognizance by the
            court except on a complaint in writing made by the
            court concerned before which the document is
            produced or given in a proceeding is not attracted in
            the case like the present one because the officers of
            the Income Tax Department and the authorities
            constituted under the Madhya Pradesh Trade Tax Act,
            1995 before whom the respondent is alleged to have
            acted on the basis of power of attorney or as legal
            representative or produced audit report do not fall
            within the ambit of the term "court" as defined in
            Section 195(3) CrPC. Such officer/authorities were
            neither discharging the functions of a civil, revenue or
            criminal court nor could they be treated as tribunal
            constituted by or under the Central or State Act,


                                                                       59
            which is declared to be a court for the purpose of
           Section 195."


55.    There cannot be any two opinions that natural resources

are the assets of the nation and its citizens. It is the obligation of

all concerned, including the Central and the State Governments,

to conserve and not waste such valuable resources. Article 48-A

of the Constitution requires that the State shall endeavour to

protect and improve the environment and safeguard the forests

and wild life of the country. Similarly, Article 51-A enjoins a duty

upon    every   citizen   to   protect   and   improve   the    natural

environment including forests, lakes, rivers and wild life, and to

have compassion for all the living creatures. In view of the

Constitutional provisions, the Doctrine of Public Trust has

become the law of the land. The said doctrine rests on the

principle that certain resources like air, sea, waters and forests

are of such great importance to the people as a whole that it

would be highly unjustifiable to make them a subject of private

ownership.




                                                                     60
 56.   Reading the provisions of the Act minutely and carefully,

prima facie we are of the view that there is no complete and

absolute bar in prosecuting persons under the Indian Penal Code

where the offences committed by persons are penal and

cognizable offence.




57.    Sub-section (1A) of Section 4 of the MMDR Act puts a

restriction in transporting and storing any mineral otherwise

than in accordance with the provisions of the Act and the rules

made thereunder.      In other words no person will do mining

activity without a valid lease or license. Section 21 is a penal

provision according to which if a person contravenes the

provisions of Sub-section (1A) of Section 4 shall be prosecuted

and punished in the manner and procedure provided in the Act.

Sub-section (6) has been inserted in Section 4 by amendment

making    the   offence   cognizable   notwithstanding   anything

contained in the Code of Criminal Procedure 1973.




                                                               61
 58.    Section 22 of the Act puts a restriction on the court to take

cognizance of any offence punishable under the Act or any rule

made thereunder except upon a complaint made by a person

authorized in this behalf.

59.    It is very important to note that Section 21 does not begin

with     a    non-obstante     clause.   Instead    of   the     words

"notwithstanding anything contained in any law for the time

being in force no court shall take cognizance.....", the Section

begins with the words "no court shall take cognizance of any

offence."

60.    It is well known that a non-obstante clause is a legislative

device which is usually employed to give overriding effect to

certain provisions over some contrary provisions that may be

found either in the same enactment or some other enactment,

that is to say, to avoid the operation and effect of all contrary

provisions.

61.    In Liverpool Borough vs. Turner Lord Campbell (1861),

30 L.J. Ch.379, C.J. at page 380 said :-

                   "No universal rule can be laid down for the
             construction of statutes, as to whether mandatory



                                                                    62
            enactments shall be considered directory only or
           obligatory,  with    an   implied   nullification   for
           disobedience. It is the duty of courts to try to get at
           the real intention of the legislature by carefully
           attending to the whole scope of the statute to be
           construed."




62.   In Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC

140 at page 141, the Supreme Court while interpreting the

mandatory and directory provisions of statute observed as under:-

                  "We do not think that is right and we deprecate
           this tendency towards technicality; it is the substance
           that counts and must take precedence over mere form.

           Some rules are vital and go to the root of the matter;
           they cannot be broken; others are only directory and a
           breach of them can be overlooked provided there is
           substantial compliance with the rules read as whole
           and provided no prejudice ensues; and when the
           legislature does not itself state which Judges must
           determine the matter and exercising a nice
           discrimination, sort out one class from the other along
           broad based, commonsense lines."

63.   The question is whether a statute is mandatory or directory

depends upon the intent of the Legislature and not upon the

language in which the intent is clothed.             The meaning and

intention of the legislature must govern, and these are to be

ascertained, not only from the phraseology of the provision, but




                                                                     63
 also by considering its nature, its design, and the consequences

which would follow from construing it the one way or the other.

64.          In Maxell on the Interpretation of Statutes 10th Edn. at

page 381, it is stated thus :-

                    "On the other hand, where the prescriptions of a
             statute relate to the performance of a public duty and
             where the invalidation of acts done in neglect of them
             would work serious general inconvenience or injustice
             to persons who have no control over those entrusted
             with the duty without promoting the essential aims of
             the legislature, such prescriptions seem to be generally
             understood as mere instructions for the guidance and
             government of those on whom the duty is imposed, or,
             in other words, as directory only. The neglect of them
             may be penal, indeed, but it does not affect the validity
             of the act done in disregard of them."



65.    In the case of State of U.P. vs. Babu Ram Upadhya, AIR

1961    SC    751,    while    interpreting     a   particular    statute   as

mandatory or directory this Court observed :-

                     "When a statute uses the word `shall', `prima
             facie', it is mandatory, but the court may ascertain the
             real intention of the legislature by carefully attending
             to the whole scope of the statute. For ascertaining the
             real intention of the legislature the court may
             consider, inter alia, the nature and the design of the
             statute, and the consequences which would follow
             from construing it the one way or the other, the impact
             of other provisions whereby the necessity of complying
             with the provisions in question is avoided, the
             circumstance, namely, that the statute provides for a
             contingency of the non-compliance with the
             provisions, the fact that the non-compliance with the
             provisions is or is not visited by some penalty, the


                                                                            64
            serious or trivial consequences that flow therefrom,
           and, above all, whether the object of the legislation will
           be defeated or furthered."



66.   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 river bed.

67.   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 eco-system of

the rivers and safety of bridges. It also weakens river beds, 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 ground water levels.



68.   There cannot be any dispute with regard to restrictions

imposed under the MMDR Act and remedy provided therein. In


                                                                          65
 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 authorized 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 authorized officer. In

case of breach and violation of Section 4 and other provisions of

the Act, the police officer cannot insist 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 sought to be

prosecuted for contravention of Section 4 of the Act and not for

any act or omission which constitute an offence under Indian

Penal Code.


69.   However, there may be situation where a person without

any lease or licence or any authority enters into river and


                                                                  66
 extracts sands, gravels 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 laible to be    punished for committing such offence

under Sections 378 and 379 of the Indian Penal Code.


70.   From a close reading of the provisions of 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, gravels and other minerals from the

river, which is the property of the State, out of State's possession

without the consent, constitute an offence of theft.




71.   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



                                                                   67
 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 person. In other

words, in a case where there is a theft of sand and gravels from

the Government land, the police can register a case, investigate

the same and submit a final report under Section 173, Cr.P.C.

before a Magistrate having jurisdiction for the purpose of taking

cognizance as provided in Section 190 (1)(d) of the Code of

Criminal Procedure.




72.   After giving our thoughtful consideration in the matter, in

the light of relevant provisions of the Act vis-`-vis the Code of

Criminal Procedure and the Indian Penal Code, we are of the

definite opinion that the ingredients constituting the offence

under the MMDR Act and the ingredients of dishonestly removing

sand and gravel from the river beds without consent, which is the

property of the State, is a distinct offence under the IPC. Hence,

for the commission of offence under Section 378 Cr.P.C., on


                                                               68
 receipt of the police report, the Magistrate having jurisdiction can

take cognizance of the said offence without awaiting the receipt of

complaint that may be filed by the authorized officer for taking

cognizance in respect of violation of various provisions of the

MMRD Act.       Consequently the contrary view taken by the

different High Courts cannot be sustained in law and, therefore,

overruled. Consequently, these criminal appeals are disposed of

with a direction to the concerned Magistrates to proceed

accordingly.


                                         ..................................J.
                                                           [ M.Y. Eqbal ]


                                         ..................................J.
                                         [Pinaki Chandra Ghose]
New Delhi
September 04, 2014




                                                                          69
 ITEM NO.1A                     COURT NO.12                      SECTION II
(For Judgment)
                  S U P R E M E C O U R T O F           I N D I A
                          RECORD OF PROCEEDINGS

Criminal Appeal    No.499/2011

STATE OF NCT OF DELHI                                       Appellant(s)

                                      VERSUS
SANJAY                                                     Respondent(s)

WITH Crl.A. Nos.2108-2112/2013
Crl.A. No.2107/2013
Crl.A. No.2106/2013
Crl.A. No.2105/2013

Date : 04/09/2014 These appeals were called on for pronouncement of
judgment today.

For Appellant(s)         Mrs. Anil Katiyar,Adv.

                         Mr. Abhijat P. Medh,Adv.

                         Mr. Nikhil Goel,Adv.

                         Mr. A. Venayagam Balan,Adv.

For Respondent(s)        Mr. R. C. Kaushik,Adv.

                         Ms. Pinky Behra, Adv.
                         Ms. Preeti Bhardwaj, Adv.
                         For Ms. Hemantika Wahi,Adv.


     Hon'ble     Mr.   Justice   M.   Y.   Eqbal   pronounced     the    Reportable
Judgment of the Bench comprising of His Lordship and Hon'ble Mr.
Justice Pinaki Chandra Ghose.
     These     appeals   are     disposed    of    in   terms    of     the   signed
reportable judgment.


     (SANJAY KUMAR)                                (SNEH LATA SHARMA)
      COURT MASTER                                   COURT MASTER


         (Signed Reportable Judgment is placed on the file)



                                                                                 70
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