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
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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
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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:-
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"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?
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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.
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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.
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(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
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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
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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.
...................."
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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
71
Monday 8 September 2014
Hon'ble Apex Court's Judgments on sand mining-Offence U/s 378/379 can be registered.
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