REPORTABLE
IN THE
SUPREME COURT OF INDIA CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO.1920 OF 2019 ARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019
KANWAR PAL SINGH
..... APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH AND ANOTHER
.....RESPONDENT(S)
SANJIV KHANNA, J.
J U D G M E N T
Leave granted.
2. Kanwar Pal
Singh, the appellant, impugns the order dated 22nd July 2019 whereby the High Court of
Judicature at Allahabad has dismissed
his petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Code’
for short) for quashing criminal
prosecution under Section 379 of the Indian Penal Code, 1860 (‘IPC’ for short), Rules 3, 57 and 7 of
the Uttar Pradesh Minor Mineral
(Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (‘Mines Regulation Act’ for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984
arising out of Crime Case No. 289 of 2018, Police Station
Vindyachal, District Mirzapur,
Uttar Pradesh. The appellant had also challenged, without success before the High Court, the order dated 8th
February 2019 passed by the Chief Judicial
Magistrate taking cognizance and summoning the appellant for trial.
3.
In brief, the facts of the case are that on the basis
of a complaint filed by one Mr. S.K.
Pal, Surveyor, Mines Department, District Mirzapur,
FIR No. 0289 dated 15th November 2018 was registered at Police Station,
Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur,
the Nayab Tehsildar had noticed
illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the
Sub-Divisional Magistrate, Sadar. The
appellant is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which was granted rights to excavate sand vide mining
lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring
12.35 acre in Village Nandni.
However, it is alleged that the appellant
was mining sand outside the permitted area in Village
Babhni numbered as 534/2 where he had illegally excavated
a pit 50 feet long,
50 feet wide and 2 meter deep. Consequently, the District
Magistrate had ordered
for immediate registration of the FIR under the aforesaid provisions.
4. Though
a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during
the course of arguments before us
restricted his submissions to the violation
of Section 22 of the Mines Regulation Act and the legal effect thereof. Referring to the contents of the FIR, it is
submitted that the appellant has been
wrongly charge-sheeted by the police for
the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of
the Mines Regulation Act. It is
highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section
22 no court can take cognizance of the offences
under the Mines Regulation Act, except
on a complaint in writing by a person authorised by the Central or State Government. The State police not being authorised,
could not have filed the charge-sheet/complaint. The contention predicated on Section 22 of the Mines Regulation Act is made by relying
upon the judgment
of this Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation1. In the
written submissions filed by the appellant, a relatively new plea and contention has been raised
by relying upon the judgments of this Court in Belsund Sugar
Company Limited v. State of Bihar,2 Sharat Babu Digumarti v. Government of NCT
of Delhi3
and Suresh Nanda v. Central Bureau of Investigation4 to urge that the Mines Regulation
Act being a special statute, prosecution
for an offence under Section 379 of the IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining
in Sanjay (supra) was registered suo moto due to non-production of any
document to establish mining rights
and therefore, the ratio in that case would apply
only to cases of illegal mining where the mining lease had already
been revoked or there was no subsisting mining lease.
5.
We find the submission of the appellant
to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting
judgments of the Delhi High Court,
Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be
prosecuted for the offences under Sections
379/114 and other provisions of the IPC on the allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under:
“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 a person authorised in this behalf
by the Central Government or the State Government.”
After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define
‘cognizable offence’, ‘complaint’ and ‘investigation’ respectively, this Court had referred
to Section 4 of
the Code, which reads
as under:
“4. Trial of offences
under the Indian Penal Code and other
laws.— (1)
All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any
other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.”
As per sub-section (2) to Section 4, all offences under any law, other than the IPC, can be investigated,
inquired into and tried under the
Code, subject to any enactment regulating the manner or place of investigation, trial etc. of such offences. Section
21 of the Mines Regulation Act, it was observed, states that the offences specified
thereunder are cognizable. Section 41 of the
Code was referred to elucidate that the police has the power to arrest without warrant in case of cognizable
offences. Sections 149 to 152 of
Chapter XI of the Code that require the police to prevent cognizable offences either by arrest or otherwise, etc. were referred, to hold that the
aforementioned provisions 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 also to prosecute such persons in accordance with law.
Accordingly, in Sanjay (supra)
it was held that the investigation of the
offences is within the domain of the police and the power of a police officer to investigate into cognizable offences
is not ordinarily impinged by any fetters
albeit the power must be exercised as per the statutory provisions and for legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached
the statutory provisions and put the personal
liberty and/or the property of a citizen in jeopardy by an illegal
and improper use of the powers or when the investigation
by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue,
this Court in
Sanjay (supra) took
notice of the decision in
H.N. Rishbud
v.
State of Delhi6 wherein
t
his
Court
has
held
t
hat
a
defect or illegality in investigation, however serious, has no direct
bearing on the competence or the procedure
relating to the taking
of the
cognizance or trial. The cardinal principle of law as noted by
t
his
Court
in
Directorate of Enforcement v.
Deepak Mahajan7 is that every law is designed to further
the ends of justice and should
not
be frustrated on mere technicalities. The public trust doctrine
was
cited
and
applied
to
underscore
the
principle
that
certain
resources like air, sea, water, forests
and minerals are of great
importance
to the people as a whole and that the government is
enjoined to hold such resources in trust for the benefit of the
general public and to use them for their
benefit than to serve
private
interests.
6.
This Court in Sanjay (supra) has
cited several decisions wherein the
challenge to the prosecution on the ground that there can be no multiplicity of offences under
different enactments was resolved and answered by relying upon Section 26
of the General Clauses Act, which we would like to reproduce for the sake of convenience:
“26. Provision as to
offences punishable under two or more enactments.— Where an act or omission
constitutes an offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either
or any of those enactments, but shall not be
liable to be punished twice for the same offence.”
Section 26
of the General Clauses Act permits prosecution for ‘different offences’ but bars prosecution and punishment twice
for the ‘same offence’ under two or
more enactments. The expression ‘same
offence’ has been interpreted by this Court in numerous decisions
viz., Maqbool Hussain
v. State of Bombay8 with reference to the provisions of the Sea Customs
Act and the Foreign Exchange
Regulation Act, 1947; Om Parkash Gupta v.
State of U.P.9
and State of Madhya Pradesh v. Veereshwar Rao
Agnihotri10 with reference to Section 409 of the IPC and Section 5(2) of the Prevention of Corruption Act;
T.S. Baliah v. ITO11 with reference to Section 52 of the Income Tax Act, 1922 and
Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji Bhatia12, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v.
Murad Ali Khan13 with
r
ef
er
ence
to
t
he
pr
ovis
ions
of
Sect
ions 447,
429
and
379
of
the
IPC
and
provisions
of
the
Wildlife
(Protection) Act,
1972;
Avtar
Singh v. State of
Punjab14 with reference to Section
39 of the Electricity Act, 1910 and the provisions of theft under the IPC; and Institute of
Chartered Accountants of India v. Vimal Kumar Surana15 with reference to
the provisions of the Chartered
Accountants Act, 1949 and offences
under Sections 419, 468, 471 and 472 of the IPC. Elucidating on the provisions of Section 4
read with Sections 21 and 22 of the
Mines Regulation Act and the offence under Section 379 of the IPC, it was observed in Sanjay (supra): “69. Considering the principles of interpretation and the wordings used in Section 22, in our
considered opinion, the provision is not a complete and absolute bar for taking
action by the police for illegal and dishonestly committing theft of minerals including sand from the
riverbed. The Court shall take
judicial notice of the fact that over the years rivers in India have been affected
by the alarming rate of unrestricted
sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens
riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal
activities are not stopped by the
State and the police authorities of the State, it will cause serious repercussions as mentioned
hereinabove. It will not only change
the river hydrology but also will deplete the
groundwater levels. There cannot be any
dispute with regard to restrictions imposed
under the MMDR Act and remedy provided therein. In any case, where there is a mining activity
by any person in
contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the
powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute
that the Magistrate shall in such cases take cognizance on the basis of
the complaint filed before it by a duly
authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking
cognizance under the Act on the basis of the record submitted
by the police alleging
contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by the officer is attracted only when such person
is sought to be prosecuted for
contravention of Section 4 of the Act and not
for any act or omission which constitutes an offence under the Penal
Code.
71. However, there may be a situation
where a person without any
lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine
manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing
such offence under Sections 378 and 379 of the
Penal Code.
72.
From a close reading of the provisions of the
MMDR Act and the offence defined
under Section 378 IPC, it is manifest that the ingredients constituting
the offence are different. The contravention of terms and conditions of mining lease or doing mining activity
in violation of Section 4 of the Act is an offence
punishable under Section
21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which
is the property of the State, out of
the State’s possession without the consent,
constitute an offence
of theft. Hence, merely because
initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint
cannot and shall not debar the police
from taking action against persons for committing theft of sand and minerals
in the manner mentioned above
by exercising power under the Code of Criminal Procedure
and submit a report before the Magistrate for taking cognizance against
such persons. In other words, in a
case where there is a theft of sand and gravel
from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate
having jurisdiction for the purpose
of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal
Procedure.”
7.
As noticed above, in the written
submissions the appellant has relied
upon Belsund
Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and
Suresh
Nanda (supra) to contend that
where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as
quoted above which specifically
refers to Section 26 of the General Clauses Act and states that the offence
under Section 4 read with Section 21 of the Mines Regulation Act is different
from the offence
punishable under Section 379 of the IPC. Thus, they are two ‘different’ and not the ‘same offence’. It
would be relevant to state here that the Delhi High Court in its decision reported
as Sanjay v. State16,
which
was
im
pugned
in
Sanjay (su
pr
a),
had
accept
ed an identical argument to hold that once
an offence is punishable
under
Section 21 of the Mines Regulation Act, the offence would
not be punishable under Section 379 of the
IPC. This reasoning
was rejected by
this Court and the judgment of the Delhi High
Court
was
reversed.
The
contention
relying
on
the
same
reasoning
before
us,
therefore,
must
be
rejected.
8.
We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378
of the IPC as sand is an immovable
property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated
and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the
earth, ergo, it is a movable property
or goods capable
of being stolen.
{See Explanation 1 to Section
378 of the IPC and Sanjay (supra) as quoted above}
9.
We would in the end refer to the judgment in Jeewan Kumar
Raut (supra) on which considerable reliance was placed by
the appellant at the time of the hearing. The said judgment
was distinguished in Institute of Chartered
Accountants (supra) by observing
that the provisions of the Transplantation of Human Organs Act, 1994 (‘TOHO Act’ for short) were different and were not similar to the provisions of
sub-section 2 to Section 24-A, 25 and
26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. We would like to further
elucidate and explain that in Jeewan Kumar Raut (supra)
this Court was examining the right of
the appellant therein to claim statutory bail in terms of sub-section (2) to Section
167 of the code on the ground that the Central Bureau of Investigation (‘CBI’ for short) had failed to file the charge-sheet within
90 days from
the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person
duly authorised by a competent authority, it was observed
that the TOHO Act
is a special law which deals with the subjects mentioned therein,
viz., offences relating to the
removal of human organs, etc. Ordinarily, any person can set the criminal law into
motion but the legislature keeping in
view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein.
Thereafter, reference was made to
Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by
the provisions of said Act, which would prevail
over the provisions of the Code. Reference was made to clause (iv) of sub-section (3) to Section
13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach
of any of the provisions of the said
Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines
Regulation Act i.e. the Mines and Minerals (Development and
Regulation) Act, 1957.
10.
In Jeewan Kumar Raut (supra), it
was noted that the CBI has been
designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to
carry on investigation. In this
context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the
police report filed by the CBI was only a complaint petition
made by an appropriate authority in terms of Section 22 of the
TOHO Act. Consequently, sub-section (2) to Section 167 of the Code
would not be attracted as the CBI
could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra)
was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is
undisputed that decisions of the
courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The
court decisions expound
on the law as applicable to the specific
circumstances of each case and such exposition may not therefore be necessarily applicable to
another case given its own peculiarities.
Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit.
11.
We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta
High Court in Seema Sarkar v. State17 wherein the High Court held the proceedings to
be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by
the police under Section 21(2) of the
Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided.
The High Court had further
observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have
already noted the decision of the Delhi High Court which had directed that the FIR should not be
treated as registered under Section
379 of the IPC but only under Section 21 of the Mines Regulation Act. These
decisions of the Calcutta High Court and the
Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the
expression ‘same offence’, to observe
that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are
different and distinct. The aforesaid
reasoning compels us to reject the contention of the appellant
that the action as impugned in the FIR is
a
mere
violation
of
Section
4
which
is
an
offence
cognizable
only under
Section 21 of the Mines Regulation Act and not under
any
other
law.
There
is
no
bar
on
the
Court
from
taking
cognizance
of
the
offence
under
Section
379
of
the
IPC.
We
would
also
observe
that
the
violation
of
Section
4
being
a
cognizable
offence, the police could have always investigated the
same, there being no bar under the Mines Regulation Act, unlike
Section
13(3)(iv)
of
the
TOHO
Act.
12.
In view of the aforesaid discussion, we would uphold
the order of the High Court refusing
to set aside the prosecution and cognizance of the
offence taken by the learned Magistrate under
Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would,
however, clarify that prosecution and
cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in
the absence of the authorisation.
Further, our observations in deciding and
answering the legal issue before us should not be treated as findings on the factual allegations made
in the complaint. The trial court
would independently apply its mind to the factual allegations and decide the charge in accordance with
law. In light of the aforesaid observations, the appeal is partly allowed,
as we have upheld the prosecution and cognizance of the offence
under Section 379 of the IPC
and Sections 3 and 4 of the Prevention of Damage
to Public Property Act. There would be no order as to costs.
J. (S. ABDUL NAZEER)
J. (SANJIV KHANNA)
NEW DELHI; DECEMBER
18, 2019.
