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Monday, September 15, 2014

Sec.21,22 of MMDR Act - vs- Sec. 378,379 /114 of I.P.C. - 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 under the provisions of Mines and Minerals (Development and Regulation) Act - Apex court held that 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 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. = CRIMINAL APPEAL NO. 499 OF 2011 STATE OF NCT OF DELHI … Appellant(s) Versus SANJAY … Respondent(s) = 2014 Sept. Month - http://judis.nic.in/supremecourt/filename=41874

 Sec.21,22 of MMDR Act - vs- Sec. 378,379 /114 of I.P.C. - 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 under the  provisions of Mines and Minerals (Development and Regulation) Act - Apex court held that 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 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. =

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 under the  provisions
of Mines and Minerals (Development and Regulation) Act. =

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 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 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 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.
After giving our thoughtful consideration in the matter, in the  light
of relevant provisions of the Act vis-à-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 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.

2014 Sept. Month - http://judis.nic.in/supremecourt/filename=41874
                                                                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)

                                   Versus

STATE OF GUJARAT AND ANOTHER           …  Respondent(s)



                       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 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.    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 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 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-à-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:-

“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?



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.

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
(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 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  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  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  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 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 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 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.


(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 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 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 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 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;

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 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.
………………..”


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 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 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 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.

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  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 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.”


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.”[pic]


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 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 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:
[pic]“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-à-
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 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 [pic]and process  by  the
police officer or the investigation by the police is found to  be  not  bona
fide  or  the  investigation  is  tainted  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 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 [pic]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 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.”[pic]


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 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  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 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 :


(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 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 :

"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:

“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 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 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
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.   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
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  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  [pic]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.”

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  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 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.
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
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 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
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.”

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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, 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.



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.

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 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 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 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 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 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 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-à-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 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






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