whether the provisions contained in Sections 21, 22 and other Sections of the MMDR Act operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Sections 379/414 and other provisions of the Penal Code (IPC). The question which arose was, whether the provisions of the MMDR Act explicitly or impliedly exclude the provisions of the Penal Code (IPC) when the act of an accused is an offence both under the Penal Code and under the provisions of the MMDR Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.824825 OF 2020
(Arising from SLP(Criminal) Nos.26402641/2020)
Jayant Etc. …Appellants
Versus
The State of Madhya Pradesh …Respondent
WITH
CRIMINAL APPEAL NO.826 OF 2020
(Arising from SLP(Criminal) No.4549/2020)
State of Madhya Pradesh …Appellant
Versus
Jayant …Respondent
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 11.05.2020 passed by the
1
High Court of Madhya Pradesh, Bench at Indore in M.Cr.C No.
49338/2019 and M.Cr.C. No. 49972/2019, the original petitioner
as well as the State of Madhya Pradesh have preferred the
present appeals.
By the impugned common judgment and order, the High
Court has dismissed the aforesaid applications filed under
Section 482 Cr.P.C. to quash the respective FIRs for the offences
under Sections 379 and 414, IPC, Sections 4/21 of the Mines &
Minerals (Development & Regulation) Act, 1957 (hereinafter
referred to as the ‘MMDR Act’) and under Rule 18 of the M.P.
Minerals (Prevention of illegal Mining, Transportation and
Storage) Rules, 2006 (hereinafter referred to as the ‘2006 Rules’).
3. The facts in nutshell are as under:
On a surprise inspection, the respective Mining Inspectors
checked the tractor/trolleys of the private appellants along with
the minor mineral (sand/storage/yellow soil etc.) loaded in them.
They handed over the tractor/trolleys to the concerned police
stations to keep them in safe custody. Finding the private
appellants indulged in illegal mining/transportation of minor
mineral, the mining Inspectors prepared their respective cases
under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996
2
(hereinafter referred to as the ‘1996 Rules’) and submitted them
before the Mining Officers with a proposal of compounding the
same for the amount calculated according to the concerned 1996
Rules. The concerned Mining Officers submitted those cases
before the Collector, who approved the proposal. The violators
accepted the decision and deposited the amounts determined by
the Collector for compounding the cases. Their tractor/trolleys
along with the minerals, which were illegally
excavated/transported, were released.
3.1 That after some time, a news was published in a daily
newspaper – Bhaskar on 8.9.2019 with respect to illegal
excavation/transportation of mineral sand from Chambal, Shivna
and Retam and other Tributary rivers flow from District
Mandsuar and in surrounding places. It was revealed that due to
illegal transportation of the minerals and without payment of
royalty, revenue loss is occurring. It was reported that illegal
mining, storage and transportation of mineral sand was being
carried out at large scale. Similar kind of information was also
subsequently published on 3.10.2019 in the daily newspaper –
Bhaskar in Mandsuar edition. It was also reported that despite
the offences under Sections 379 and 414, IPC and the offences
3
under the MMDR Act and the 2006 Rules were found attracted,
necessary legal action has not been taken and the violators were
permitted to go on compounding the offence under Rule 53 of the
1996 Rules. The learned Judicial Magistrate, First Class,
Mandsuar took note of the aforesaid information and having
taken note of the decision of this Court in the case of State (NCT
of Delhi) v. Sanjay, (2014) 9 SCC 772 taking the view that offences
under the IPC and offences under the MMDR Act are distinct and
different and it is permissible to lodge/initiate the proceedings for
the offences under the IPC as well as under the MMDR Act, the
learned Magistrate in exercise of powers conferred under Section
156(3), Cr.P.C. (suo motu) directed to register criminal case
under Section 156(3) Cr.P.C. for initiation of investigation and for
submitting of report after due investigation is conducted. The
learned Magistrate also directed the concerned Incharge/SHOs
of the concerned police stations to register the first information
report and a copy of the first information report be sent to the
learned Magistrate as per the provisions of Section 157, Cr.P.C.
3.2 That pursuant to the order passed by the learned
Magistrate, the Incharge/SHOs of the concerned police stations
lodged separate FIRs for the aforesaid offences for illegal
4
mining/transportation of sand, particulars of which are as
under:
Sr.No
.
MCRC NO. FIR NO/DATE POLICE
STATION
Date of
Incident
1 49338/2019 234/16.11.2019 Nai Abadi 27.07.2019
2 49340/2019 554/16.11.2019 Y.D.
Nagar
16.11.2019
3 49847/2019 564/17.11.2019 Y.D.
Nagar
20.04.2019
4 49856/2019 280/16.11.2019 Afzalpur 30.08.2019
5 49859/2019 563/17.11.2019 Y.D.
Nagar
20.04.2019
6 49861/2019 588/18.11.2019 Y.D.
Nagar
24.08.2019
7 49963/2019 281/16.11.2019 Afzalpur 30.08.2019
8 49972/2019 238/18.11.2019 Nai Abadi 28.08.2019
9 50602/2019 137/17.11.2019 Daloda 25.05.2019
10 50610/2019 136/16.11.2019 Daloda 25.05.2019
11 50614/2019 139/17.11.2019 Daloda 10.06.2019
12 50627/2019 591/18.11.2019 Y.D.
Nagar
13.06.2019
13 50636/2019 551/16.11.2019 Y.D.
Nagar
02.04.2019
14 05648/2019 552/16.11.2019 Y.D.
Nagar
02.04.2019
3.3 That thereafter the private appellants and others
approached the High Court to quash the aforesaid FIRs
5
registered against them for illegal mining/transportation of sand
by submitting the applications under Section 482, Cr.P.C. It was
mainly contended on behalf of the private appellants and other
violators that in view of Bar under Section 22 of the MMDR Act,
the order passed by the learned Magistrate directing to register
the FIRs is unsustainable and deserves to the quashed and set
aside. It was also contended on behalf of the private appellants
and other violators that once there was compounding of offence
in exercise of powers under Rule 53 of the 1996 Rules and the
violators paid the amount determined by permitting them to
compound the offence, thereafter the Magistrate was not justified
in directing to initiate fresh proceedings which would be hit by
the principle of “double jeopardy”. That by the impugned
common judgment and order, the High Court has dismissed all
the aforesaid applications relying upon the decision of this Court
in the case of Sanjay (supra).
4. Feeling aggrieved and dissatisfied with the common
impugned judgment and order passed by the High Court in
refusing to quash the FIRs filed against the private appellants
and other violators, the original petitioners – violators have
preferred the present appeals. Though, before the High Court,
6
the learned Public Prosecutor appearing on behalf of the State of
Madhya Pradesh supported the order passed by the learned
Magistrate directing to register/lodge FIRs, the State has
preferred a separate special leave petition challenging the
impugned judgment and order passed by the High Court
confirming the order passed by the learned Magistrate. It is very
surprising that despite supporting the order passed by the
learned Magistrate before the High Court, the State of Madhya
Pradesh has preferred the special leave petition, which shall be
dealt with hereinbelow.
5. Shri Devadatt Kamat, learned Senior Advocate appearing on
behalf of the private appellants has made following submissions:
i) initiation of criminal proceedings and filing of respective
FIRs against the private appellants which have been filed/lodged
pursuant to the order passed by the learned Magistrate in
exercise of powers under Section 156(3), Cr.P.C. are hit by
Section 22 and 23A of the MMDR Act, as well as, Rule 53 of the
1996 Rules;
ii) on a plain reading of Section 22, cognizance of the offence
can be taken by the Magistrate only if there is a written
complaint in that regard by the Mining Officer/authorised officer.
7
In the present case, admittedly, there is no written complaint
made by the Mining Officer/authorised officer;
iii) MMDR Act does not contemplate the taking of suo motu
cognizance by the Magistrate. The Magistrate does not have
jurisdiction under the MMDR Act to direct the Mining
Officer/police officer incharge to register FIR under the penal
provisions of the MMDR Act. Heavy reliance is placed on the
decision of this Court in the case of Sanjay (Supra), as well as, in
the case of Kanwar Pal Singh v. State of U.P., Criminal Appeal No.
1920 of 2019, decided on December 18, 2019;
iv) Section 23A of the MMDR Act contemplates the
compounding of offence under the MMDR Act. Therefore, the
Rules made under the MMDR Act contain provisions for
compounding of offence. Subsection 2 of Section 23A places a
bar on proceedings or further proceedings, when the offences
have been compounded under subsection (1). Therefore, once
the proceedings have been compounded under the Act or Rules
made thereunder, no further proceedings can lie. In the present
case, the offences under the MMDR Act as against the private
appellants were permitted to be compounded by the competent
authority.
8
5.1 Making the above submissions and relying upon the
aforesaid decisions of this Court, it is prayed to allow the present
appals and quash the criminal proceedings initiated against the
private appellants for the offences under Sections 379 and 414,
IPC and Sections 4/21 of the MMDR Act.
6. Learned counsel appearing on behalf of the State of Madhya
Pradesh has supported the private appellants – violators and has
submitted that the order passed by the learned Magistrate
directing to lodge/register FIRs for the offences under Sections
379 and 414, IPC and Sections 4/21 of the MMDR Act is
unsustainable, though and as observed hereinabove, the learned
Public Prosecutor appearing on behalf of the State of Madhya
Pradesh supported the order passed by the learned Magistrate
before the High Court.
One of the grounds stated in the memo of appeal is that the
order passed by the learned Magistrate, confirmed by the High
Court, impinges/affects the powers of the authorised person to
compound the offence under Rule 18 of the 2006 Rules.
7. Before submissions made on behalf of the respective parties
are considered, the decision of this Court in the case of Sanjay
(supra) dealing with the provisions of the MMDR Act in which this
9
Court considered in detail the policy and object of the MMDR Act
and the Rules made thereunder, is required to be referred to.
7.1 The question which arose for consideration before this
Court was, whether the provisions contained in Sections 21, 22
and other Sections of the MMDR Act operate as bar against
prosecution of a person who has been charged with allegation
which constitutes offences under Sections 379/414 and other
provisions of the Penal Code (IPC). The question which arose
was, whether the provisions of the MMDR Act explicitly or
impliedly exclude the provisions of the Penal Code (IPC) when the
act of an accused is an offence both under the Penal Code and
under the provisions of the MMDR Act. This Court considered in
detail the policy, object and purpose of the MMDR Act in
paragraphs 32 to 39, which read as under:
“32. The policy and object of the 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.
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.
10
33. The mining of aggregates in rivers has led to severe damage to
rivers, 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 Vembanad Lake catchment in India has led to the lowering of
the riverbed by 7 to 15 cm 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. Illegal sand mining also
causes erosion. Damming and mining have reduced sediment
delivery from rivers to many coastal areas, leading to accelerated
beach erosion.
34. The Report also dealt with the astonishing impact of sand
mining on the economy. It states that 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.
35. Sand is often removed from beaches to build hotels, roads and
other tourismrelated 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. 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.
11
36. In M. Palanisamy v. State of T.N(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 Mines 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: (CTC pp. 2425, paras 21 & 2324)
“21. 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 setup 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 fulltime profiteering. Excessive instream sand
and gravel mining from riverbeds and like resources causes the
degradation of rivers. Instream mining lowers the stream
bottom, which leads to bank erosion. Depletion of sand in the
streambed 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 streambeds
and coastal areas is a loss to the system. Excessive instream
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, instream 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
streambed 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 riverbeds may also cause the entire
streambed to degrade to the depth of excavation.
* * *
23. The most important effects of instream sand mining on
aquatic habitats are bed degradation and sedimentation, which
can have substantial negative effects on aquatic life. The stability
12
of sandbed and gravelbed streams depends on a delicate
balance between stream flow, the sediments supplied from the
watershed and the channel form. Mininginduced 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, particle sizes, stream flows, and channel morphology.
24. 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 instream mining lowers the elevation of stream flow and the
floodplain water table, which in turn, can eliminate water tabledependent 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.”
37. In Centre for Public Interest Litigation v. 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: (SCC p. 53,
para 75)
“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.”
38. In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388, this Court
while considering the doctrine of public trust which extends to
natural resources observed as under: (SCC pp. 40708 & 413,
paras 2425 & 34)
“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
13
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 nullius) or by
everyone 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 and need not be repeated in detail here. But two points
should be emphasised. 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:
‘Three types of restrictions on governmental authority are often
thought to be imposed by the public trust: first, the property
14
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.’
* * *
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 seashore, running waters, air, 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.”
39. In Intellectuals Forum v. State of A.P (2006) 3 SCC 549, this
Court while balancing the conservation of natural resources visàvis urban development observed as under: (SCC p. 572, para 67)
“67. The responsibility of the State to protect the environment is
now a wellaccepted 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 case14). 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.”
7.2 This Court further observed in paragraphs 60 & 69 as
under:
“60. 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 48A of
15
the Constitution requires that the State shall endeavour to protect
and improve the environment and safeguard the forests and
wildlife of the country. Similarly, Article 51A enjoins a duty upon
every citizen to protect and improve the natural environment
including forests, lakes, rivers and wildlife, 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, water 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.
69. Considering the principles of interpretation and the wordings
used in Section 22, in our considered opinion, the provision is not
a complete and absolute bar for taking action by the police for
illegal and dishonestly committing theft of minerals including sand
from the riverbed. The Court shall take judicial notice of the fact
that over the years rivers in India have been affected by the
alarming rate of unrestricted sand mining which is damaging the
ecosystem of the rivers and safety of bridges. It also weakens
riverbeds, fish breeding and destroys the natural habitat of many
organisms. If these illegal activities are not stopped by the State
and the police authorities of the State, it will cause serious
repercussions as mentioned hereinabove. It will not only change
the river hydrology but also will deplete the groundwater levels.”
7.3 That thereafter, after considering the relevant provisions of
the MMDR Act, this Court opined that there is no complete and
absolute bar in prosecuting persons under the Penal Code where
the offences committed by persons are penal and cognizable
offence. Ultimately, this Court concluded in paragraphs 72 and
73 as under:
“72. From a close reading of the provisions of the MMDR Act and
the offence defined under Section 378 IPC, it is manifest that the
ingredients constituting the offence are different. The contravention
of terms and conditions of mining lease or doing mining activity in
violation of Section 4 of the Act is an offence punishable under
Section 21 of the MMDR Act, whereas dishonestly removing sand,
16
gravel and other minerals from the river, which is the property of
the State, out of the State’s possession without the consent,
constitute an offence of theft. Hence, merely because initiation of
proceeding for commission of an offence under the MMDR Act on
the basis of complaint cannot and shall not debar the police from
taking action against persons for committing theft of sand and
minerals in the manner mentioned above by exercising power
under the Code of Criminal Procedure and submit a report before
the Magistrate for taking cognizance against such persons. In other
words, in a case where there is a theft of sand and gravel from the
government land, the police can register a case, investigate the
same and submit a final report under Section 173 CrPC before a
Magistrate having jurisdiction for the purpose of taking cognizance
as provided in Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the
light of the relevant provisions of the Act visàvis the Code of
Criminal Procedure and the 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 riverbeds without consent, which is the property of
the State, is a distinct offence under IPC. Hence, for the
commission of offence under Section 378 IPC, 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 authorised officer for taking
cognizance in respect of violation of various provisions of the
MMDR 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 Magistrates concerned to proceed accordingly.”
7.4 Thus, as held by this Court, the prohibition contained in
Section 22 of the MMDR Act against prosecution of a person
except on a written complaint made by the authorised officer in
this behalf would be attracted only when such person is sought
to be prosecuted for contraventions of Section 4 of the MMDR Act
17
and not for any act or omission which constitutes an offence
under the Penal Code.
8. However, it is required to be noted that in the case of
Sanjay (supra), this Court had no occasion and/or had not
considered when and at what stage the bar under Section 22 of
the MMDR Act would be attracted. The further question which is
required to be considered is, when and at what stage the
Magistrate can be said to have taken cognizance attracting the
bar under Section 22 of the MMDR Act?
8.1 While considering the aforesaid issue, Section 22 of the
MMDR Act is required to be referred to, which is as under:
“22. Cognizance of offences.—No court shall take cognizance of
any offence punishable under this Act or any Rules made
thereunder except upon complaint in writing made by a person
authorised in this behalf by the Central Government or the State
Government.”
Reading the aforesaid provision would show that cognizance
of any offence punishable under the MMDR Act or the Rules
made thereunder shall be taken only upon a written complaint
made by a person authorised in this behalf by the Central
Government or the State Government. Therefore, on a fair
18
reading of Section 22 of the MMDR Act, the bar would be
attracted when the Magistrate takes cognizance.
9. Let us now consider the question in the light of judicial
pronouncements on the point.
9.1. In the case of Krishna Pillai v. T.A. Rajendran, 1990 (Supp)
SCC 121, after considering a five Judge Bench judgment of this
Court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak,
(1984) 2 SCC 500, it is observed in paragraph 4 as under:
“4. Taking cognizance has assumed a special meaning in our
criminal jurisprudence. We may refer to the view taken by a five
Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas
Nayak (supra) at p. 530 (para 31) of the reports this Court
indicated:
“When a private complaint is filed, the court has to examine the
complainant on oath save in the cases set out in the proviso to
Section 200 CrPC After examining the complainant on oath and
examining the witnesses present, if any, meaning thereby that
the witnesses not present need not be examined, it would be
open to the court to judicially determine whether a case is made
out for issuing process. When it is said that court issued
process, it means the court has taken cognizance of the offence
and has decided to initiate the proceedings and a visible
manifestation of taking cognizance process is issued which
means that the accused is called upon to appear before the
court.”
The extract from the Constitution Bench judgment clearly indicates
that filing of a complaint in court is not taking cognizance and
what exactly constitutes taking cognizance is different from filing of
a complaint…..”
9.2 In the case of Manohar M. Galani v. Ashok N. Advani (1999)
8 SCC 737, when the bar under Section 195 Cr. P.C. was pressed
19
into service and the High Court quashed the complaint and
enquiry on the basis of the FIR registered by the complainant,
while setting aside the order passed by the High Court, this
Court accepted the submission on behalf of the State that the bar
under Section 195 Cr.P.C. can be gone into at the stage when the
court takes cognizance of the offence and investigation on the
basis of the information received could not have been quashed
and an investigating agency cannot be throttled at this stage from
proceeding with the investigation particularly when the charges
are serious and grave.
9.3 In the case of S.K. Sinha, Chief Enforcement Officer v.
Videocon International Limited, (2008) 2 SCC 492, in paragraphs
19 to 34, it is observed and held as under:
“19. The expression “cognizance” has not been defined in the
Code. But the word (cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law. It merely means
“become aware of” and when used with reference to a court or a
Judge, it connotes “to take notice of judicially”. It indicates the
point when a court or a Magistrate takes judicial notice of an
offence with a view to initiating proceedings in respect of such
offence said to have been committed by someone.
20. “Taking cognizance” does not involve any formal action of
any kind. It occurs as soon as a Magistrate applies his mind to
the suspected commission of an offence. Cognizance is taken
prior to commencement of criminal proceedings. Taking of
cognizance is thus a sine qua non or condition precedent for
holding a valid trial. Cognizance is taken of an offence and not of
an offender. Whether or not a Magistrate has taken cognizance of
an offence depends on the facts and circumstances of each case
20
and no rule of universal application can be laid down as to when
a Magistrate can be said to have taken cognizance.
21. Chapter XIV (Sections 190-199) of the Code deals with
“Conditions requisite for initiation of proceedings”. Section 190
empowers a Magistrate to take cognizance of an offence in
certain circumstances. Sub-section (1) thereof is material and
may be quoted in extenso:
“190. Cognizance of offences by Magistrates —(1) Subject to
the provisions of this Chapter, any Magistrate of the First Class,
and any Magistrate of the Second Class specially empowered
in this behalf under sub-section (2), may take cognizance of
any offence—
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.”
22. Chapter XV (Sections 200-203) relates to “Complaints to
Magistrates” and covers cases before actual commencement of
proceedings in a court or before a Magistrate. Section 200 of the
Code requires a Magistrate taking cognizance of an offence to
examine the complainant and his witnesses on oath. Section 202,
however, enacts that a Magistrate is not bound to issue process
against the accused as a matter of course. It enables him before
the issue of process either to inquire into the case himself or
direct an investigation to be made by a police officer or by such
other person as he thinks fit for the purpose of deciding whether
there is sufficient ground for proceeding further. The underlying
object of the inquiry under Section 202 is to ascertain whether
there is prima facie case against the accused. It thus allows a
Magistrate to form an opinion whether the process should or
should not be issued. The scope of inquiry under Section 202 is,
no doubt, extremely limited. At that stage, what a Magistrate is
called upon to see is whether there is sufficient ground for
proceeding with the matter and not whether there is sufficient
ground for conviction of the accused.
23. Then comes Chapter XVI (Commencement of proceedings
before Magistrates). This Chapter will apply only after cognizance
of an offence has been taken by a Magistrate under Chapter XIV.
Section 204, whereunder process can be issued, is another
material provision which reads as under:
“204. Issue of process.—(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the
attendance of the accused, or
21
(b) a warrant case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until
the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.”
24. From the above scheme of the Code, in our judgment, it is
clear that “Initiation of proceedings”, dealt with in Chapter XIV, is
different from “Commencement of proceedings” covered by
Chapter XVI. For commencement of proceedings, there must be
initiation of proceedings. In other words, initiation of proceedings
must precede commencement of proceedings. Without initiation
of proceedings under Chapter XIV, there cannot be
commencement of proceedings before a Magistrate under
Chapter XVI. The High Court, in our considered view, was not
right in equating initiation of proceedings under Chapter XIV with
commencement of proceedings under Chapter XVI.
25. Let us now consider the question in the light of judicial
pronouncements on the point.
26. In Supdt. & Remembrancer of Legal Affairs v. Abani Kumar
Banerjee, AIR 1950 Cal. 437, the High Court of Calcutta had an
occasion to consider the ambit and scope of the phrase “taking
cognizance” under Section 190 of the Code of Criminal
Procedure, 1898 which was in pari materia with Section 190 of
the present Code of 1973. Referring to various decisions, Das
Gupta, J. (as His Lordship then was) stated: (AIR p. 438, para 7)
“7. … What is ‘taking cognizance’ has not been defined in the
Criminal Procedure Code, and I have no desire now to attempt
to define it. It seems to me clear, however, that before it can
be said that any Magistrate has taken cognizance of any
offence under Section 190(1)(a) CrPC, he must not only have
applied his mind to the contents of the petition, but he must
have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter,
proceeding under Section 200, and thereafter sending it for
enquiry and report under Section 202. When the Magistrate
applies his mind not for the purpose of proceeding under the
22
subsequent sections of this Chapter, but for taking action of
some other kind, e.g., ordering investigation under Section
156(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of
the offence.”
27. R.R. Chari v. State of U.P. AIR 1951 SC 207 was probably the
first leading decision of this Court on the point. There, the police,
having suspected the appellant-accused to be guilty of offences
punishable under Sections 161 and 165 of the Penal Code (IPC)
as also under the Prevention of Corruption Act, 1947, applied to
the District Magistrate, Kanpur to issue warrant of arrest on 22-
10-1947. Warrant was issued on the next day and the accused
was arrested on 27-10-1947.
28. On 25-3-1949, the accused was produced before the
Magistrate to answer the charge-sheet submitted by the
prosecution. According to the accused, on 22-10-1947, when
warrant for his arrest was issued by the Magistrate, the
Magistrate was said to have taken cognizance of offence and
since no sanction of the Government had been obtained before
that date, initiation of proceedings against him was unlawful. The
question before the Court was as to when cognizance of the
offence could be said to have been taken by the Magistrate
under Section 190 of the Code. Considering the circumstances
under which “cognizance of offence” under sub-section (1) of
Section 190 of the Code can be taken by a Magistrate and
referring to Abani Kumar Banerjee (supra), the Court, speaking
through Kania, C.J. stated: (Chari case (supra), AIR p. 208, para 3)
“3. It is clear from the wording of the section that the initiation
of the proceedings against a person commences on the
cognizance of the offence by the Magistrate under one of the
three contingencies mentioned in the section. The first
contingency evidently is in respect of non-cognizable offences
as defined in CrPC on the complaint of an aggrieved person.
The second is on a police report, which evidently is the case of
a cognizable offence when the police have completed their
investigation and come to the Magistrate for the issue of a
process. The third is when the Magistrate himself takes notice
of an offence and issues the process. It is important to
remember that in respect of any cognizable offence, the police,
at the initial stage when they are investigating the matter, can
arrest a person without obtaining an order from the Magistrate.
Under Section 167(b) CrPC the police have of course to put up
the person so arrested before a Magistrate within 24 hours and
obtain an order of remand to police custody for the purpose of
further investigation, if they so desire. But they have the
power to arrest a person for the purpose of investigation
without approaching the Magistrate first. Therefore, in cases of
cognizable offence before proceedings are initiated and while
the matter is under investigation by the police the suspected
23
person is liable to be arrested by the police without an order
by the Magistrate.”
29. Approving the observations of Das Gupta, J. in Abani Kumar
Banerjee(supra), this Court held that it was on 25-3-1949 when
the Magistrate issued a notice under Section 190 of the Code
against the accused that he took “cognizance” of the offence.
Since before that day, sanction had been granted by the
Government, the proceedings could not be said to have been
initiated without authority of law.
30. Again in Narayandas Bhagwandas Madhavdas v. State of
W.B.AIR 1959 SC 1118, this Court observed that when
cognizance is taken of an offence depends upon the facts and
circumstances of each case and it is impossible to attempt to
define what is meant by taking cognizance. Issuance of a search
warrant for the purpose of an investigation or a warrant of arrest
of the accused cannot by itself be regarded as an act of taking
cognizance of an offence. It is only when a Magistrate applies his
mind for proceeding under Section 200 and subsequent sections
of Chapter XV or under Section 204 of Chapter XVI of the Code
that it can be positively stated that he had applied his mind and
thereby had taken cognizance of an offence (see also Ajit Kumar
Palit v. State of W.B. AIR 1963 SC 765 and Hareram Satpathy v.
Tikaram Agarwala, (1978) 4 SCC 58).
31. In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986,
referring to earlier judgments, this Court said: (AIR p. 989, para
7)
“7. … We cannot read the provisions of Section 190 to mean
that once a complaint is filed, a Magistrate is bound to take
cognizance if the facts stated in the complaint disclose the
commission of any offence. We are unable to construe the
word ‘may’ in Section 190 to mean ‘must’. The reason is
obvious. A complaint disclosing cognizable offences may well
justify a Magistrate in sending the complaint, under Section
156(3) to the police for investigation. There is no reason why
the time of the Magistrate should be wasted when primarily
the duty to investigate in cases involving cognizable offences
is with the police. On the other hand, there may be occasions
when the Magistrate may exercise his discretion and take
cognizance of a cognizable offence. If he does so then he
would have to proceed in the manner provided by Chapter XVI
of the Code.”
32. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753,
the Court stated that it is well settled that before a Magistrate
can be said to have taken cognizance of an offence under Section
190(1)(a) of the Code, he must have not only applied his mind to
the contents of the complaint presented before him, but must
have done so for the purpose of proceeding under Section 200
and the provisions following that section. Where, however, he
24
applies his mind only for ordering an investigation under Section
156(3) or issues a warrant for arrest of the accused, he cannot be
said to have taken cognizance of the offence.
33. In Darshan Singh Ram Kishan v. State of Maharashtra (1971)
2 SCC 654, speaking for the Court, Shelat, J. stated that under
Section 190 of the Code, a Magistrate may take cognizance of an
offence either (a) upon receiving a complaint, or (b) upon a
police report, or (c) upon information received from a person
other than a police officer or even upon his own information or
suspicion that such an offence has been committed. As has often
been said, taking cognizance does not involve any formal action
or indeed action of any kind. It occurs as soon as a Magistrate
applies his mind to the suspected commission of an offence.
Cognizance, thus, takes place at a point when a Magistrate first
takes judicial notice of an offence.
34. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy
(1976) 3 SCC 252, this Court said: (SCC p. 257, paras 13-14)
“13. It is well settled that when a Magistrate receives a
complaint, he is not bound to take cognizance if the facts
alleged in the complaint, disclose the commission of an
offence. This is clear from the use of the words ‘may take
cognizance’ which in the context in which they occur cannot be
equated with ‘must take cognizance’. The word ‘may’ gives a
discretion to the Magistrate in the matter. If on a reading of the
complaint he finds that the allegations therein disclose a
cognizable offence and the forwarding of the complaint to the
police for investigation under Section 156(3) will be conducive
to justice and save the valuable time of the Magistrate from
being wasted in enquiring into a matter which was primarily
the duty of the police to investigate, he will be justified in
adopting that course as an alternative to taking cognizance of
the offence, himself.
14. This raises the incidental question: What is meant by
‘taking cognizance of an offence’ by a Magistrate within the
contemplation of Section 190? This expression has not been
defined in the Code. But from the scheme of the Code, the
content and marginal heading of Section 190 and the caption
of Chapter XIV under which Sections 190 to 199 occur, it is
clear that a case can be said to be instituted in a court only
when the court takes cognizance of the offence alleged
therein. The ways in which such cognizance can be taken are
set out in Clauses (a), (b) and (c) of Section 190(1). Whether
the Magistrate has or has not taken cognizance of the offence
will depend on the circumstances of the particular case
including the mode in which the case is sought to be instituted,
and the nature of the preliminary action, if any, taken by the
Magistrate. Broadly speaking, when on receiving a complaint,
the Magistrate applies his mind for the purposes of proceeding
under Section 200 and the succeeding sections in Chapter XV
25
of the Code of 1973, he is said to have taken cognizance of the
offence within the meaning of Section 190(1)(a). If, instead of
proceeding under Chapter XV, he has, in the judicial exercise
of his discretion, taken action of some other kind, such as
issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under Section 156(3), he
cannot be said to have taken cognizance of any offence.”
(see also M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528).
9.4 In the case of Fakhruddin Ahmad v. State of Uttaranchal,
(2008) 17 SCC 157, in paragraphs 9 to 17, it is observed and held
as under:
“9. Before examining the rival contentions, we may briefly refer to
some of the relevant provisions in the Code. Chapter XIV of the
Code, containing Sections 190 to 199 deals with the statutory
conditions requisite for initiation of criminal proceedings and as to
the powers of cognizance of a Magistrate. Subsection (1) of Section
190 of the Code empowers a Magistrate to take cognizance of an
offence in the manner laid therein. It provides that a Magistrate
may take cognizance of an offence either (a) upon receiving a
complaint of facts which constitute such offence; or (b) upon a
police report of such facts; or (c) upon information received from
any person other than a police officer, or upon his own knowledge
that such offence has been committed.
10. Chapter XV containing Sections 200 to 203 deals with
“Complaints to Magistrates” and lays down the procedure which is
required to be followed by the Magistrate taking cognizance of an
offence on complaint. Similarly, Chapter XVI deals with
“Commencement of Proceedings before Magistrates”. Since
admittedly, in the present case, the Magistrate has taken
cognizance of the complaint in terms of Section 190 of the Code,
we shall confine our discussion only to the said provision. We may,
however, note that on receipt of a complaint, the Magistrate has
more than one course open to him to determine the procedure and
the manner to be adopted for taking cognizance of the offence.
11. One of the courses open to the Magistrate is that instead of
exercising his discretion and taking cognizance of a cognizable
offence and following the procedure laid down under Section 200
or Section 202 of the Code, he may order an investigation to be
made by the police under Section 156(3) of the Code, which the
learned Magistrate did in the instant case. When such an order is
26
made, the police is obliged to investigate the case and submit a
report under Section 173(2) of the Code. On receiving the police
report, if the Magistrate is satisfied that on the facts discovered or
unearthed by the police there is sufficient material for him to take
cognizance of the offence, he may take cognizance of the offence
under Section 190(1)(b) of the Code and issue process straightaway
to the accused. However, Section 190(1)(b) of the Code does not lay
down that a Magistrate can take cognizance of an offence only if
the investigating officer gives an opinion that the investigation
makes out a case against the accused. Undoubtedly, the
Magistrate can ignore the conclusion(s) arrived at by the
investigating officer.
12. Thus, it is trite that the Magistrate is not bound by the opinion
of the investigating officer and he is competent to exercise his
discretion in this behalf, irrespective of the view expressed by the
police in their report and decide whether an offence has been made
out or not. This is because the purpose of the police report under
Section 173(2) of the Code, which will contain the facts discovered
or unearthed by the police as well as the conclusion drawn by the
police therefrom is primarily to enable the Magistrate to satisfy
himself whether on the basis of the report and the material referred
therein, a case for cognizance is made out or not.
13. The next incidental question is as to what is meant by the
expression “taking cognizance of an offence” by a Magistrate within
the contemplation of Section 190 of the Code?
14. The expression “cognizance” is not defined in the Code but is a
word of indefinite import. As observed by this Court in Ajit Kumar
Palit v. State of W.B., AIR 1963 SC 765 (AIR p. 770, para 19)
“19. … The word ‘cognizance’ has no esoteric or mystic
significance in criminal law or procedure. It merely means—
become aware of and when used with reference to a court or
Judge, to take notice of judicially.”
Approving the observations of the Calcutta High Court in Emperor
v. Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal. 412 (at ILR p.
416), the Court said that
“taking cognizance does not involve any formal action, or indeed
action of any kind, but occurs as soon as a Magistrate, as such,
applies his mind to the suspected commission of an offence.”
(emphasis supplied)
15. Recently, this Court in Chief Enforcement Officer v. Videocon
International Ltd.4 speaking through C.K. Thakker, J., while
considering the ambit and scope of the phrase “taking cognizance”
under Section 190 of the Code, has highlighted some of the
observations of the Calcutta High Court in Supdt. & Remembrancer
of Legal Affairs v. Abani Kumar Banerjee, AIR 1950 Cal. 437 which
27
were approved by this Court in R.R. Chari v. State of U.P., AIR 1951
SC 207. The observations are: (Abani Kumar Banerjee case(supra),
AIR p. 438, para 7)
“7. … What is ‘taking cognizance’ has not been defined in the
Criminal Procedure Code, and I have no desire now to attempt to
define it. It seems to me clear, however, that before it can be said
that any Magistrate has taken cognizance of any offence under
Section 190(1)(a) CrPC, he must not only have applied his mind
to the contents of the petition, but he must have done so for the
purpose of proceeding in a particular way as indicated in the
subsequent provisions of this Chapter, proceeding under Section
200, and thereafter sending it for enquiry and report under
Section 202. When the Magistrate applies his mind not for the
purpose of proceeding under the subsequent sections of this
Chapter, but for taking action of some other kind e.g. ordering
investigation under Section 156(3), or issuing a search warrant
for the purpose of the investigation, he cannot be said to have
taken cognizance of the offence.”
16. From the aforenoted judicial pronouncements, it is clear that
being an expression of indefinite import, it is neither practicable
nor desirable to precisely define as to what is meant by “taking
cognizance”. Whether the Magistrate has or has not taken
cognizance of the offence will depend upon the circumstances of
the particular case, including the mode in which the case is sought
to be instituted and the nature of the preliminary action.
17. Nevertheless, it is well settled that before a Magistrate can be
said to have taken cognizance of an offence, it is imperative that he
must have taken notice of the accusations and applied his mind to
the allegations made in the complaint or in the police report or the
information received from a source other than a police report, as
the case may be, and the material filed therewith. It needs little
emphasis that it is only when the Magistrate applies his mind and
is satisfied that the allegations, if proved, would constitute an
offence and decides to initiate proceedings against the alleged
offender, that it can be positively stated that he has taken
cognizance of the offence. Cognizance is in regard to the offence
and not the offender.”
9.5 In the case of Subramanian Swamy v. Manmohan Singh,
(2012) 3 SCC 64, it is observed in paragraphs 34 to 37 as under:
“34. The argument of the learned Attorney General that the
question of granting sanction for prosecution of a public servant
charged with an offence under the 1988 Act arises only at the stage
28
of taking cognizance and not before that is neither supported by
the plain language of the section nor the judicial precedents relied
upon by him. Though, the term “cognizance” has not been defined
either in the 1988 Act or CrPC, the same has acquired a definite
meaning and connotation from various judicial precedents. In legal
parlance cognizance is “taking judicial notice by the court of law,
possessing jurisdiction, on a cause or matter presented before it so
as to decide whether there is any basis for initiating proceedings
and determination of the cause or matter judicially”.
35. In R.R. Chari v. State of U.P AIR 1951 SC 207, the threeJudge
Bench approved the following observations made by the Calcutta
High Court in Supt. and Remembrancer of Legal Affairs v. Abani
Kumar Banerjee AIR 1950 Cal. 437,: (AIR p. 438, para 7)
“7. … What is ‘taking cognizance’ has not been defined in the
Criminal Procedure Code, and I have no desire now to attempt to
define it. It seems to me clear, however, that before it can be said
that any Magistrate has taken cognizance of any offence under
Section 190(1)(a), Criminal Procedure Code, he must not only have
applied his mind to the contents of the petition, but he must have
done so for the purpose of proceeding in a particular way as
indicated in the subsequent provisions of this Chapter,—
proceeding under Section 200, and thereafter sending it for inquiry
and report under Section 202. When the Magistrate applies his
mind not for the purpose of proceeding under the subsequent
sections of this Chapter, but for taking action of some other kind
e.g. ordering investigation under Section 156(3), or issuing a
search warrant for the purpose of the investigation, he cannot be
said to have taken cognizance of the offence.”
36. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, the Court
referred to Section 190 CrPC and observed: (SCC p. 696, para 43)
“43. … In its broad and literal sense, it means taking notice of
an offence. This would include the intention of initiating judicial
proceedings against the offender in respect of that offence or taking
steps to see whether there is any basis for initiating judicial
proceedings or for other purposes. The word ‘cognizance’ indicates
the point when a Magistrate or a Judge first takes judicial notice of
an offence. It is entirely a different thing from initiation of
proceedings; rather it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge. Cognizance is taken of
cases and not of persons.”
37. In State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728, this
Court referred to the provisions of Chapter XIV and Sections 190
and 196(1A) CrPC and observed: (SCC p. 732, para 8)
“8. … There is no bar against registration of a criminal case or
investigation by the police agency or submission of a report by the
29
police on completion of investigation, as contemplated by Section
173 CrPC. If a criminal case is registered, investigation of the
offence is done and the police submits a report as a result of such
investigation before a Magistrate without the previous sanction of
the Central Government or of the State Government or of the
District Magistrate, there will be no violation of Section 196(1A)
CrPC and no illegality of any kind would be committed.”
9.6 In the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC
705, it is observed and held in paragraphs 12 to 15 as under:
“12. We will now examine whether the order directing
investigation under Section 156(3) CrPC would amount to
taking cognizance of the offence, since a contention was
raised that the expression “cognizance” appearing in
Section 19(1) of the PC Act will have to be construed as
postcognizance stage, not precognizance stage and,
therefore, the requirement of sanction does not arise
prior to taking cognizance of the offences punishable
under the provisions of the PC Act.
13. The expression “cognizance” which appears in
Section 197 CrPC came up for consideration before a
threeJudge Bench of this Court in State of U.P. v. Paras
Nath Singh (2009) 6 SCC 372, and this Court expressed
the following view: (SCC pp. 375, para 6)
“6. … ‘10. … And the jurisdiction of a Magistrate to
take cognizance of any offence is provided by Section
190 of the Code, either on receipt of a complaint, or
upon a police report or upon information received from
any person other than a police officer, or upon his
knowledge that such offence has been committed. So
far as public servants are concerned, the cognizance of
any offence, by any court, is barred by Section 197 of
the Code unless sanction is obtained from the
appropriate authority, if the offence, alleged to have
been committed, was in discharge of the official duty.
The section not only specifies the persons to whom the
protection is afforded but it also specifies the
30
conditions and circumstances in which it shall be
available and the effect in law if the conditions are
satisfied. The mandatory character of the protection
afforded to a public servant is brought out by the
expression, ‘no court shall take cognizance of such
offence except with the previous sanction’. Use of the
words ‘no’ and ‘shall’ makes it abundantly clear that
the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The
very cognizance is barred. That is, the complaint
cannot be taken notice of. According to Black’s Law
Dictionary the word ‘cognizance’ means ‘jurisdiction’ or
‘the exercise of jurisdiction’ or ‘power to try and
determine causes’. In common parlance, it means
taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or
exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have
been committed during discharge of his official duty.”
14. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684,
this Court has observed as follows:
“13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to
the facts mentioned in a complaint or to a police report
or upon information received from any other person
that an offence has been committed. The issuance of
process is at a subsequent stage when after
considering the material placed before it the court
decides to proceed against the offenders against whom
a prima facie case is made out.
The meaning of the said expression was also considered
by this Court in Subramanian Swamy case (2012) 3 SCC
64.
15. The judgments referred to hereinabove clearly
indicate that the word “cognizance” has a wider
connotation and is not merely confined to the stage of
taking cognizance of the offence. When a Special Judge
refers a complaint for investigation under Section 156(3)
31
CrPC, obviously, he has not taken cognizance of the
offence and, therefore, it is a precognizance stage and
cannot be equated with postcognizance stage. When a
Special Judge takes cognizance of the offence on a
complaint presented under Section 200 CrPC and the
next step to be taken is to follow up under Section 202
CrPC. Consequently, a Special Judge referring the case
for investigation under Section 156(3) is at precognizance stage.”
10. Having heard learned counsel for the parties and having
perused the relevant provisions of the law as also the judicial
pronouncements, we are of the view that the High Court has not
committed any error in not quashing the order passed by the
learned Magistrate and not quashing the criminal proceedings for
the offences under Sections 379 and 414. It is required to be
noted that the learned Magistrate in exercise of the suo motu
powers conferred under Section 156(3), Cr.P.C. directed the
concerned Incharge/SHO of the police station to lodge/register
the crime case/FIR and directed initiation of investigation and
directed the concerned Incharge/SHO of the police station to
submit a report after due investigation.
Applying the law laid down by this Court in the cases
referred to hereinabove, it cannot be said that at this stage the
learned Magistrate had taken any cognizance of the alleged
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offences attracting bar under Section 22 of the MMDR Act. On
considering the relevant provisions of the MMDR Act and the
Rules made thereunder, it cannot be said that there is a bar
against registration of a criminal case or investigation by the
police agency or submission of a report by the police on
completion of investigation, as contemplated by Section 173,
Cr.P.C.
10.1 At this stage, it is required to be noted that as per Section
21 of the MMDR Act, the offences under the MMDR Act are
cognizable. 10.2 As specifically observed by this Court in the
case of Anil Kumar (supra), ‘when a Special Judge refers a
complaint for investigation under Section 156(3) Cr.P.C.,
obviously, he has not taken cognizance of the offence and,
therefore, it is a precognizance stage and cannot be equated with
postcognizance stage’.
10.3 Even as observed by this Court in the case of R.R. Chari
(supra), even the order passed by the Magistrate ordering
investigation under Section 156(3), or issuing a search warrant
for the purpose of the investigation, he cannot be said to have
taken cognizance of the offence. As observed by the Constitution
33
Bench of this Court in the case of A.R. Antulay(supra), filing of a
complaint in court is not taking cognizance and what exactly
constitutes taking cognizance is different from filing of a
complaint. Therefore, when an order is passed by the Magistrate
for investigation to be made by the police under Section 156(3) of
the Code, which the learned Magistrate did in the instant case,
when such an order is made the police is obliged to investigate
the case and submit a report under Section 173(2) of the Code.
That thereafter the investigating officer is required to send report
to the authorised officer and thereafter as envisaged under
Section 22 of the MMDR Act the authorised officer as mentioned
in Section 22 of the MMDR Act may file the complaint before the
learned Magistrate along with the report submitted by the
investigating officer and at that stage the question with respect to
taking cognizance by the learned Magistrate would arise.
11. Now so far as the submission on behalf of the private
appellantsviolators that in view of the fact that violators were
permitted to compound the violation in exercise of powers under
Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the
violators accepted the decision and deposited the amount of
34
penalty determined by the appropriate authority for
compounding the offences/violations, there cannot be any
further criminal proceedings for the offences under Sections 379
and 414 IPC and Sections 4/21 of the MMDR Act and the
reliance placed on Section 23A of the MMDR Act is concerned, it
is true that in the present case the appropriate authority
determined the penalty under Rule 53 of the 1996 Rules/Rule 18
of the 2006 Rules, which the private appellantsviolators paid
and therefore the bar contained in subsection 2 of Section 23A
of the MMDR Act will be attracted. Section 23A as it stands
today has been brought on the Statute in the year 1972 on the
recommendations of the Mineral Advisory Board which provides
that any offence punishable under the MMDR Act or any rule
made thereunder may, either before or after the institution of the
prosecution, be compounded by the person authorised under
section 22 to make a complaint to the court with respect to that
offence, on payment to that person, for credit to the Government,
of such sum as that person may specify. Subsection 2 of
Section 23A further provides that where an offence is
compounded under subsection (1), no proceeding or further
proceeding, as the case may be, shall be taken against the
35
offender in respect of the offence so compounded, and the
offender, if in custody, shall be released forthwith. Thus, the bar
under subsection 2 of Section 23A shall be applicable with
respect to offences under the MMDR Act or any rule made
thereunder. However, the bar contained in subsection 2 of
Section 23A shall not be applicable for the offences under the
IPC, such as, Section 379 and 414 IPC. In the present case, as
observed and held hereinabove, the offences under the MMDR
Act or any rule made thereunder and the offences under the IPC
are different and distinct offences. Therefore, as in the present
case, the mining inspectors prepared the cases under Rule 53 of
the 1996 Rules and submitted them before the mining officers
with the proposals of compounding the same for the amount
calculated according to the concerned rules and the Collector
approved the said proposal and thereafter the private appellantsviolators accepted the decision and deposited the amount of
penalty determined by the Collector for compounding the cases in
view of subsection 2 of Section 23A of the MMDR Act and the
1996 rules and even the 2006 rules are framed in exercise of the
powers under Section 15 of the MMDR Act, criminal
complaints/proceedings for the offences under Sections 4/21 of
36
the MMDR Act are not permissible and are not required to be
proceeded further in view of the bar contained in subsection 2 of
Section 23A of the MMDR Act. At the same time, as observed
hereinabove, the criminal complaints/proceedings for the
offences under the IPC – Sections 379/414 IPC which are held to
be distinct and different can be proceeded further, subject to the
observations made hereinabove.
However, our above conclusions are considering the
provisions of Section 23A of the MMDR Act, as it stands today. It
might be true that by permitting the violators to compound the
offences under the MMDR Act or the rules made thereunder, the
State may get the revenue and the same shall be on the principle
of person who causes the damage shall have to compensate the
damage and shall have to pay the penalty like the principle of
polluters to pay in case of damage to the environment. However,
in view of the large scale damages being caused to the nature and
as observed and held by this Court in the case of Sanjay (supra),
the policy and object of MMDR Act and Rules are the result of an
increasing awareness of the compelling need to restore the
serious ecological imbalance and to stop the damages being
37
caused to the nature and considering the observations made by
this Court in the aforesaid decision, reproduced hereinabove, and
when the violations like this are increasing and the serious
damage is caused to the nature and the earth and it also affects
the ground water levels etc. and it causes severe damage as
observed by this Court in the case of Sanjay (supra), reproduced
hereinabove, we are of the opinion that the violators cannot be
permitted to go scot free on payment of penalty only. There must
be some stringent provisions which may have deterrent effect so
that the violators may think twice before committing such
offences and before causing damage to the earth and the nature.
It is the duty cast upon the State to restore the ecological
imbalance and to stop damages being caused to the nature. As
observed by this Court in the case of Sanjay (supra), excessive instream sandandgravel mining from river beds and like resources
causes the degradation of rivers. It is further observed that 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. Even otherwise, sand/mines is a public property and
38
the State is the custodian of the said public property and
therefore the State should be more sensitive to protect the
environment and ecological balance and to protect the public
property the State should always be in favour of taking very stern
action against the violators who are creating serious ecological
imbalance and causing damages to the nature in any form. As
the provisions of Section 23A are not under challenge and Section
23A of the MMDR Act so long as it stands, we leave the matter
there and leave it to the wisdom of the legislatures and the
concerned States.
12. Now so far as the appeal preferred by the State on the
premise that the order passed by the learned Magistrate,
confirmed by the High Court, affects the powers of the authorised
person to compound the offence, in exercise of powers under Rule
53 of the 1996 Rules and Rule 18 of the 2006 Rules is concerned,
the same is absolutely misconceived. By the order passed by the
learned Magistrate, confirmed by the High Court, by no stretch of
imagination, it can be said that directing to file the first
information report/crime case for the offences under the IPC and
even for the offences under the MMDR Act and the rules made
39
thereunder, it affects any of the powers of the authorised person
to compound the offence. In fact, in view of the decision of this
Court in the case of Sanjay (supra), in which this Court has
specifically observed and held that so far as the offence under the
IPC is concerned, there shall not be any bar under Section 22 of
the MMDR Act and when before the High Court the State
supported the order passed by the learned Magistrate and rightly
so and when the impugned judgment and order passed by the
High Court is in favour of the State, as such, the State ought not
to have filed the special leave petition/appeal.
13. After giving our thoughtful consideration in the matter, in
the light of the relevant provisions of the MMDR Act and the
Rules made thereunder visàvis the Code of Criminal Procedure
and the Penal Code, and the law laid down by this Court in the
cases referred to hereinabove and for the reasons stated
hereinabove, our conclusions are as under:
i) that the learned Magistrate can in exercise of powers under
Section 156(3) of the Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR
even for the offences under the MMDR Act and the Rules made
40
thereunder and at this stage the bar under Section 22 of the
MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be
attracted only when the learned Magistrate takes cognizance of
the offences under the MMDR Act and Rules made thereunder
and orders issuance of process/summons for the offences under
the MMDR Act and Rules made thereunder;
iii) for commission of the offence under the IPC, 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 authorised officer for taking
cognizance in respect of violation of various provisions of the
MMDR Act and Rules made thereunder; and
iv) that in respect of violation of various provisions of the
MMDR Act and the Rules made thereunder, when a Magistrate
passes an order under Section 156(3) of the Code and directs the
concerned Incharge/SHO of the police station to register/lodge
the crime case/FIR in respect of the violation of various
provisions of the Act and Rules made thereunder and thereafter
after investigation the concerned Incharge of the police
station/investigating officer submits a report, the same can be
41
sent to the concerned Magistrate as well as to the concerned
authorised officer as mentioned in Section 22 of the MMDR Act
and thereafter the concerned authorised officer may file the
complaint before the learned Magistrate along with the report
submitted by the concerned investigating officer and thereafter it
will be open for the learned Magistrate to take cognizance after
following due procedure, issue process/summons in respect of
the violations of the various provisions of the MMDR Act and
Rules made thereunder and at that stage it can be said that
cognizance has been taken by the learned Magistrate.
v) in a case where the violator is permitted to compound the
offences on payment of penalty as per subsection1 of Section
23A, considering subsection 2 of Section 23A of the MMDR Act,
there shall not be any proceedings or further proceedings against
the offender in respect of the offences punishable under the
MMDR Act or any rule made thereunder so compounded.
However, the bar under subsection 2 of Section 23A shall not
affect any proceedings for the offences under the IPC, such as,
Sections 379 and 414 IPC and the same shall be proceeded with
further.
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14. In view of the above and for the reasons stated above, the
appeals filed by the violators/private appellants are partly
allowed, to the extent quashing the proceedings for the offences
under the MMDR Act – Sections 4/21 of the MMDR Act only. The
appeal preferred by the State of Madhya Pradesh stands
dismissed.
…………………………………..J.
[ASHOK BHUSHAN]
NEW DELHI; …………………………………..J.
DECEMBER 03, 2020 [M.R. SHAH]
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