Criminal Appeal Nos. 499 of 2011, 2105, 2108-2112, 2107 and 2106 of 2013. Case: 1. State of NCT of Delhi, 2. Jaysukh Bavanji Shingalia Vs 1. Sanjay, 2. State of Gujarat. Supreme Court (India)

Case NumberCriminal Appeal Nos. 499 of 2011, 2105, 2108-2112, 2107 and 2106 of 2013
JudgesM. Yusuf Eqbal and Pinaki Chandra Ghose, JJ.
IssueMines and Minerals (Development and Regulation) Act, 1957 - Sections 2, 4, 4(1), 4(1A), 4(2), 4(4), 4(4A), 5, 5A, 5(1), 5(2), 5(4), 6, 6(1), 6(2), 6(3), 9(1), 17, 18, 21, 21(1), 21(2), 21(3), 21(4), 21(6), 22, 23B, 23(C1), 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 50(1), 56; Companies Act, 1956 - Section 617; Prevention of Corruption Act,...
Judgement DateSeptember 04, 2014
CourtSupreme Court (India)

Judgment:

M. Yusuf 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, 'Indian Penal Code') 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 Code of Criminal Procedure seeking quashing of the FIR registered at Police Station Alipur Under Sections 379/114/120B/34 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code 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.

xxx

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. v. 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 Indian Penal Code. 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 Indian Penal Code 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 Indian Penal Code 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...

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