Crl. OP (MD) No. 13173 of 2011. Case: Sengol Vs State Rep. By Inspector of Police. Chennai (Madras) High Court

Case Number:Crl. OP (MD) No. 13173 of 2011
Party Name:Sengol Vs State Rep. By Inspector of Police
Counsel:For Petitioners: V. K. Saravanan, R. Shanmugasundaram, Sr. Counsel for S. Ravi, K. Anandan, Avds and For Respondent: K. Chellapandian, Addl. Advocate General, assisted by A. Ramar, Addl. Public Prosecutor
Judges:M. Jaichandren and S. Nagamuthu, JJ.
Issue:Constitution of India - Article 20(2); Criminal Procedure Code (2 of 1974) - Sections 154, 482
Citation:2012 CriLJ 1705
Judgement Date:January 05, 2012
Court:Chennai (Madras) High Court
 
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Judgment:

S. Nagamuthu, J.

  1. The petitioners, in Crl.O.P.No.13173 of 2011, are accused in the case in Crime No.101 of 2011, on the file of the Inspector of Police, R.S.Mangalam Police Station, Ramanathapuram District, for alleged offence said to have been committed by them punishable under Section 379 of IPC. Seeking to quash the said FIR, the petitioners have come up with the said original petition.

  2. The petitioner, in Crl. O.P. No.12992 of 2011, is the 1st accused in the case in Crime No.226 of 2011 on the file of the Inspector of Police, Mayanur Police Station, Karur District, for alleged offences said to have been committed by him punishable under Sections 143, 353, 506 (i) of IPC r/w 3(1) of T.N.P.P.D.L. Act, 1992 and Ss. 4(1), 4(1A), 21(1) of the Mines and Minerals (Development and Regulation) Act and Rule 36-A of the Minor Minerals Concession Rules, 1959. Seeking to quash the said FIR, he has come up with the said original petition.

  3. The petitioner, in Crl.O.P.No.14409 of 2011, is the accused in Crime No.40 of 2011 on the file of the District Crime Branch, Dindigul for alleged offences said to have been committed by him punishable under Sections 447 and 379 of IPC and 21(1) and 21(4) of the Mines and Minerals (Development and Regulation) Act. Seeking to quash the said FIR, he has come up with the said original petition.

  4. In all these petitions the common ground raised is that under Section 22 of the Mines and Minerals (Regulation and Development) Act, 1957 [hereinafter referred to as "The Mines and Minerals Act"], since cognizance can be taken by a competent court only on a private complaint to be preferred by a person authorised by the Central / State Government, the provisions of the Code of Criminal Procedure stand excluded and, therefore, FIR cannot be registered by the police and police report cannot be filed in respect of offences under the said Act.

  5. To substantiate the said ground, reliance has been made by these petitioners on a judgment of a learned single Judge of this Court in D.Sudharshan v. State, (2006) 2 MLJ (Crl) 115 and followed in Muthu and another v. State in Crl.O.P.(MD) No.12307 of 2011 dated 16.09.2011. In those two cases, two different learned single Judges of this Court have quashed the FIRs on the ground that Section 22 of the The Mines and Minerals Act will override the provisions of the General Law, viz., the Code of Criminal Procedure and so, the FIR registered under Section 379 of IPC, on the allegation that theft of sand belonging to the Government was committed by the accused, is illegal.

  6. When the Crl.O.P.O.P.[MD] No.13173 of 2011 came up for consideration before one of us [Justice S.Nagamuthu], the learned Government Advocate [Criminal Side] raised a doubt about the correctness of the ratio laid down in the above two judgments by the learned single Judges. The learned Government Advocate relied on Section 26 of the General Clauses Act and some judgments of the Hon'ble Supreme Court in this regard. Having considered the said rival submissions and having considered the substantial questions of law, having larger public importance involved, the matter was placed before the Hon'ble Administrative Judge of Madurai Bench to refer the said questions to a larger Bench to decide the following substantial questions of law:-

  7. Whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, will either explicitely 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?

  8. If a case is registered by the police both under the provisions of the Indian Penal Code as well as the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and a final report is submitted, whether it will be lawful for a Magistrate to take cognizance on the said final report?

  9. As per the direction of the Hon'ble Administrative Judge, the above two questions have been placed before this Division Bench by way of a reference to answer.

  10. We have heard learned Counsel appearing for the petitioners and the learned Additional Advocate General for the State and we have also perused the records carefully.

  11. In all these cases, the crux of the allegations made against the petitioners in the FIRs is that they committed theft of sand from rivers and river beds belonging to the Government. The said act also constitutes violation of the provisions of the The Mines and Minerals Act. The above said act committed by the petitioners, according to the prosecution, not only constitutes an offence punishable under Section 21 of the Mines and Minerals Act, but also constitutes offences punishable under the Indian Penal Code, more particularly, Section 379 of IPC. That is how, in these cases, apart from invoking the provisions of The Mines and Minerals Act, in the FIRs, Section 379 and other provisions of IPC have also been invoked.

  12. Before proceeding further into the rival contentions, let us have a look into the relevant provisions of The Mines and Minerals Act. Section 4 of The Mines and Minerals Act reads as follows:-

  13. 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, of 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 Explanation 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.]

    [(1-A) 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].]

  14. Section 21 of The Mines and Minerals Act reads thus:-

  15. Penalties.- [(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) 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.

    (4-A) 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.]

  16. Section 22 of The Mines and Minerals Act reads thus:-

  17. Cognizance of offences.- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon...

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