Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 499 OF 2011

STATE OF NCT OF DELHI … Appellant(s)

Versus

SANJAY … Respondent(s)

with

CRIMINAL APPEAL NO. 2105 OF 2013

JAYSUKH BAVANJI SHINGALIA … Appellant(s)

Versus

STATE OF GUJARAT AND ANOTHER … Respondent(s)

CRIMINAL APPEAL NOS. 2108-2112 of 2013

MALABHAI SHALABHAI RABARI AND OTHERS … Appellant(s)

Versus

STATE OF GUJARAT AND OTHERS …

Respondent(s)

CRIMINAL APPEAL NO.2107 of 2013

KALUBHAI DULABHAI KHACHAR … Appellant(s)

Versus

STATE OF GUJARAT AND ANOTHER … Respondent(s)

1

Page 2 CRIMINAL APPEAL NO.2106 of 2013

SONDABHAI HANUBHAI BHARWAD … Appellant(s)

Versus

STATE OF GUJARAT AND ANOTHER … Respondent(s)

JUDGMENT

M.Y.EQBAL, J.

1.The principal question which arises for consideration in

these appeals is whether the provisions contained in Sections

21, 22 and other sections of Mines and Minerals (Development

and Regulation) Act, 1957 operate as bar against prosecution

of a person who has been charged with allegation which

constitutes offences under Section 379/114 and other

provisions of the Indian Penal Code. In other words, whether

the provisions of Mines and Minerals Act explicitly or impliedly

excludes the provisions of Indian Penal Code when the act of an

accused is an offence both under the Indian Penal Code (in

2

Page 3 short, ‘IPC’) and under the provisions of Mines and Minerals

(Development and Regulation) Act.

2.Criminal Appeal No.499 of 2011 arose out of an order

passed by the Delhi High Court on an application under Section

482 Cr.P.C. seeking quashing of the FIR registered at Police

Station Alipur under Sections 379/114/120B/34 IPC on the

allegation that appellant was involved in illegal mining of sand

from the Yamuna basin. An FIR was registered by the police

suo motu having come to know that some persons were

removing and selling sand from the Yamuna basin for the last

so many days. On receipt of such information, the police

officers committed raid and visited the site where they found

one dumper filled with sand. Because of non-production of any

documents and valid papers, the digging equipments were

seized and taken into possession and persons were arrested.

An FIR was registered on the charges of illegal mining under

Section 379/114 IPC besides being cognizable offence under

Section 21 (4) of the Mines and Mineral (Development and

Regulation) Act, 1957 (in short the MMDR Act).

3

Page 4 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

4

Page 5 validity of mining complaint lodged by the State geologist

against them for offences under Section 379/114 of IPC and

under Section 21 of the MMDR Act. The appellants sought an

appropriate writ or direction to quash and set aside the criminal

proceedings on the same ground that Section 22 of the Act

prohibits registration of FIR with respect to offences punishable

under the said MMDR Act.

6.Criminal Appeal No.2107 of 2013

This appeal also arose out of the order passed by the High

Court of Gujarat on the application challenging the legality and

validity of criminal complaint filed before Bhuj Taluka Police

Station for the alleged illegal mining and transporting a dumper

loaded with black trap stone. A complaint was made with the

police for the commission of offence under Section 379 read

with Section 114 of the IPC and under Section 21 of the MMDR

Act.

7.Criminal Appeal No.2106 of 2013

5

Page 6 This appeal also arose out of a complaint filed before

Sayla Police Station by the Incharge Mines Supervisor, alleging

offence punishable under Sections 4(1) and 21(1) of the MMDR

Act. No charge sheet has been filed in this complaint so far.

8.Criminal Appeal No.499 of 2011, as stated above, arose

out of the order passed by the Delhi High Court. The Delhi High

Court formulated three issues for consideration:-

(1) Whether the police could have registered an

FIR in the case;

(2) Whether a cognizance can be taken by the

concerned Magistrate on the basis of police

report; and

(3) Whether a case of theft was made out for

permitting registration of an FIR under Section

379/411 of the Indian Penal Code.

The High Court after referring various provisions on the MMDR

Act vis-à-vis Code of Criminal Procedure disposed of the

application directing the respondent to amend the FIR, which

was registered, by converting the offence mentioned therein

under Section 379/411/120B/34 of IPC to Section 21 of the

MMDR Act. The High Court in para 18 of the impugned order

held as under:-

6

Page 7 “18. In view of the aforesaid and taking into

consideration the provisions contained under

Section 21 (6) of the said Act I hold that:

(i)The offence under the said Act being

cognizable offence, the Police could have

registered an FIR in this case;

(ii) However, so far as taking cognizance of

offence under the said Act is concerned, it can be

taken by the Magistrate only on the basis of a

complaint filed by an authorized officer, which

may be filed along with the police report;

(iii) Since the offence of mining of sand

without permission is punishable under Section 21

of the said Act, the question of said offence being

an offence under Section 379 IPC does not arise

because the said Act makes illegal mining as an

offence only when there is no permit/licence for

such extraction and a complaint in this regard is

filed by an authorized officer.”

9.On the other hand the Gujarat High Court formulated the

following question for consideration:-

Whether Section 22 of the Act would debar even

lodging an FIR before the police with respect to

the offences punishable under the said Act and

Rules made thereunder?

In Case such FIR’s are not debarred and the police

are permitted to investigate, can the concerned

Magistrate take cognizance of the offences on a

police report?

What would be the effect on the offences

punishable under the Indian Penal Code in view of

the provisions contained in the Act?

7

Page 8 10.The Gujarat High Court came to the following conclusion:-

(i) The offence under the said Act being

cognizable offence, the Police could have

registered an FIR in this case;

(ii) However, so far as taking cognizance of

offence under the said Act is concerned, it can be

taken by the Magistrate only on the basis of a

complaint filed by an authorized officer, which

may be filed along with the Police report;

(iii) Since the offence of mining of sand without

permission is punishable under Section 21 of the

said Act, the question of said offence being an

offence under Section 379 IPC does not arise

because the said Act makes illegal mining as an

offence only when there is no permit/licence for

such extraction and a complaint in this regard is

filed by an authorized officer.

The High Court, therefore, held that:-

1. Section 22 of the Act does not prohibit

registering an FIR by the police on information

being given with respect to offences punishable

under the said Act or the Rules made thereunder.

2. It is however, not open for the Magistrate to

take cognizance of the offence punishable under

the Act or the Rules made there under on a mere

charge- sheet filed by the police. It would,

however, be open for the officer authorized by the

state or the Central Government in this behalf to

file a complaint in writing before the Magistrate

relying upon the investigating carried out by the

police and the complaint may also include the

papers of the police investigation.

8

Page 9 3. With respect to offences punishable under

the Indian Penal Code, no such bar as indicated in

para (2) would apply.

xxxxxxx

22. In so far as the petitions where only FIRs

have been registered by the police and no charge

sheet is filed, they must fail. In so far as the cases

where police investigation has been concluded and

charge sheets have been filed, it would not be

open for the Magistrate concerned to take

cognizance of offences only on such police reports.

11.In the case of Sengol, Charles and K. Kannan, etc.etc.

vs. State Rep. by Inspector of Police , 2012 Cri LJ 1705,

2012(2) CTC 369, a similar question also came for

consideration before the Madras High Court where a batch of

writ petitions were heard and disposed of. The allegation

made against the writ petitioner in the FIR was that they

committed theft of sand from rivers and river-bed belonging to

the Government, which act also constitutes violation of the

provisions of MMDR Act. Accordingly, they were prosecuted

for the offence punishable under Section 21 of the MMDR Act

and also under Section 379 IPC. The question that came for

consideration before the Court was as to w hether the

9

Page 10 provisions of the Mines and Minerals (Development and

Regulation) Act, 1957, will either explicitly or impliedly exclude

the provisions of the Indian Penal Code when the act of an

accused is an offence both under the Indian Penal Code and

under the Provisions of the Mines and Minerals (Development

and Regulation) Act, 1957?

12.After considering various provisions of the Act, the

Division Bench observed:-

“35. A cursory comparison of these two provisions

with Section 378 of IPC would go to show that the

ingredients are totally different. The contravention

of the terms and conditions of mining lease, etc.

constitutes an offence punishable under Section

21 of the Mines and Minerals Act, whereas

dishonestly taking any movable property out of

the possession of a person without his consent

constitutes theft. Thus, it is undoubtedly clear that

the ingredients of an offence of theft as defined in

Section 378 of IPC are totally different from the

ingredients of an offence punishable under

Section 21(1) r/w Section 4(1) and 4(1A) of the

Mines and Minerals Act.”

13.The Calcutta High Court in the case of Smt. Seema

Sarkar vs. The State, (1995)1 CALLT 95(HC), has taken a

different view. In this case the Block Land Reforms Officer

lodged a complaint with the Police Station alleging inter alia

10

Page 11 that the accused persons unauthorisedly excavated the land of

ordinary clay for manufacturing brick without an authorized

licence and thereby violated Section 21(2) of the MMDR Act

and Section 379 IPC. The Bhatar police station registered the

complaint treating it as an FIR and GR case was started before

the sub-divisional judicial Magistrate, Faridabad. The order

taking cognizance and also the complaint was challenged by

the accused persons on the ground inter alia that no court is

competent and empowered to take cognizance of an offence

under the MMDR Act, 1957 unless the complaint is being

lodged by an authorized person. Quashing the complaint, the

Calcutta High Court held as under:-

“6. The learned Magistrate has taken cognizance

of. the offence on the basis of the charge-sheet as

submitted by the Police under Section 21(2) of the

Mines and Minerals (Regulation and Development)

Act, 1957 and Section 379 of the Indian Penal

Code. Cognizance can be taken under section 190

of the Code of Criminal Procedure, 1973.

Cognizance is one and it cannot be divided.

Splitting of cognizance is not permissible under

the law. This is the admitted position that the

complainant who lodged the complaint is not an

authorized person to make such complaint. So

taking cognizance on the basis of the complaint

by the learned Magistrate for violation of the

provision under Section 21(2) of the Mines and

Minerals (Regulation and Development) Act, 1957

11

Page 12 is bad. The only question that is left open is

whether taking cognizance itself is bad or a partial

cognizance can be taken? In the peculiarity of the

facts and circumstances of the case if the offence

as alleged under Section 379 I.P.C. against the

accused is dissociated from the allegation of

excavation of earth without license constituting an

offence under Section 21(2) of the Mines and

Minerals (Regulation and Development) Act, 1957,

then there is no ingredient for an offence under

Section 379 I.P.C. against the accused. Even if it is

assumed that there is such an ingredient then the

order of taking cognizance is bad because

cognizance is one and it cannot be made a split. If

it is found that taking cognizance of an offence is

bad the other part of the offence for which

cognizance has been taken cannot be sustained in

law.”

14.Since conflicting views have been taken by Gujarat High

Court, Delhi High Court, Kerala High Court, Calcutta High

Court, Madras High Court and Jharkhand High Court, and they

are in different tones, it is necessary to settle the question

involved in these appeals.

15.Mr. Nikhil Goel learned counsel appearing in Criminal

Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the

impugned order of the High court on various grounds. Learned

counsel firstly contended that Section 22 of MMDR Act per se

12

Page 13 puts a bar even on registration of the FIR and consequently on

investigation unless a direction to that effect comes from the

Magistrate and that too on a complaint in writing made by a

person authorized in this behalf. Learned counsel contended

that Section 21(6) of the Act makes the offence under sub-

section 1 of Section 21 to be cognizable irrespective of

anything contained to the contrary in the Code of Criminal

Procedure. Learned counsel contended that both Section

21(6) and Section 22 if read independently on each other

would make the other provision otiose. As a result, the bar

under Section 22 of the Act would not only prevail upon the

provisions contained in Section 190, Cr.P.C. but would prevail

over the chapter of the investigation, namely Chapter 12

Cr.P.C.

16.Learned counsel further submitted that in case the

cognizability of the offence contained in sub-clause 6 of

Section 21 is to be extended to include applicability of Chapter

12 of the Criminal Procedure Code, without complying with the

13

Page 14 provisions of Section 22, the same would present at least three

difficulties. Firstly, there are several provisions after the stage

of filing of charge-sheet which would be contrary to the

provisions and the rules contained in the 1957 Act. These

provisions in the act and the rules framed under the 1957

legislation inescapably indicate that almost everything relating

to an offence under the provisions of Section 21 has to be

done by the authorized officer. Accordingly, if the provisions

of Section 21(6) are to be extended to Chapter 12, while the

police may register an FIR, the power to seize, the power to

compound, the requirement of taking directions from the

jurisdictional magistrate are examples of some things which

the police cannot do in view of direct contrary to the provisions

in the 1957 Act. Learned counsel submitted that this power of the

police is equivalent to the same power/duty which arises pursuant to an

order of the Magistrate under Section 156 [3]. There would definitely be

cases where offences punishable under Section 20 were brought to the

notice of persons who were neither authorized person under the Act nor

the police. Therefore in such a situation, if the police fails to act, the

other option available to any person is to make an application under

14

Page 15 Section 156 [3]. However, in this case, the learned Magistrate has no

jurisdiction to pass an order under this provision in view of paragraph 11.

Therefore, it will be a completely incongruous situation if the

provisions of sub-clause 6 of Section 21 are to be extended to

Chapter 12 despite which several provisions in Chapter 12

cannot be invoked.

17.Learned counsel further submitted that the provisions of

Chapter 12 to 14 leading up to the magistrate taking

cognizance of an offence are a part of a common statutory

duty. The investigation under Section 156 of the Code has to

necessarily result in a report either under Section 170 or 173 of

the Code. The appellant submits that the magistrate is duty

bound to act on such report in one of the three manners

suggested in para-6 of 1980 (4) SCC 631. It is submitted that

there is no other option of preparation of final report and keep

it in abeyance. For this reason as well, the provisions of sub-

section (6) cannot be read into Chapter 12 of the code.

Learned counsel further submitted that the manner in which

15

Page 16 the various high courts have dealt with these provisions are

conflicting. The appellant relies upon the decision of Kerala

High Court reported in 2008 Cr.L.J. 2388, decision of Madras High

Court in Sengol (supra), the judgments of this Court reported in (2009) 7

SCC 526 and (2011) 1 SCC 534 on the interpretation of similar clauses

under different enactments. It was contended that if the intention of the

Legislature was to make violation of the provisions of Section 4 of the

MMDR Act as an offence of theft, there would have been an appropriate

provision in the MMDR Act itself. The counsel submits that there is a

specific purpose for which powers have been given to the authorized

person to take care of breaches under the Act and as such breaches are

to be tried under the general penal law as it would take away the

protection which an accused/suspect has been given under the MMDR

Act. The appellant submits that all penal statutes have to be construed

strictly and wherever there are two views possible, benefit to an accused

has to be given.

18.Before answering the question, we shall first refer in brief

the relevant provisions of Mines and Minerals (Development

and Regulation) Act, 1957 and Code of Criminal Procedure.

Section 4 of the Act puts a restriction on mining operation or

16

Page 17 prospecting mining operation by any person except under a

lease or licence. Section 4 reads as under:-

“4. Prospecting or mining operations to be

under licence or lease . (1) No person shall

undertake any reconnaissance, prospecting or

mining operations in any area, except under and in

accordance with the terms and conditions of a

reconnaissance permit or of a prospecting licence or,

as the case may be, a mining lease, granted under

this Act and the rules made thereunder:

Provided that nothing in this sub-section shall affect

any prospecting or mining operations undertaken in

any area in accordance with the terms and

conditions of a prospecting licence or mining lease

granted before the commencement of this Act which

is in force at such commencement.

Provided further that nothing in this sub-section shall

apply to any prospecting operations undertaken by

the Geological Survey of India, the Indian Bureau of

Mines, the Atomic Minerals Directorate for

Exploration and Research of the Department of

Atomic Energy of the Central Government, the

Directorates of Mining and Geology of any State

Government (by whatever name called), and the

Mineral Exploration Corporation Limited, a

Government Company within the meaning of Section

617 of the Companies Act, 1956.

Provided also that nothing in this sub-section shall

apply to any mining lease (whether called mining

lease, mining concession or by any other name) in

force immediately before the commencement of this

Act in the Union Territory of Goa, Daman and Diu.

(1A) No person shall transport or store or cause to be

transported or stored any mineral otherwise than in

accordance with the provisions of this Act and the

rules made thereunder.

(2) No reconnaissance permit, prospecting licence or

mining lease shall be granted otherwise than in

17

Page 18 accordance with the provisions of this Act and the

rules made thereunder.

(3) Any State Government may, after prior

consultation with the Central Government and in

accordance with the rules made under Section 18,

undertake reconnaissance, prospecting or mining

operations with respect to any mineral specified in

the First Schedule in any area within that State which

is not already held under any reconnaissance permit,

prospecting licence or mining lease.”

19.From a bare perusal of Section 4, particularly Section

4(1A) would show that there is a total restriction on

transportation or search of minerals otherwise than in

accordance with the provisions of the Act and the rules made

thereunder. The next relevant provisions are Sections 21 and

22 of the Act. Section 21 reads as under :-

“Penalties 21. (1) Whoever contravenes the

provisions of sub-section (1) or sub-section (1A) of

section 4 shall be punished with imprisonment for a

term which may extend to two years, or with fine

which may extend to twenty-five thousand rupees, or

with both.

(2) Any rule made under any provision of this Act

may provide that any contravention thereof shall be

punishable with imprisonment for a term which may

extend to one year or with fine which may extend to

five thousand rupees, or with both, and in the case of

a continuing contravention, with an additional fine

which may extend to five hundred rupees for every

day during which such contravention continues after

conviction for the first such contravention.

(3) Where any person trespasses into any land in

contravention of the provisions of sub-section (1) of

section 4, such trespasser may be served with an

18

Page 19 order of eviction by the State Government or any

authority authorised in this behalf by that

Government and the State Government or such

authorised authority may, if necessary, obtain the

help of the police to evict the trespasser from the

land.

(4) Whenever any person raises, transports or

causes to be raised or transported, without any

lawful authority, any mineral from any land, and, for

that purpose, uses any tool, equipment, vehicle or

any other thing, such mineral, tool, equipment,

vehicle or any other thing shall be liable to be seized

by an officer or authority specially empowered in this

behalf.

(4A) Any mineral, tool, equipment, vehicle or any

other thing seized under sub-section (4), shall be

liable to be confiscated by an order of the court

competent to take cognizance of the offence under

sub-section (1) and shall be disposed of in

accordance with the directions of such court.

(5) Whenever any person raises, without any

lawful authority, any mineral from any land, the State

Government may recover from such person the

mineral so raised, or, where such mineral has already

been disposed of, the price thereof, and may also

recover from such person, rent, royalty or tax, as the

case may be, for the period during which the land

was occupied by such person without any lawful

authority.

(6) Notwithstanding anything contained in the

Code of Criminal Procedure, 1973, an offence under

sub-section (1) shall be cognizable.”

20.Section 21 is a penalty provision in case of contravention

of Section 4(1A) of the Act and is punishable with imprisonment

19

Page 20 for a term which may extend to two years. Sub-section 3 of

Section 21 would show that the State Government or any other

authority authorized by the State Government may obtain the

help of police to evict the trespassers from the land who is

doing mining activity in contravention of the provisions of the

Act. Sub-section 4 further empowered the officer or an

authority specially empowered in this behalf to seize any tool,

equipment, vehicle or any other thing which are used by any

person who illegally or without any lawful authority erases,

transports any minerals from any land. Those minerals, tools,

equipment or vehicle or any other thing so seized shall be

confiscated by the order of the court competent to take

cognizance and shall be disposed of in accordance with the

direction of such court as contemplated under sub-section 4(A)

of Section 4 of the Act. Sub-section (6) of Section 21 has been

inserted by an Amendment Act of 1986 whereby an offence

under Sub-section (1) of this Section has been made

cognizable. Section 22 which is very relevant for the instant

case needs to be quoted hereinbelow :-

20

Page 21 “22. Cognizance of offences

No court shall take cognizance of any offence

punishable under this Act or any rules made

thereunder except upon complaint in writing made

by a person authorised in this behalf by the Central

Government or the State Government.”

21.Reading the aforesaid provision would show that

cognizance of any offence punishable under the Act or the

Rules made thereunder shall be taken only upon a written

complaint made by a person authorized in this behalf by the

Central Government or the State Government.

22.Section 23(B) confers power to any gazetted officer of the

Central or State Government authorized on that behalf to make

search of minerals, documents or things in case there is a

reason to believe that any mineral has been raised in

contravention of the Act or the Rules made thereunder. While

making search provisions of Section 100 of Code of Criminal

Procedure has been made applicable to every search.

“23B. Power to search -- . If any gazetted officer

of the Central or a State Government authorised by

the Central Government [or a State Government, as

the case may be, in this behalf by general or

special order has reason to believe that any mineral

21

Page 22 has been raised in contravention of the provisions

of this Act or rules made thereunder or any

document or thing in relation to such mineral is

secreted in any place [or vehicle,] he may search

for such mineral, document or thing and the

provisions of section 100 of the Code of Criminal

Procedure, 1973 shall apply to every such search.”

23.In exercise of powers conferred by Section 23(C)(1) of the

MMDR Act, the Government of Gujarat made rules called

Gujarat Mineral (Prevention of Illegal Mining, Transportation

and Storage) Rules, 2005. The said Rules, inter alia, made

provisions to search, seizure and confiscation of the property in

the manner provided under the Act as and when a person

violates the provisions of the Act and the Rules made

thereunder in doing mining activities.

24.Looking into the provisions the Code of Criminal

Procedure, 1973 the relevant provisions need to be referred

hereunder. Section 2(c), 2(d) and 2(h) define cognizable

offence, complaint and investigation which reads as under :-

“2(c)“cognizable offence” means an offence for

which, and “cognizable case” means a case in

which, a police officer may, in accordance with the

22

Page 23 First Schedule or under any other law for the time

being in force, arrest without warrant;

2(d)“complaint” means any allegation made

orally or in writing to a Magistrate, with a view to

his taking action under this Code, that some

person, whether known or unknown, has

committed an offence, but does not include a

police report.

2(h)“investigation” includes all the proceedings

under this Code for the collection of evidence

conducted by a police officer or by any person

(other than a Magistrate) who is authorized by a

Magistrate in this behalf;”

25.Section 4 provides that all offences under the Indian Penal

Code shall be investigated, inquired into, tried and otherwise

dealt with according to the provisions contained in the said

Code. Sub-section (2) of Section 4 provides that all offences

under any other law shall be inquired into, tried and otherwise

dealt with according to the same provisions but subject to any

enactment regulating the mining or place of investigation,

inquiry or trial of such offences. Coming to the provisions of

Section 41 of the Code, it will show that a police officer without

an order of Magistrate and warrant can arrest any person who

commits a cognizable offence. The Court may also arrest any

person against whom a reasonable complaint has been made

23

Page 24 or credible information has been received or a reasonable

suspicion exist that he has committed a cognizable offence

punishable with imprisonment for a term which made less than

seven years. The relevant part of Section 41, Cr.P.C. is quoted

hereinbelow:-

“41. When police may arrest without

warrant .-

(1) Any police officer may without an order

from a Magistrate and without a warrant, arrest

any person—

(a) who commits, in the presence of a police

officer, a cognizable offence;

(b) against whom a reasonable complaint has

been made, or credible information has been

received, or a reasonable suspicion exists that

he has committed a cognizable offence

punishable with imprisonment for a term which

may be less than seven years or which may

extend to seven years whether with or without

fine, if the following conditions are satisfied,

namely:-

(i) the police officer has reason to believe on

the basis of such complaint, information, or

suspicion that such person has committed the

said offence;

(ii) the police officer is satisfied that such arrest

is necessary-

(a) to prevent such person from committing

any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the

evidence of the offence to disappear or

tampering with such evidence in any manner;

or

(d) to prevent such person from making any

inducement, threat or promise to any

person acquainted with the facts of the case so

24

Page 25 as to dissuade him from disclosing such facts

to the Court or to the police officer; or

(e) as unless such person is arrested, his

presence in the Court whenever required

cannot be ensured,

and the police officer shall record while making

such arrest, his reasons in writing.

……………… ..”

26.Chapter 11 of the Code confers very important power and

duty upon the police officer to take preventive action in certain

cases. Sections 149, 150, 151 and 152 of the Code are worth

to be referred to and quoted hereinbelow :-

“149. Police to prevent cognizable

offences – Every police officer may interpose for

the purpose of preventing, and shall, to the best

of his ability, prevent, the commission of any

cognizable offence.

150. Information of design to commit

cognizable offences – Every police officer

receiving information of a design to commit any

cognizable offence shall communicate such

information to the police officer to whom he is

subordinate, and to any other officer whose duty

it is to prevent or take cognizance of the

commission of any such offence.

151.Arrest to prevent the commission of

cognizable offences – (1)A police officer,

knowing of a design to commit any cognizable

offence may arrest, without orders from a

Magistrate and without a warrant, the person so

designing, if it appears to such officer that the

commission of the offence cannot be otherwise

prevented.

(2)No person arrested under sub-section

(1) shall be detained in custody for a period

25

Page 26 exceeding twenty-four hours from the time of his

arrest unless his further detention is required or

authorized under any other provisions of this Code

or any other law for the time being in force.

152. Prevention of injury to public

property.- A police office may of his own

authority interpose to prevent any injury

attempted to be committed in his view to any

public property, movable or immovable, or the

removal or injury of any public landmark or buoy

or other mark used for navigation.”

27. Perusal of aforementioned provisions would show that a

police officer of his own authority has the duty to prevent any

injury attempted to be committed to any public property or

national assets and to prosecute such person in accordance

with law.

28.The policy and object of Mines and Minerals Act and Rules

have a long history and are the result of an increasing

awareness of the compelling need to restore the serious

ecological imbalance and to stop the damages being caused to

the nature.

29. The Court cannot lose sight of the fact that adverse and

destructive environmental impact of sand mining has been

26

Page 27 discussed in the UNEP Global Environmental Alert Service

report. As per the contents of the report, lack of proper

scientific methodology for river sand mining has led to

indiscriminate sand mining, while weak governance and

corruption have led to widespread illegal mining. While

referring to the proposition in India, it was stated that Sand

trading is a lucrative business, and there is evidence of illegal

trading such as the case of the influential mafias in our

Country.

30. The mining of aggregates in rivers has led to severe

damage to river, including pollution and changes in levels of

pH. Removing sediment from rivers causes the river to cut its

channel through the bed of the valley floor, or channel incision,

both upstream and downstream of the extraction site. This

leads to coarsening of bed material and lateral channel

instability. It can change the riverbed itself. The removal of

more than 12 million tonnes of sand a year from the Vembanad

Lake catchment in India has led to the lowering of the riverbed

by 7 to 15 centimetres a year. Incision can also cause the

27

Page 28 alluvial aquifer to drain to a lower level, resulting in a loss of

aquifer storage. It can also increase flood frequency and

intensity by reducing flood regulation capacity. However,

lowering the water table is most threatening to water supply

exacerbating drought occurrence and severity as tributaries of

major rivers dry up when sand mining reaches certain

thresholds.

31. Illegal sand mining also causes erosion. Damming and

mining have reduced sediment delivery from rivers to many

coastal areas, leading to accelerated beach erosion.

32. The report also dealt with the astonishing impact of sand

mining on the economy. It states that the tourism may be

affected through beach erosion. Fishing, both traditional and

commercial — can be affected through destruction of benthic

fauna. Agriculture could be affected through loss of agricultural

land from river erosion and the lowering of the water table. The

insurance sector is affected through exacerbation of the impact

of extreme events such as floods, droughts and storm surges

through decreased protection of beach fronts. The erosion of

28

Page 29 coastal areas and beaches affects houses and infrastructure. A

decrease in bed load or channel shortening can cause

downstream erosion including bank erosion and the

undercutting or undermining of engineering structures such as

bridges, side protection walls and structures for water supply.

33. Sand is often removed from beaches to build hotels, roads

and other tourism-related infrastructure. In some locations,

continued construction is likely to lead to an unsustainable

situation and destruction of the main natural attraction for

visitors — beaches themselves.

34. Mining from, within or near a riverbed has a direct impact

on the stream’s physical characteristics, such as channel

geometry, bed elevation, substratum composition and stability,

instream roughness of the bed, flow velocity, discharge

capacity, sediment transportation capacity, turbidity,

temperature, etc. Alteration or modification of the above

attributes may cause hazardous impact on ecological

29

Page 30 equilibrium of riverine regime. This may also cause adverse

impact on instream biota and riparian habitats. This

disturbance may also cause changes in channel configuration

and flow-paths.

35.In the case of M. Palanisamy vs. The State of Tamil

Nadu, 2012 (4) CTC 1, the amended provisions of the Tamil

Nadu Mines and Minerals Concession Rules, 1959 was

challenged on the ground that the said Rules for the purpose of

preventing and restricting illegal mining, transportation and

storage of minerals are ultra vires constitutional provisions and

the provisions of the Mine and Minerals (Development and

Regulation) Act, 1957. Upholding the vires of the Rules, the

Division Bench (one of us, Eqbal, J. as he then was) of the

Madras High Court, elaborately discussed the object of

restriction put in the illegal mining, transportation and storage

of minerals including sand and after considering various reports

observed thus:

“20. In order to appreciate the issue involved in

these Writ Petitions, we may have to look at the

larger picture - the impact of indiscriminate,

30

Page 31 uninterrupted sand quarrying on the already brittle

ecological set up of ours. According to expert reports,

for thousands of years, sand and gravel have been

used in the construction of roads and buildings.

Today, demand for sand and gravel continues to

increase. Mining operators, instead of working in

conjunction with cognizant resource agencies to

ensure that sand mining is conducted in a

responsible manner, are engaged in full-time

profiteering. Excessive in-stream sand-and-gravel

mining from river beds and like resources causes the

degradation of rivers. In-stream mining lowers the

stream bottom, which leads to bank erosion.

Depletion of sand in the stream-bed and along

coastal areas causes the deepening of rivers and

estuaries and enlargement of river mouths and

coastal inlets. It also leads to saline-water intrusion

from the nearby sea. The effect of mining is

compounded by the effect of sea level rise. Any

volume of sand exported from stream-beds and

coastal areas is a loss to the system. Excessive in-

stream sand mining is a threat to bridges, river

banks and nearby structures. Sand mining also

affects the adjoining groundwater system and the

uses that local people make of the river. Further,

according to researches, in-stream sand mining

results in the destruction of aquatic and riparian

habitat through wholesale changes in the channel

morphology. The ill effects include bed degradation,

bed coarsening, lowered water tables near the

stream-bed, and channel instability. These physical

impacts cause degradation of riparian and aquatic

biota and may lead to the undermining of bridges

and other structures. Continued extraction of sand

from river beds may also cause the entire stream-

bed to degrade to the depth of excavation.

22. The most important effects of in-stream sand

mining on aquatic habitats are bed degradation and

sedimentation, which can have substantial negative

effects on aquatic life. The stability of sand-bed and

gravel-bed streams depends on a delicate balance

between stream flow, the sediments supplied from

the watershed and the channel form. Mining-induced

changes in sediment supply and channel form disrupt

the channel and the habitat development processes.

31

Page 32 Furthermore, movement of unstable substrates

results in downstream sedimentation of habitats. The

affected distance depends on the intensity of mining,

particles sizes, stream flows, and channel

morphology.

23. Apart from threatening bridges, sand mining

transforms the riverbeds into large and deep pits; as

a result, the groundwater table drops leaving the

drinking water wells on the embankments of these

rivers dry. Bed degradation from in-stream mining

lowers the elevation of stream flow and the

floodplain water table, which in turn, can eliminate

water table-dependent woody vegetation in riparian

areas and decrease wetted periods in riparian

wetlands. So far as locations close to the sea are

concerned, saline water may intrude into the fresh

waterbody.”

36.In the case of Centre for Public Interest Litigation

vs. Union of India , (2012) 3 SCC 1 , this Court, while

observing that the natural resources are the public property

and national assets, held as under:-

“75. The State is empowered to distribute natural

resources. However, as they constitute public

property/national asset, while distributing natural

resources the State is bound to act in consonance

with the principles of equality and public trust and

ensure that no action is taken which may be

detrimental to public interest. Like any other State

action, constitutionalism must be reflected at every

stage of the distribution of natural resources. In

Article 39(b) of the Constitution it has been provided

that the ownership and control of the material

resources of the community should be so distributed

so as to best subserve the common good, but no

comprehensive legislation has been enacted to

generally define natural resources and a framework

32

Page 33 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.”

37.In the case of M.C. Mehta vs. Kamal Nath and others (1997)

1 SCC 388, this Court while considering the doctrine of public trust which

extend to natural resources observed as under:-

“24. The ancient Roman Empire developed a legal

theory known as the “Doctrine of the Public Trust”. It

was founded on the ideas that certain common

properties such as rivers, seashore, forests and the air

were held by Government in trusteeship for the free

and unimpeded use of the general public. Our

contemporary concern about “the environment” bear a

very close conceptual relationship to this legal doctrine.

Under the Roman law these resources were either

owned by no one ( res nullious) or by every one in

common (res communious). Under the English common

law, however, the Sovereign could own these resources

but the ownership was limited in nature, the Crown

could not grant these properties to private owners if

the effect was to interfere with the public interests in

navigation or fishing. Resources that were suitable for

these uses were deemed to be held in trust by the

Crown for the benefit of the public. Joseph L. Sax,

Professor of Law, University of Michigan — proponent of

the Modern Public Trust Doctrine — in an erudite article

“Public Trust Doctrine in Natural Resource Law :

Effective Judicial Intervention”, Michigan Law Review,

Vol. 68, Part 1 p. 473, has given the historical

background of the Public Trust Doctrine as under:

“The source of modern public trust law is found in a

concept that received much attention in Roman and

English law — the nature of property rights in rivers, the

sea, and the seashore. That history has been given

considerable attention in the legal literature, need not

be repeated in detail here. But two points should be

emphasized. First, certain interests, such as navigation

33

Page 34 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 subject to the trust must not

only be used for a public purpose, but it must be held

available for use by the general public; second, the

property may not be sold, even for a fair cash

equivalent; and third the property must be maintained

for particular types of uses.”

xxxxxxxxx

34. Our legal system — based on English common law

— includes the public trust doctrine as part of its

jurisprudence. The State is the trustee of all natural

resources which are by nature meant for public use and

enjoyment. Public at large is the beneficiary of the sea-

shore, running waters, airs, forests and ecologically

fragile lands. The State as a trustee is under a legal

34

Page 35 duty to protect the natural resources. These resources

meant for public use cannot be converted into private

ownership.”

38.In the case of Intellectuals Forum vs. State of A.P.,

(2006) 3 SCC 549, this Court while balancing the conservation

of natural resources vis-à-vis urban development observed as

under:-

“67. The responsibility of the State to protect the

environment is now a well-accepted notion in all

countries. It is this notion that, in international law,

gave rise to the principle of “State responsibility” for

pollution emanating within one’s own territories (Corfu

Channel case). This responsibility is clearly enunciated

in the United Nations Conference on the Human

Environment, Stockholm 1972 (Stockholm Convention),

to which India was a party. The relevant clause of this

declaration in the present context is para 2, which

states:

“The natural resources of the earth, including the air,

water, land, flora and fauna and especially

representative samples of natural ecosystems, must be

safeguarded for the benefit of present and future

generations through careful planning or management,

as appropriate.”

Thus, there is no doubt about the fact that there is a

responsibility bestowed upon the Government to protect

and preserve the tanks, which are an important part of

the environment of the area.”

39.In the case of Manohar Lal Sharma vs. Principal

Secretary, (2014) 2 SCC 532, this Court while considering the

power of the police officer observed as under:-

35

Page 36 “24. In the criminal justice system the investigation

of an offence is the domain of the police. The power

to investigate into the cognizable offences by the

police officer is ordinarily not impinged by any

fetters. However, such power has to be exercised

consistent with the statutory provisions and for

legitimate purpose. The courts ordinarily do not

interfere in the matters of investigation by police,

particularly, when the facts and circumstances do

not indicate that the investigating officer is not

functioning bona fide. In very exceptional cases,

however, where the court finds that the police officer

has exercised his investigatory powers in breach of

the statutory provision putting the personal liberty

and/or the property of the citizen in jeopardy by

illegal and improper use of the power or there is

abuse of the investigatory power and process by the

police officer or the investigation by the police is

found to be not bona fide or the investigation is

tainted with animosity, the court may intervene to

protect the personal and/or property rights of the

citizens.”

40.In the case of State of M.P. vs. Ram Singh, (2000) 5

SCC 88, this Court was considering an order by which the High

Court quashed the investigation and consequent proceedings

conducted and concluded by the police under Section 13(1)(e)

and 13(2) of the Prevention of Corruption Act, 1988 on the

ground that the investigation had not been conducted by an

authorized officer in terms of Section 17 of the Act. The Court

held that the Act was intended to make effective provision for

the prevention of bribery and corruption rampant amongst

36

Page 37 the public servants. It is a social legislation intended to curb

illegal activities of the public servant and is designed to be

liberally construed so as to advance its object. The Court

observed:-

“9. The menace of corruption was found to have

enormously increased by the First and Second World War

conditions. Corruption, at the initial stages, was

considered confined to the bureaucracy which had the

opportunities to deal with a variety of State largesse in

the form of contracts, licences and grants. Even after the

war the opportunities for corruption continued as large

amounts of government surplus stores were required to

be disposed of by the public servants. As a consequence

of the wars the shortage of various goods necessitated

the imposition of controls and extensive schemes of

post-war reconstruction involving the disbursement of

huge sums of money which lay in the control of the

public servants giving them a wide discretion with the

result of luring them to the glittering shine of wealth and

property. In order to consolidate and amend the laws

relating to prevention of corruption and matters

connected thereto, the Prevention of Corruption Act,

1947 was enacted which was amended from time to

time. In the year 1988 a new Act on the subject being

Act 49 of 1988 was enacted with the object of dealing

with the circumstances, contingencies and shortcomings

which were noticed in the working and implementation

of the 1947 Act. The law relating to prevention of

corruption was essentially made to deal with the public

servants, not as understood in common parlance but

specifically defined in the Act.

xxxxx

14. It may be noticed at this stage that a three-Judge

Bench of this Court in H.N. Rishbud v. State of Delhi, AIR

1955 SC 196, had held that a defect or illegality in

investigation, however serious, has no direct bearing on

the competence or the procedure relating to cognizance

or trial. Referring to the provisions of Sections 190, 193,

37

Page 38 195 to 199 and 537 of the Code of Criminal Procedure

(1898) in the context of an offence under the Prevention

of Corruption Act, 1947, the Court held:

“A defect or illegality in investigation, however

serious, has no direct bearing on the competence or the

procedure relating to cognizance or trial. No doubt a

police report which results from an investigation is

provided in Section 190 Cr.PC as the material on which

cognizance is taken. But it cannot be maintained that a

valid and legal police report is the foundation of the

jurisdiction of the court to take cognizance. Section 190

Cr.PC is one out of a group of sections under the heading

‘Conditions requisite for initiation of proceedings’. The

language of this section is in marked contrast with that

of the other sections of the group under the same

heading, i.e., Sections 193 and 195 to 199.

These latter sections regulate the competence of the

court and bar its jurisdiction in certain cases excepting

in compliance therewith. But Section 190 does not.

While no doubt, in one sense, clauses (a), (b) and (c) of

Section 190(1) are conditions requisite for taking of

cognizance, it is not possible to say that cognizance on

an invalid police report is prohibited and is therefore a

nullity. Such an invalid report may still fall either under

clause (a) or (b) of Section 190(1), (whether it is the one

or the other we need not pause to consider) and in any

case cognizance so taken is only in the nature of error

in a proceeding antecedent to the trial. To such a

situation Section 537 Cr.PC which is in the following

terms is attracted:

‘Subject to the provisions hereinbefore contained, no

finding, sentence or order passed by a court of

competent jurisdiction shall be reversed or altered on

appeal or revision on account of any error, omission or

irregularity in the complaint, summons, warrant, charge,

proclamation, order, judgment or other proceedings

before or during trial or in any inquiry or other

proceedings under this Code, unless such error, omission

or irregularity, has in fact occasioned a failure of justice.’

If, therefore, cognizance is in fact taken, on a police

report vitiated by the breach of a mandatory provision

relating to investigation, there can be no doubt that the

result of the trial which follows it cannot be set aside

38

Page 39 unless the illegality in the investigation can be shown to

have brought about a miscarriage of justice. That an

illegality committed in the course of investigation does

not affect the competence and the jurisdiction of the

court for trial is well settled as appears from the cases in

— ‘Parbhu v. Emperor, AIR 1944 PC 73, and —

‘Lumbhardar Zutshi v. R., AIR 1950 PC 26 ”

It further held:

“In our opinion, therefore, when such a breach is

brought to the notice of the court at an early stage of the

trial, the court will have to consider the nature and

extent of the violation and pass appropriate orders for

such reinvestigation as may be called for, wholly or

partly, and by such officer as it considers appropriate

with reference to the requirements of Section 5-A of the

Act. It is in the light of the above considerations that the

validity or otherwise of the objection as to the violation

of Section 5(4) of the Act has to be decided and the

course to be adopted in these proceedings, determined.”

41.In the case of Directorate of Enforcement vs. Deepak

Mahajan, (1994) 3 SCC 440, the question came up for

consideration before this Court was as to whether a Magistrate

before whom a person arrested under Section 35 of the Foreign

Exchange Regulation Act, 1973 is produced, has jurisdiction to

authorize detention of that person under Section 167(2) of the

Code of Criminal Procedure. Answering that question the Court

observed:-

“23. Keeping in view the cardinal principle of law that

every law is designed to further the ends of justice but

not to frustrate on the mere technicalities, we shall deal

39

Page 40 with all those challenges in the background of the

principles of statutory interpretations and of the purpose

and the spirit of the concerned Acts as gathered from

their intendment.

24. The concerned relevant provisions of the Acts

with which we are concerned, no doubt, pose some

difficulty in resolving the question with regard to the

jurisdiction of the Magistrate authorising detention and

subsequent extension of the same when the provisions

of those Acts are narrowly and literally interpreted.

Though the function of the courts is only to expound the

law and not to legislate, nonetheless the legislature

cannot be asked to sit to resolve the difficulties in the

implementation of its intention and the spirit of the law.

In such circumstances, it is the duty of the court to

mould or creatively interpret the legislation by liberally

interpreting the statute.

xxxxxxxxxxxx

134. There are a series of decisions of various High

Courts, of course with some exception, taking the view

that a Magistrate before whom a person arrested by the

competent authority under the FERA or Customs Act is

produced, can authorise detention in exercise of his

powers under Section 167. Otherwise the mandatory

direction under the provision of Section 35(2) of FERA or

Section 104(2) of the Customs Act, to take every person

arrested before the Magistrate without unnecessary

delay when the arrestee was not released on bail under

sub-section (3) of those special Acts, will become

purposeless and meaningless and to say that the courts

even in the event of refusal of bail have no choice but to

set the person arrested at liberty by folding their hands

as a helpless spectator in the face of what is termed as

“legislative casus omissus” or legal flaw or lacuna, it will

become utterly illogical and absurd.”

42.In the case of Maqbool Hussain vs. State of Bombay ,

AIR 1953 SC 325, the question that fell for consideration before

the Constitution Bench of this Court was whether by reason of

40

Page 41 the proceedings taken by the Sea Customs authorities the

appellant could be said to have been prosecuted and punished

for the same offence with which he was charged in the court of

the Chief Presidency Magistrate, Bombay. In the said case,

gold had been brought by the appellant from Jeddah in

contravention of the provisions of Foreign Exchange Regulation

Act, 1947. He was also liable to be prosecuted under the Sea

Customs Act. The prosecution was challenged as being

violative of Article 20(2) of the Constitution. The Constitution

Bench answering the question held as under:

“…There is no doubt that the act which constitutes

an offence under the Sea Customs Act as also an

offence under the Foreign Exchange Regulation Act

was one and the same, viz., importing the gold in

contravention of the notification of the Government

of India dated the 25th August, 1948. The appellant

could be proceeded against under section 167(8) of

the Sea Customs Act as also under section 23 of the

Foreign Exchange Regulation Act in respect of the

said act. Proceedings were in fact taken under

section 167(8) of the Sea Customs Act which resulted

in the confiscation of the gold. Further proceedings

were taken under section 23 of the Foreign Exchange

Regulation Act by way of filing the complaint

aforesaid in the Court of the Chief Presidency

Magistrate, Bombay, and the plea which was taken

by the accused in bar of the prosecution in the Court

of the Chief Presidency Magistrate, was that he had

already been prosecuted and punished for the same

41

Page 42 offence and by virtue of the provisions of

article 20(2) of the Constitution he could not be

prosecuted and punished again.”

43.This Court further observed that:

“The fundamental right which is guaranteed in

article 20(2) enunciates the principle of "autrefois

convict" or "double jeopardy". The roots of that

principle are to be found in the well established rule

of the common law of England "that where a person

has been convicted of an offence by a court of

competent jurisdiction the conviction is a bar to all

further criminal proceedings for the same offence."

(Per Charles J. in Reg. v. Miles 24, Q.B.D. 423. To the

same effect is the ancient maxim "Nemo bis debet

punire pro uno delicto", that is to say that no one

ought to be twice punished for one offence or as it is

sometimes written "pro eadem causa", that is, for

the same cause.”

44.In the case of State of Bombay vs. S.L. Apte , AIR 1961

SC 578, the question that fell for consideration was whether in

view of an earlier conviction and sentence under Section 409,

IPC, the subsequent prosecution for an offence under Section

105 of the Insurance Act was barred by Section 26 of the

General Clauses Act and Article 20(2) of the Constitution.

42

Page 43 Answering the question, the Constitution Bench of this Court

observed:

“14.To operate as a bar the second prosecution

and the consequential punishment thereunder must

be for "the same offence". The crucial requirement,

therefore for attracting the Article is that the

offences are the same, i.e., they should be identical.

If, however, the two offences are distinct, then

notwithstanding that the allegations of facts in the

two complaints might be substantially similar, the

benefit of the ban cannot be invoked. It is, therefore,

necessary to analyse and compare not the

allegations in the two complaints but the ingredients

of the two offences and see whether their identity is

made out. It would be seen from a comparison of

s. 105 of the Insurance Act and s. 405 of Indian Penal

Code (s. 409 of the Indian Penal Code being only an

aggravated form of the same offence) that though

some of the necessary ingredients are common they

differ in the following :

(1) Whereas under s. 405 of the Indian Penal Code

the accused must be "entrusted" with property or

with "dominion over that property", under s. 105 of

the Insurance Act the entrustment or dominion over

property is unnecessary; it is sufficient if the

manager, director, etc. "obtains possession" of the

property.

(2) The offence of criminal breach of trust (s. 405 of

the Indian Penal Code) is not committed unless the

act of misappropriation or conversion or "the

disposition in violation of the law or contract", is

done with a dishonest intention, but s. 105 of the

Insurance Act postulates no intention and punishes

as an offence the mere withholding of the property -

whatever be the intent with which the same is done,

and the act of application of the property of an

insurer to purposes other than those authorised by

43

Page 44 the Act is similarly without reference to any intent

with which such application or misapplication is

made. In these circumstances it does not seem

possible to say that the offence of criminal breach of

trust under the Indian Penal Code is the "same

offence" for which the respondents were prosecuted

on the complaint of the company charging them with

an offence under s. 105 of the Insurance Act.

15.This aspect of the matter based on the two

offences being distinct in their ingredients, content

and scope was not presented to the learned Judges

of the High Court, possibly because the decisions of

this Court construing and explaining the scope of

Art. 20(2) were rendered later. In Om Prakash Gupta

v. State of U.P. [1957] S.C.R. 423 the accused, a

clerk of a municipality had been convicted of an

offence under s. 409 of the Indian Penal Code for

having misappropriated sums of money received by

him in his capacity as a servant of the local authority

and the conviction had been affirmed on appeal, by

the Sessions Judge and in revision by the High Court.

The plea raised by the accused before this Court, in

which the matter was brought by an appeal with

special leave, was that s. 409 of the Indian Penal

Code had been repealed by implication by the

enactment of sub-ss. (1)(c) and (2) of s. 5 of the

Prevention of Corruption Act because the latter dealt

with an offence of substantially the same type. This

court repelled that contention. It analysed the

ingredients of the two offences and after pointing out

the difference in the crucial elements which

constituted the offences under the two provisions,

held that there was no repeal of s. 409 of the Indian

Penal Code implied by the constitution of a new

offence under the terms of the Prevention of

Corruption Act. It was the application of this decision

and the ratio underlying it in the context of

Art. 20(2) of the Constitution that is of relevance to

the present appeal. The occasion for this arose in

State of Madhya Pradesh v. Veereshwar Rao

Agnihotry [1957] S.C.R. 868 The respondent was a

tax-collector under a municipality and was

prosecuted for offences among others under

s. 409 of the Indian Penal Code and s. 5(2) of the

44

Page 45 Prevention of Corruption Act for misappropriation of

sums entrusted to him as such tax-collector. By

virtue of the provision contained in s. 7 of the

Criminal Law Amendment Act, XLVI of 1952, the case

was transferred to a Special Judge who was

appointed by the State Government after the

prosecution was commenced before a Magistrate.

The Special Judge found the accused guilty of the

offence under s. 409 of the Indian Penal Code and

convicted him to three years' rigorous imprisonment

but as regards the charge under s. 5(2) of the

Prevention of Corruption Act, he acquitted the

accused on the ground of certain procedural non-

compliance with the rules as to investigation

prescribed by the latter enactment. The respondent

appealed to the High Court against this conviction

and sentence under s. 409 of the Indian Penal Code

and there urged that by reason of his acquittal in

respect of the offence under s. 5(2) of the Prevention

of Corruption Act, his conviction under s. 409 of the

Indian Penal Code could not also be maintained, the

same being barred by Art. 20(2) of the Constitution.

The High Court of Madhya Bharat accepted this

argument and allowed the appeal and the State

challenged the correctness of this decision by an

appeal to this Court. Allowing the appeal of the State,

Govinda Menon, J., delivering the judgment of the

Court observed :

"This Court has recently held in Om Prakash

Gupta v. The State of U.P. that the offence of

criminal misconduct punishable under s. 5(2) of

the Prevention of Corruption Act, II of 1947, is

not identical in essence, import and content

with an offence under s. 409 of the Indian

Penal Code...... In view of the above

pronouncement, the view taken by the learned

Judge of the High Court that the two offences

are one and the same, is wrong, and if that is

so, there can be no objection to a trial and

conviction under s. 409 of the Indian Penal

Code, even if the respondent has been

acquitted of an offence under s. 5(2) of the

Prevention of Corruption Act II of 1947....... The

High Court also relied on Art. 20 of the

45

Page 46 Constitution for the order of acquittal but that

Article cannot apply because the respondent

was not prosecuted after he had already been

tried and acquitted for the same offence in an

earlier trial and, therefore, the well-known

maxim "Nemo debet bis vexari, si constat

curiae quod sit pro una et eadem causa" (No

man shall be twice punished, if it appears to

the court that it is for one and the same cause)

embodied in Art. 20 cannot apply."

45.In the case of T.S. Baliah vs. ITO, AIR 1969 SC 701, the

question that arose for consideration before this Court was

whether the appellant could be simultaneously prosecuted

under Section 177, IPC and for violation of Section 52 of the

Income Tax Act, 1922. Considering the provisions of Section 26

of the General Clauses Act, this Court held as under:

“6. ….A plain reading of the section shows that there

is no bar to the trial or conviction of the offender

under both enactments but there is only a bar to the

punishment of the offender twice for the same

offence. In other words, the section provides that

where an act or omission constitutes an offence

under two enactments, the offender may be

prosecuted and punished under either or both the

enactments but shall not be liable to be punished

twice for the same offence. We accordingly reject the

argument of the appellant on this aspect, of the

case.

7. It was then contended on behalf of the appellant

that the prosecution is illegal as complaint petition

was required to be riled by the Inspecting Assistant

Commissioner under the 1922 Act. In our opinion,

46

Page 47 there is no substance in this argument, Section 53 of

the 1922 Act only requires that a person shall not be

proceeded against for an offence under Section 51 or

Section 52 of the 1922 Act "except at the instance of

the Inspecting Assistant Commissioner". It is not

disputed in the present case that the respondent has

filed complaint petitions on the authority of the

Inspecting Assistant Commissioner. There is no

statutory requirement that the complaint petition

itself must be filed by the Inspecting Assistant

Commissioner. The clause "at his instance" in

Section 53 of the 1922 Act only means "on his

authority" and it is therefore sufficient compliance of

the statutory requirement if the complaint petition is

filed by the respondent on being authorised by the

Inspecting Assistant Commissioner.”

46.In the case of Collector of Customs vs. Vasantraj

Bhagwanji Bhatia, 1988 (3) SCC 467, the question that arose

for consideration before this Court was as to whether a person

prosecuted under the Customs Act, 1962 was also liable to be

prosecuted under the Gold (Control) Act, 1968. In that case,

person was acquitted from the charge of commission of offence

under the Customs Act. Considering the question, whether

acquittal of that person will create a bar for subsequent

prosecution under the Gold (Control) Act, 1968, this Court

observed:

“It is therefore evident that the ingredients required

to be established in respect of the offence under the

47

Page 48 Customs Act are altogether different from the ones

required to be established for an offence under the

Gold (Control) Act. In respect of the former, the

prosecution has to establish that there was a

prohibition against the import into Indian sea waters

of goods which were found to be in the possession of

the offender. On the other hand in respect of the

offence under the Gold (Control) Act, it is required to

be established that the offender was in possession of

primary gold meaning thereby gold of a purity of not

less than 9 carats in any unfinished or semi-finished

form. In regard to the latter offence it is not

necessary to establish that there is any prohibition

against the import of gold into Indian sea waters.

Mere possession of gold of purity not less than 9

carats in any unfinished or semi-finished form would

be an offence under the Gold Control Act. It is

therefore stating the obvious to say that the

ingredients of the two offences are altogether

different. Such being the case the question arises

whether the acquittal for the offences under the

Customs Act which requires the prosecution to

establish altogether different ingredients operates as

a bar to the prosecution of the same person in

connection with the charge of having committed the

offence under the Gold (Control) Act.”

47.In the case of Leo Roy Frey vs. Thomas Dana , AIR 1958

SC 119, the question that arose for consideration before the

Constitution Bench of this Court was as to whether conviction

of a person for an offence under Section 157(8)(c) of the

Customs Act will bar a subsequent trial for conspiracy, this

Court observed that:

48

Page 49 “The proceedings before the Customs authorities

were under s. 167(8) of the Sea Customs Act. Under

s. 186 of that Act, the award of any confiscation,

penalty or increased rate of duty under that Act by

an officer of Customs does not prevent the infliction

of any punishment to which the person affected

thereby is liable under any other law. The offences

with which the petitioners are now charged include

an offence under s. 120B, Indian Penal Code.

Criminal conspiracy is an offence created and made

punishable by the Indian Penal Code. It is not an

offence under the Sea Customs Act. The offence of a

conspiracy to commit a crime is a different offence

from the crime that is the object of the conspiracy

because the conspiracy precedes the commission of

the crime and is complete before the crime is

attempted or completed, equally the crime

attempted or completed does not require the

element of conspiracy as one of its ingredients. They

are, therefore quite separate offences. This is also

the view expressed by the United States Supreme

Court in United States v. Rabinowich (1915) 238 U.S.

78. The offence of criminal conspiracy was not the

subject matter of the proceedings before the

Collector of Customs and therefore it cannot be said

that the petitioners have already been prosecuted

and punished for the "same offence". It is true that

the Collector of Customs has used the words

"punishment" and "conspiracy", but those words

were used in order to bring out that each of the two

petitioners was guilty of the offence under

s. 167(8) of the Sea Customs Act. The petitioners

were not and could never be charged with criminal

conspiracy before the Collector of Customs and

therefore Art. 20(2) cannot be invoked. In this view of

the matter it is not necessary for us, on the present

occasion, to refer to the case of Maqbool Hussain

v. The State of Bombay1953 SCR730 (AIR 1953 SC

325) and to discuss whether the words used in

49

Page 50 Art. 20 do or do not contemplate only proceedings of

the nature of criminal proceedings before a court of

law or a judicial tribunal so ordinarily understood. In

our opinion, Art. 20 has no application to the facts of

the present case. No other points having been urged

before us, these applications must be dismissed.”

48.Similar provision had been made in the Wild Life

(Protection) Act, 1972. Section 55 of the said Act is peri metria

of Section 21 of the MMDR Act. Section 55 of the Wild Life

(Protection) Act, reads as under:

“55. No court shall take congnizance of any offence

against this Act except on the complaint of the Chief

Wild Life Warden or such other officer as the State

Government may authorize in this behalf.”

49.In the case of State of Bihar vs. Murad Ali Khan and

others, (1988) 4 SCC 655, accusation was made against the

persons by alleging that they shot and killed an elephant and

removed ivory tusks of the elephant. On the basis of the

complaint lodged with the Judicial Magistrate, cognizance of

the offence was taken and process was issued. It was at the

same time that the Police registered a case under Sections

447, 429 and 379, IPC read with Sections 54 and 39 of the Wild

50

Page 51 Life (Protection) Act, 1972 and the matter was investigated by

the Police. At this stage, one of the accused persons moved

the High Court under Section 482, Cr.P.C. to quash the order of

the Magistrate to take cognizance of the alleged offence. The

High Court took the view that Section 210, Cr.P.C. is attracted

and that as an investigation by the Police was under progress

in relation to the same offence, the learned Magistrate would

be required to stay the proceedings on the complaint. The

High Court further held that learned Magistrate acted without

jurisdiction in taking cognizance of the offence. The matter

ultimately came to this Court at the instance of State of Bihar.

Holding that Section 210 was not attracted, Their Lordships

held:

“24. We are unable to accept the contention of Shri R.F.

Nariman that the specific allegation in the present case

concerns the specific act of killing of an elephant, and

that such an offence, at all events, falls within the

overlapping areas between of Section 429 IPC on the

one hand and Section 9(1) read with Section 50(1) of

the Act on the other and therefore constitutes the same

offence. Apart from the fact that this argument does not

serve to support the order of the High Court in the

present case, this argument is, even on its theoretical

possibilities, more attractive than sound. The expression

“any act or omission which constitutes any offence

under this Act” in Section 56 of the Act, merely imports

the idea that the same act or omission might constitute

51

Page 52 an offence under another law and could be tried under

such other law or laws also.

xxxxxxxx

26. Broadly speaking, a protection against a second or

multiple punishment for the same offence, technical

complexities aside, includes a protection against re-

prosecution after acquittal, a protection against re-

prosecution after conviction and a protection against

double or multiple punishment for the same offence.

These protections have since received constitutional

guarantee under Article 20(2). But difficulties arise in

the application of the principle in the context of what is

meant by “same offence”. The principle in American law

is stated thus:

“The proliferation of technically different offences

encompassed in a single instance of crime behaviour

has increased the importance of defining the scope

of the offence that controls for purposes of the

double jeopardy guarantee.

Distinct statutory provisions will be treated as

involving separate offences for double jeopardy

purposes only if ‘each provision requires proof of an

additional fact which the other does not’

(Blockburger v. United States). Where the same

evidence suffices to prove both crimes, they are the

same for double jeopardy purposes, and the clause

forbids successive trials and cumulative punishments

for the two crimes. The offences must be joined in

one indictment and tried together unless the

defendant requests that they be tried separately.

(Jeffers v.United States,[1977]432 US 137)”

27. The expression “the same offence”,

“substantially the same offence” “in effect the same

offence” or “practically the same”, have not done much

to lessen the difficulty in applying the tests to identify

the legal common denominators of “same offence”.

Friedland in Double Jeopardy (Oxford 1969) says at p.

108:

“The trouble with this approach is that it is vague

and hazy and conceals the thought processes of the

court. Such an inexact test must depend upon the

individual impressions of the judges and can give

52

Page 53 little guidance for future decisions. A more serious

consequence is the fact that a decision in one case

that two offences are ‘substantially the same’ may

compel the same result in another case involving the

same two offences where the circumstances may be

such that a second prosecution should be

permissible....”

28. In order that the prohibition is attracted the

same act must constitute an offence under more than

one Act. If there are two distinct and separate offences

with different ingredients under two different

enactments, a double punishment is not barred. In Leo

Roy Frey v. Superintendent, District Jail, the question

arose whether a crime and the offence of conspiracy to

commit it are different offences. This Court said:

“The offence of conspiracy to commit a crime is a

different offence from the crime that is the object of

the conspiracy because the conspiracy precedes the

commission of the crime and is complete before the

crime is attempted or completed, equally the crime

attempted or completed does not require the

element of conspiracy as one of its ingredients. They

are, therefore, quite separate offences.”

50.It is well known principle that the rule against double

jeopardy is based on a maxim nemo debet bis vexari pro una

et eadem causa, which means no man shall be put in jeopardy

twice for one and the same offence. Article 20 of the

Constitution provides that no person shall be prosecuted or

punished for the offence more than once. However, it is also

settled that a subsequent trial or a prosecution and punishment

has no bar if the ingredients of the two offences are distinct.

53

Page 54 51.In the case of State of Rajasthan vs. Hat Singh , (2003)

2 SCC 152, a person was prosecuted for violation of prohibitory

order issued by the Collector under Sections 5 and 6 of the

Rajasthan Sati (Prevention) Ordinance, 1987. Against the said

Ordinance, mass rally took place which led to the registration

of FIRs against various persons for violation of prohibitory order

under Sections 5 and 6 of the Act. Persons, who were arrested,

moved a petition challenging the vires of the Ordinance and

the Act. The High Court upholding the vires of the

Ordinance/Act held that the provisions of Sections 5 and 6

overlapped each other and that a person could be found guilty

only of the offence of contravening a prohibitory order under

either Section 6(1) or Section 6(2) of the Act. This Court

discussing the doctrine of double jeopardy and Section 26 of

the General Clauses Act held as under:

“We are, therefore, of the opinion that in a given

case, same set of facts may give rise to an offence

punishable under Section 5 and Section 6(3) both.

There is nothing unconstitutional or illegal about it.

So also an act which is alleged to be an offence

under Section 6(3) of the Act and if for any reason

prosecution under Section 6(3) does not end in

54

Page 55 conviction, if the ingredients of offence under Section

5 are made out, may still be liable to be punished

under Section 5 of the Act. We, therefore, do not

agree with the High Court to the extent to which it

has been held that once a prohibitory order under

sub-section (1) or (2) has been issued, then a

criminal act done after the promulgation of the

prohibitory order can be punished only under Section

6(3) and in spite of prosecution under Section 6(3)

failing, on the same set of facts the person

proceeded against cannot be held punishable under

Section 5 of the Act although the ingredients of

Section 5 are fully made out.

52.Learned counsel appearing for the appellant put heavy

reliance on the decision of this Court in the case of Avtar

Singh vs. State of Punjab , AIR 1965 SC 666, in which the

appellant was prosecuted and convicted for theft of electrical

energy under Section 39 of the Indian Electricity Act, 1910.

The said conviction was challenged on the ground that as his

prosecution was for an offence against the Act it was

incompetent as it had not been instituted at the instance of any

person mentioned in Section 50 of the Act. Section 39 of the

Act provides that if a person dishonestly abstracts, consumes

or uses any energy shall be deemed to have committed theft

within the meaning of the Indian Penal Code. It is not in dispute

55

Page 56 that the appellant had committed the theft mentioned in this

section. However, Section 50 of the Act provides that no

prosecution shall be instituted against any person for any

offence against the Act except at the instance of the

Government or an Electrical Inspector, or of a person aggrieved

by the same. This Court allowing the appeal held as under:

“We may now refer to certain general considerations

also leading to the view which we have taken. First,

we find that the heading which governs Sections 39

to 50 of the Act is "Criminal Offences and Procedure".

Obviously, therefore, the legislature thought that

s. 39 created an offence. We have also said that

Sections 48 and 49 indicate that in the legislature's

contemplation s. 39 provided for a punishment. That

section must, therefore, also have been intended to

create an offence to which the punishment was to

attach. The word 'offence' is not defined in the Act.

Since for the reasons earlier mentioned, in the

legislature's view s. 39 created an offence, it has to

be held that that was one of the offences to which

s. 50 was intended to apply. Lastly, it seems to us

that the object of s. 50 is to prevent prosecution for

offences against the Act being instituted by anyone

who chooses to do so because the offences can be

proved by men possessing special qualifications.

That is why it is left only to the authorities concerned

with the offence and the persons aggrieved by it to

initiate the prosecution. There is no dispute that

s. 50 would apply to the offences mentioned in

Sections40 to 47. Now it seems to us that if we are

right in our view about the object of s. 50, in principle

it would be impossible to make any distinction

between s. 39 and any of the sections from s. 40 to

47. Thus s. 40 makes it an offence to maliciously

cause energy to be wasted. If in respect of waste of

energy s. 50 is to have application, there is no reason

56

Page 57 why it should not have been intended to apply to

dishonest abstraction of energy made a theft by

s. 39. For all these reasons we think that the present

is a case of an offence against the Act and the

prosecution in respect of that offence would be

incompetent unless it was instituted at the instance

of a person named in s. 50.”

53.With due respect, the ratio decided by this Court can be

severally distinguished for the reason that the complaint or

allegation of dishonest abstraction of electricity as

contemplated under Section 39 making the act as a theft within

the meaning of the Indian Penal Code and be made and proved

by person possessing special qualification. In other words,

whether there is a dishonest abstraction of electrical energy, as

mentioned in Section 39 of the Act, can be ascertained only by

a person/Engineers having special qualification in that field.

54.Last but not least, in addition to these decisions, in the

case of Institute of Chartered Accountants of India vs.

Vimal Kumar Surana and another , (2011) 1 SCC 534, this

Court has very elaborately dealt with similar provision under

the Chartered Accountants Act, 1949 (in short, ‘C.A. Act’). In

57

Page 58 that case, the respondent, who passed the Chartered

Accountant examination but was not a member of the

appellant’s Institute of Chartered Accounts, allegedly

represented before the Income Tax Department and the

authorities constituted under the Madhya Pradesh Trade Tax

Act on the basis of power of attorney or as legal

representative and submitted documents such as audit

reports and certificates required to be issued by the Chartered

Accountants by preparing forged seals and thereby

impersonated himself as Chartered Accountant. He was

accordingly prosecuted and charge was framed against him

under Sections 419, 468, 471 and 472, IPC. The respondent

challenged the order by filing revision under Section 397,

Cr.P.C. The Additional Sessions Judge set aside the order of

the Magistrate and remanded the case to the trial court with a

direction to decide whether there are sufficient grounds for

framing charges under Sections 419, 468, 471 and 473, IPC

read with Sections 24 and 26 of the C.A. Act. After remand,

the trial court passed an order holding that there was no basis

58

Page 59 for framing any charge against respondent under the IPC.

The Magistrate further held that cognizance of offences under

Sections 24 and 26 of the C.A. Act cannot be taken because

no complaint had been filed by or under the order of the

Council before the Magistrate. The revision filed against the

orders of the Magistrate was dismissed. The High Court

referring Sections 2, 4, 5 and Section 195(1), Cr.P.C. held that

in the absence of a complaint the Magistrate was not

competent to frame charges against the respondent. The

High Court further held that in view of the special mechanism

contained in the C.A. Act for prosecution of a person violating

Sections 24, 24A and 26 of the Act, he cannot be prosecuted

under the IPC. The matter finally came to this Court. Allowing

the appeal, this Court considered catena of decisions and held

as under:

“24. Such an unintended consequence can be and

deserves to be avoided in interpreting Sections 24-A,

25 and 26 keeping in view the settled law that if

there are two possible constructions of a statute,

then the one which leads to anomaly or absurdity

and makes the statute vulnerable to the attack of

unconstitutionality should be avoided in preference

to the other which makes it rational and immune

from the charge of unconstitutionality. That apart,

59

Page 60 the court cannot interpret the provisions of the Act in

a manner which will deprive the victim of the

offences defined in Sections 416, 463, 464, 468 and

471 of his right to prosecute the wrongdoer by filing

the first information report or complaint under the

relevant provisions of CrPC.”

xxxxxxxxxxxx

42. The submission of Shri Gupta that the respondent

cannot be prosecuted for the offences defined under

IPC because no complaint had been filed against him

by the court concerned or authority as per the

requirement of Section 195(1)( b)(ii) CrPC sounds

attractive but lacks merit. The prohibition contained

in Section 195 CrPC against taking of cognizance by

the court except on a complaint in writing made by

the court concerned before which the document is

produced or given in a proceeding is not attracted in

the case like the present one because the officers of

the Income Tax Department and the authorities

constituted under the Madhya Pradesh Trade Tax

Act, 1995 before whom the respondent is alleged to

have acted on the basis of power of attorney or as

legal representative or produced audit report do not

fall within the ambit of the term “court” as defined in

Section 195(3) CrPC. Such officer/authorities were

neither discharging the functions of a civil, revenue

or criminal court nor could they be treated as

tribunal constituted by or under the Central or State

Act, which is declared to be a court for the purpose

of Section 195.”

55.There cannot be any two opinions that natural resources

are the assets of the nation and its citizens. It is the obligation

of all concerned, including the Central and the State

Governments, to conserve and not waste such valuable

resources. Article 48-A of the Constitution requires that the

60

Page 61 State shall endeavour to protect and improve the environment

and safeguard the forests and wild life of the country. Similarly,

Article 51-A enjoins a duty upon every citizen to protect and

improve the natural environment including forests, lakes, rivers

and wild life, and to have compassion for all the living

creatures. In view of the Constitutional provisions, the Doctrine

of Public Trust has become the law of the land. The said

doctrine rests on the principle that certain resources like air,

sea, waters and forests are of such great importance to the

people as a whole that it would be highly unjustifiable to make

them a subject of private ownership.

56.Reading the provisions of the Act minutely and carefully,

prima facie we are of the view that there is no complete and

absolute bar in prosecuting persons under the Indian Penal

Code where the offences committed by persons are penal and

cognizable offence.

57. Sub-section (1A) of Section 4 of the MMDR Act puts a

restriction in transporting and storing any mineral otherwise

61

Page 62 than in accordance with the provisions of the Act and the rules

made thereunder. In other words no person will do mining

activity without a valid lease or license. Section 21 is a penal

provision according to which if a person contravenes the

provisions of Sub-section (1A) of Section 4 shall be prosecuted

and punished in the manner and procedure provided in the Act.

Sub-section (6) has been inserted in Section 4 by amendment

making the offence cognizable notwithstanding anything

contained in the Code of Criminal Procedure 1973.

58. Section 22 of the Act puts a restriction on the court to

take cognizance of any offence punishable under the Act or any

rule made thereunder except upon a complaint made by a

person authorized in this behalf.

59.It is very important to note that Section 21 does not begin

with a non-obstante clause. Instead of the words

“notwithstanding anything contained in any law for the time

being in force no court shall take cognizance…..”, the Section

62

Page 63 begins with the words “no court shall take cognizance of any

offence.”

60.It is well known that a non-obstante clause is a legislative

device which is usually employed to give overriding effect to

certain provisions over some contrary provisions that may be

found either in the same enactment or some other enactment,

that is to say, to avoid the operation and effect of all contrary

provisions.

61. In Liverpool Borough vs. Turner Lord Campbell

(1861), 30 L.J. Ch.379, C.J. at page 380 said :-

“No universal rule can be laid down for the

construction of statutes, as to whether mandatory

enactments shall be considered directory only or

obligatory, with an implied nullification for

disobedience. It is the duty of courts to try to get at

the real intention of the legislature by carefully

attending to the whole scope of the statute to be

construed.”

62.In Pratap Singh vs. Shri Krishna Gupta , AIR 1956 SC

140 at page 141, the Supreme Court while interpreting the

mandatory and directory provisions of statute observed as

under:-

63

Page 64 “We do not think that is right and we deprecate

this tendency towards technicality; it is the

substance that counts and must take precedence

over mere form.

Some rules are vital and go to the root of the matter;

they cannot be broken; others are only directory and

a breach of them can be overlooked provided there is

substantial compliance with the rules read as whole

and provided no prejudice ensues; and when the

legislature does not itself state which Judges must

determine the matter and exercising a nice

discrimination, sort out one class from the other

along broad based, commonsense lines.”

63.The question is whether a statute is mandatory or

directory depends upon the intent of the Legislature and not

upon the language in which the intent is clothed. The meaning

and intention of the legislature must govern, and these are to

be ascertained, not only from the phraseology of the provision,

but also by considering its nature, its design, and the

consequences which would follow from construing it the one

way or the other.

64. In Maxell on the Interpretation of Statutes 10

th

Edn. at

page 381, it is stated thus :-

“On the other hand, where the prescriptions of

a statute relate to the performance of a public duty

and where the invalidation of acts done in neglect of

them would work serious general inconvenience or

injustice to persons who have no control over those

entrusted with the duty without promoting the

essential aims of the legislature, such prescriptions

64

Page 65 seem to be generally understood as mere

instructions for the guidance and government of

those on whom the duty is imposed, or, in other

words, as directory only. The neglect of them may

be penal, indeed, but it does not affect the validity of

the act done in disregard of them.”

65.In the case of State of U.P. vs. Babu Ram Upadhya ,

AIR 1961 SC 751, while interpreting a particular statute as

mandatory or directory this Court observed :-

“When a statute uses the word ‘shall’, ‘prima

facie’, it is mandatory, but the court may ascertain

the real intention of the legislature by carefully

attending to the whole scope of the statute. For

ascertaining the real intention of the legislature the

court may consider, inter alia, the nature and the

design of the statute, and the consequences which

would follow from construing it the one way or the

other, the impact of other provisions whereby the

necessity of complying with the provisions in

question is avoided, the circumstance, namely, that

the statute provides for a contingency of the non-

compliance with the provisions, the fact that the non-

compliance with the provisions is or is not visited by

some penalty, the serious or trivial consequences

that flow therefrom, and, above all, whether the

object of the legislation will be defeated or

furthered.”

66.Considering the principles of interpretation and the

wordings used in Section 22, in our considered opinion, the

provision is not a complete and absolute bar for taking action by

65

Page 66 the police for illegal and dishonestly committing theft of

minerals including sand from the river bed.

67.The Court shall take judicial notice of the fact that over the

years rivers in India have been affected by the alarming rate of

unrestricted sand mining which is damaging the eco-system of

the rivers and safety of bridges. It also weakens river beds, fish

breeding and destroys the natural habitat of many organisms.

If these illegal activities are not stopped by the State and the

police authorities of the State, it will cause serious

repercussions as mentioned hereinabove. It will not only

change the river hydrology but also will deplete the ground

water levels.

68.There cannot be any dispute with regard to restrictions

imposed under the MMDR Act and remedy provided therein. In

any case, where there is a mining activity by any person in

contravention of the provisions of Section 4 and other sections

of the Act, the officer empowered and authorized under the

Act shall exercise all the powers including making a complaint

66

Page 67 before the jurisdictional magistrate. It is also not in dispute

that the Magistrate shall in such cases take cognizance on the

basis of the complaint filed before it by a duly authorized

officer. In case of breach and violation of Section 4 and other

provisions of the Act, the police officer cannot insist Magistrate

for taking cognizance under the Act on the basis of the record

submitted by the police alleging contravention of the said Act.

In other words, the prohibition contained in Section 22 of the

Act against prosecution of a person except on a complaint

made by the officer is attracted only when such person sought

to be prosecuted for contravention of Section 4 of the Act and

not for any act or omission which constitute an offence under

Indian Penal Code.

69.However, there may be situation where a person without

any lease or licence or any authority enters into river and

extracts sands, gravels and other minerals and remove or

transport those minerals in a clandestine manner with an

intent to remove dishonestly those minerals from the

possession of the State, is laible to be punished for

67

Page 68 committing such offence under Sections 378 and 379 of the

Indian Penal Code.

70.From a close reading of the provisions of MMDR Act and

the offence defined under Section 378, IPC, it is manifest

that the ingredients constituting the offence are different. The

contravention of terms and conditions of mining lease or doing

mining activity in violation of Section 4 of the Act is an offence

punishable under Section 21 of the MMDR Act, whereas

dishonestly removing sand, gravels and other minerals from

the river, which is the property of the State, out of State’s

possession without the consent, constitute an offence of theft.

71.Hence, merely because initiation of proceeding for

commission of an offence under the MMDR Act on the basis of

complaint cannot and shall not debar the police from taking

action against persons for committing theft of sand and

minerals in the manner mentioned above by exercising power

under the Code of Criminal Procedure and submit a report

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Page 69 before the Magistrate for taking cognizance against such

person. In other words, in a case where there is a theft of

sand and gravels from the Government land, the police can

register a case, investigate the same and submit a final report

under Section 173, Cr.P.C. before a Magistrate having

jurisdiction for the purpose of taking cognizance as provided in

Section 190 (1)(d) of the Code of Criminal Procedure.

72.After giving our thoughtful consideration in the matter, in

the light of relevant provisions of the Act vis-à-vis the Code of

Criminal Procedure and the Indian Penal Code, we are of the

definite opinion that the ingredients constituting the offence

under the MMDR Act and the ingredients of dishonestly

removing sand and gravel from the river beds without consent,

which is the property of the State, is a distinct offence under the

IPC. Hence, for the commission of offence under Section 378

Cr.P.C., on receipt of the police report, the Magistrate having

jurisdiction can take cognizance of the said offence without

awaiting the receipt of complaint that may be filed by the

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Page 70 authorized officer for taking cognizance in respect of violation of

various provisions of the MMRD Act. Consequently the contrary

view taken by the different High Courts cannot be sustained in

law and, therefore, overruled. Consequently, these criminal

appeals are disposed of with a direction to the concerned

Magistrates to proceed accordingly.

…………………………… .J.

[ M.Y. Eqbal ]

…………………………… .J.

[Pinaki Chandra Ghose]

New Delhi

September 04, 2014

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