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SUPREME COURT OF INDIA
S. ABDUL NAZEER, SANJIV KHANNA, JJ.
Kanwar Pal Singh – Appellant
Versus
The State of Uttar Pradesh And Another – Respondent
Criminal Appeal No.1920 of 2019 Arising Out of S.L.P.(Criminal) No. 10707 of 2019
Decided On : 18-12-2019
Mines and Minerals (Development and Regulation) Act, 1957 – Sections 4 and 21 read with Section 22 – General Clauses Act, 1897 – Section 26 – Criminal Procedure Code, 1973 – Section 482 – Indian Penal Code, 1860 – Section 379 – Uttar Pradesh Minor Mineral (Concession) Rules, 1963 – Rules 3, 57 and 7 – Prevention of Damage to Public Property Act, 1984 – Sections 3 and 4 – Theft of minerals and damage to public property – Cognizance of offence – Investigation of offences is within domain of police and power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit power must be exercised as per statutory provisions and for legitimate purposes – Courts would interfere only when while examining case they find that police officer in exercise of investigatory powers has breached statutory provisions and put personal liberty and/or property of a citizen in jeopardy by illegal and improper use of powers or when investigation by Police is not found to be bona fide or when investigation is tainted with animosity – Section 26 of General Clauses Act permits prosecution for different offences but bars prosecution and punishment twice for same offence under two or more enactments – Offence under Section 21 read with Section 4 of Mines Regulation Act and Section 379 of IPC are different and distinct – There is no bar on Court from taking cognizance of offence under Section 379 of IPC – Order of High Court refusing to set aside prosecution and cognizance of offence taken by Magistrate under Section 379 of IPC and Sections 3 and 4 of Prevention of Damage to Public Property Act, upheld – However, prosecution and cognizance under Section 21 read with Section 4 of Mines Regulation Act will not be valid and justified in absence of authorisation. (Paras 8, 10, 11 and 12)
Facts of the case:
Appellant, impugns the order dated 22nd July 2019 whereby High Court of Judicature at Allahabad has dismissed his petition under Section 482 of Code of Criminal Procedure, 1973 for quashing criminal prosecution under Section 379 of the Indian Penal Code, 1860, Rules 3, 57 and 7 of Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh. The appellant had also challenged, without success before the High Court, the order dated 8th February 2019 passed by Chief Judicial Magistrate taking cognizance and summoning the appellant for trial.
Findings of Court:
Decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities.
Result : Appeal Partly allowed.
Key Points: - Investigation and cognizance of cognizable offences by police are generally permissible within statutory bounds; interference occurs only for bona fide, improper use of power, or violation of statutory provisions (!) (!) . - Offences under MMDR Act (Section 21 read with Section 4) are distinct from offences under IPC (Section 379/378); they are not the same offence, affecting the applicability of Section 26 of the General Clauses Act (!) (!) (!) . - Section 22 of MMDR Act requires cognizance upon a written complaint by an authorised officer; however, that barrier applies specifically to contravention of Section 4, not to theft/other offences under IPC; police may proceed with IPC offences independently if appropriate (!) (!) . - The Court upheld prosecution and cognizance under IPC and PDPA Act (Sections 3 and 4) while clarifying that cognizance under MMDR Act Section 21/4 requires authorisation; trial court to decide charges independently (!) . - The decision reiterates that decisions in prior cases cannot be blindly applied; each case depends on its factual and statutory context (!) . - The judgment emphasizes that there can be prosecution for both offences under different enactments provided they are distinct offences and properly authorized; multiplicity is governed by General Clauses Act Section 26 (!) (!) .
JUDGMENT :
SANJIV KHANNA, J.
1. Leave granted.
2. Kanwar Pal Singh, the appellant, impugns the order dated 22nd July 2019 whereby the High Court of Judicature at Allahabad has dismissed his petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for quashing criminal prosecution under Section 379 of the Indian Penal Code, 1860 (‘IPC’ for short), Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (‘Mines Regulation Act’ for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh. The appellant had also challenged, without success before the High Court, the order dated 8th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the appellant for trial.
3. In brief, the facts of the case are that on the basis of a complaint filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur, FIR No. 0289 dated 15th November 2018 was registered at Police Station, Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the Sub-Divisional Magistrate, Sadar. The appellant is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which was granted rights to excavate sand vide mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring 12.35 acre in Village Nandni. However, it is alleged that the appellant was mining sand outside the permitted area in Village Babhni numbered as 534/2 where he had illegally excavated a pit 50 feet long, 50 feet wide and 2 meter deep. Consequently, the District Magistrate had ordered for immediate registration of the FIR under the aforesaid provisions.
4. Though a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during the course of arguments before us restricted his submissions to the violation of Section 22 of the Mines Regulation Act and the legal effect thereof. Referring to the contents of the FIR, it is submitted that the appellant has been wrongly charge-sheeted by the police for the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of the Mines Regulation Act. It is highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section 22 no court can take cognizance of the offences under the Mines Regulation Act, except on a complaint in writing by a person authorised by the Central or State Government. The State police not being authorised, could not have filed the charge-sheet/complaint. The contention predicated on Section 22 of the Mines Regulation Act is made by relying upon the judgment of this Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation, (2009) 7 SCC 526. In the written submissions filed by the appellant, a relatively new plea and contention has been raised by relying upon the judgments of this Court in Belsund Sugar Company Limited v. State of Bihar, (1999) 9 SCC 620 Sharat Babu Digumarti v. Government of NCT of Delhi, (2017) 2 SCC 18 and Suresh Nanda v. Central Bureau of Investigation, (2008) 3 SCC 674 to urge that the Mines Regulation Act being a special statute, prosecution for an offence under Section 379 of the IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining in Sanjay (supra) was registered suo moto due to non-production of any document to establish mining rights and therefore, the ratio in that case would apply only to cases of illegal mining where th
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