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SUPREME COURT OF INDIA
ASHOK BHUSHAN, M.R. SHAH, JJ.
Jayant Etc. – Appellants
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal Nos. 824-825 OF 2020 (Arising from SLP (Criminal) Nos. 2640-2641/2020)
State of Madhya Pradesh – Appellant
Versus
Jayant – Respondent
WITH CRIMINAL APPEAL NO.826 OF 2020 (Arising from SLP (Criminal) No. 4549/2020)
Decided On : 03-12-2020
(A) Criminal Procedure Code, 1973 – Sections 156(3), 173 and 190 – Indian Penal Code, 1860 – Sections 379 and 414 – Mines & Minerals (Development & Regulation) Act, 1957 – Sections 4/21, 22 and 23A – M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 – Rule 18 – Illegal sand mining – Compounding of offence – Prohibition contained in Section 22 of MMDR Act against prosecution of a person except on a written complaint made by authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of MMDR Act and not for any act or omission which constitutes an offence under Penal Code – Bar contained in Section 22 would be attracted when Magistrate takes cognizance – It cannot be said that there is a bar against registration of a criminal case or investigation by police agency or submission of a report by police on completion of investigation, as contemplated by Section 173, Cr.P.C. – High Court has not committed any error in not quashing order passed by Magistrate and not quashing criminal proceedings for offences under Sections 379 and 414 – When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., he has not taken cognizance of offence and it is a pre-cognizance stage and cannot be equated with post-cognizance stage – Filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint – When an order is passed by Magistrate for investigation to be made by police under Section 156(3) of Code, which Magistrate did in instant case, when such an order is made police is obliged to investigate case and submit a report under Section 173(2) of Code – Violators cannot be permitted to go scot free on payment of penalty only – There must be some stringent provisions which may have deterrent effect so that violators may think twice before committing such offences and before causing damage to earth and nature – It is duty cast upon State to restore ecological imbalance and to stop damages being caused to nature – Sand/mines is a public property and State is custodian of said public property and State should be more sensitive to protect environment and ecological balance and to protect public property State should always be in favour of taking very stern action against violators who are creating serious ecological imbalance and causing damages to nature in any form. (Paras 7.4, 8.1, 10, 10.2, 10.3 and 11)
(B) Mines & Minerals (Development & Regulation) Act, 1957 – Sections 4/21, 22 and 23A – Criminal Procedure Code, 1973 – Section 156(3) – Illegal sand mining – Compounding of offence – Magistrate can in exercise of powers under Section 156(3) of Code order/direct concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for offences under MMDR Act and Rules made thereunder and at this stage bar under Section 22 of MMDR Act shall not be attracted – Bar under Section 22 of MMDR Act shall be attracted only when Magistrate takes cognizance of offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for offences under MMDR Act and Rules made thereunder – For commission of offence under IPC, on receipt of police report, Magistrate having jurisdiction can take cognizance of said offence without awaiting receipt of complaint that may be filed by authorised officer for taking cognizance in respect of violation of various provisions of MMDR Act and Rules made thereunder – In respect of violation of various provisions of MMDR Act and Rules made thereunder, when Magistrate passes an order under Section 156(3) of Code and directs concerned Incharge/SHO of police station to register/lodge crime case/FIR in respect of violation of various provisions of Act and Rules made thereunder and thereafter after investigation concerned Incharge of police station/investigating officer submits a report, same can be sent to concerned Magistrate as well as to concerned authorised officer as mentioned in Section 22 of MMDR Act and thereafter concerned authorised officer may file complaint before Magistrate along with report submitted by concerned investigating officer and thereafter it will be open for Magistrate to take cognizance after following due procedure, issue process/summons in respect of violations of various provisions of MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by Magistrate – In a case where violator is permitted to compound offences on payment of penalty as per sub-section (1) of Section 23A, considering sub-section (2) of Section 23A of MMDR Act, there shall not be any proceedings or further proceedings against offender in respect of offences punishable under MMDR Act or any rule made thereunder so compounded – However, bar under sub-section (2) of Section 23A shall not affect any proceedings for offences under IPC, such as, Sections 379 and 414 IPC and same shall be proceeded with further. (Para 13)
Facts of the case:
By the impugned common judgment and order, High Court has dismissed applications filed under Section 482 Cr.P.C. to quash respective FIRs for the offences under Sections 379 and 414, IPC, Sections 4/21 of the Mines & Minerals (Development & Regulation) Act, 1957 and under Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006.
Findings of Court:
It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. Excessive in-stream sand and gravel mining from river beds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry.
Result : Appeals Partly allowed.
JUDGMENT :
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 11.05.2020 passed by the High Court of Madhya Pradesh, Bench at Indore in M.Cr.C No. 49338/2019 and M.Cr.C. No. 49972/2019, the original petitioner as well as the State of Madhya Pradesh have preferred the present appeals.
By the impugned common judgment and order, the High Court has dismissed the aforesaid applications filed under Section 482 Cr.P.C. to quash the respective FIRs for the offences under Sections 379 and 414, IPC, Sections 4/21 of the Mines & Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as the ‘MMDR Act’) and under Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 (hereinafter referred to as the ‘2006 Rules’).
3. The facts in nutshell are as under:
On a surprise inspection, the respective Mining Inspectors checked the tractor/trolleys of the private appellants along with the minor mineral (sand/storage/yellow soil etc.) loaded in them. They handed over the tractor/trolleys to the concerned police stations to keep them in safe custody. Finding the private appellants indulged in illegal mining/transportation of minor mineral, the mining Inspectors prepared their respective cases under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter referred to as the ‘1996 Rules’) and submitted them before the Mining Officers with a proposal of compounding the same for the amount calculated according to the concerned 1996 Rules. The concerned Mining Officers submitted those cases before the Collector, who approved the proposal. The violators accepted the decision and deposited the amounts determined by the Collector for compounding the cases. Their tractor/trolleys along with the minerals, which were illegally excavated/transported, were released.
3.1 That after some time, a news was published in a daily newspaper – Bhaskar on 8.9.2019 with respect to illegal excavation/transportation of mineral sand from Chambal, Shivna and Retam and other Tributary rivers flow from District Mandsuar and in surrounding places. It was revealed that due to illegal transportation of the minerals and without payment of royalty, revenue loss is occurring. It was reported that illegal mining, storage and transportation of mineral sand was being carried out at large scale. Similar kind of information was also subsequently published on 3.10.2019 in the daily newspaper – Bhaskar in Mandsuar edition. It was also reported that despite the offences under Sections 379 and 414, IPC and the offences under the MMDR Act and the 2006 Rules were found attracted, necessary legal action has not been taken and the violators were permitted to go on compounding the offence under Rule 53 of the 1996 Rules. The learned Judicial Magistrate, First Class, Mandsuar took note of the aforesaid information and having taken note of the decision of this Court in the case of State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 taking the view that offences under the IPC and offences under the MMDR Act are distinct and different and it is permissible to lodge/initiate the proceedings for the offences under the IPC as well as under the MMDR Act, the learned Magistrate in exercise of powers conferred under Section 156(3), Cr.P.C. (suo motu) directed to register criminal case under Section 156(3) Cr.P.C. for initiation of investigation and for submitting of report after due investigation is conducted. The learned Magistrate also directed the concerned Incharge/ SHOs of the concerned police stations to register the first information report and a copy of the first information report be sent to the learned Magistrate as per the provisions of Section 157, Cr.P.C.
3.2 That pursuant to the order passed by the learned Magistrate, the Incharge/ SHOs of the concerned police stati
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