Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Mad) 106

Madurai Bench of Madras High Court
M. JAICHANDREN & S. NAGAMUTHU, JJ.

Sengol & Others
Versus
State Rep. By the Inspector of Police, R.S. Mangalam Police Station & Others
Crl OP(MD) Nos.13173 of 2011, 12992 of 2011, 14409 of 2011 & M.P.Nos.1 of 2011 in Crl.O.P.Nos.12992 & 14409 of 2011
Decided On : 05-01-2012

Advocates Appeared:
For the Petitioners:V.K. Saravanan, R. Shanmugasundaram, Senior Counsel for S. Ravi, K. Anandan, Advocates.
For the Respondents:K. Chellapandian, Additional Advocate General Assisted by A. Ramar, Additional Public Prosecutor.

Ratios
a. For an offence of lifting sand from the watercourse without authorization, FIR could be registered by the police for the offences under Sec.379 of Indian Penal Code, 1860 and also Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957.
b. To prosecute the offender for an offence under Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957, only a complaint had to be filed by an authorized officer.
c. For an offence of lifting sand from the watercourse without authorization, final report could be filed by the police against the accused in respect of offence under Sec.379 IPC.
d. For an offence of lifting sand from the watercourse without authorization, the accused could be simultaneously prosecuted both under the provisions of Sec.379 IPC and Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957.

Headnote:(A)Constitution of India-Art.20(2)-Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 190-Mines and Minerals (Development and Regulation) Act, 1957(67 of 1957)-Sec.21, 22-Indian Penal Code, 1860(45 of 1860)-Sec.379-General Clauses Act, 1897 (10 of 1897)-Sec.26-Sand-Theft-Mining-Prosecution-Police-FIR-Registration-Competency-Quash-When the police registered a case against the petitioners for an offence under Sec.379 IPC and also under Sec.21 of the Mines and Minerals (Development and Regulation0 Act, 1957 for their act of committing theft of sand from the water courses, they sought for quashing FIR by relying upon few earlier judgments of the High Court-As the single judge entertained doubt about the correctness of those judgments, the matter was referred to a larger bench-Petitioners contended that taking sand from the water course without permit would be a specific offence under the Act of 1957 and FIR could not be registered for an offence under IPC and in view of prohibition under Sec.22 of the Act of 1957, FIR registered by the police were to be quashed-State contended that there could not be any bar for registration of FIR as both offences were cognizable and the ingredients in both offences were different, in view of Sec.22 of the Act of 1957, prosecution under that Act could be only by a private complaint and for an offence under IPC, final report could be filed by the police-Held, as both offences were cognizable and the ingredients in those offences were different, FIR could be registered by the police for offences under both Acts-In view of the specific provision in Sec.22 of the Act of 1957, to prosecute the offender under that Act, only a complaint had to be filed-In respect of offence under Sec.379 IPC, final report could be filed by the police-Prosecution under both provisions could be initiated simultaneously as the ingredients in both those provisions were different from each other-Stands of the petitioners seeking quashing FIR were turned down and the earlier judgments of the single judges relied on by the petitioners were overruled-Reference was answered accordingly.
        (B)Constitution of India-Art.20(2)-Code of Criminal Procedure, 1973(2 of 1974)-Sec.154, 190-Mines and Minerals (Development and Regulation) Act, 1957(67 of 1957)-Sec.21, 22-Indian Penal Code, 1860(45 of 1860)-Sec.379-General Clauses Act, 1897 (10 of 1897)-Sec.26-Sand-Theft-Mining-Prosecution-Police-FIR-Registration-Competency-Quash -For an offence of lifting sand from the watercourse without authorization, FIR could be registered by the police for the offences under Sec.379 of Indian Penal Code, 1860 and also Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957-To prosecute the offender for an offence under Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957, only a complaint had to be filed by an authorized officer-For an offence of lifting sand from the watercourse without authorization, final report could be filed by the police against the accused in respect of offence under Sec.379 IPC, - For an offence of lifting sand from the watercourse without authorization, the accused could be simultaneously prosecuted both under both provisions of Sec.379 IPC and Sec.21 of the Mines and Minerals (Development and Regulation) Act, 1957.
        In view of the foregoing discussions, we answer the questions referred to us as follows:-
        (i) Since, the offences under the Indian Penal Code involved in the cases before us and an offence under Section 21 of the Mines and Minerals [Development and Regulation] Act, 1957 are not the same offences in terms of Article 20(2) of the Constitution of India, the provisions of the Mines and Minerals [Development and Regulation] Act will not exclude the provisions of IPC. Therefore, in respect of sand theft, it will be lawful for the police to register a case as provided in Section 154 Cr.P.C., under Section 379 and other relevant provisions of IPC, investigate the same as per the provisions of the Code of Criminal Procedure and to lay a final report under Section 173 of the Code of Criminal Procedure, upon which it will be well within the competence of the jurisdictional Magistrate to take cognizance. Therefore, such an FIR, where case has been registered only under the provisions of the Indian Penal Code, shall not be liable to be quashed.
        (ii) If an act of the accused constitutes offences under Indian Penal Code as well as the provisions of the Mines and Minerals [Development and Regulation] Act, the registration of a case both under the provisions of Indian Penal Code and the Mines and Minerals [Development and Regulation] Act is not illegal and the police may proceed with the investigation. However, the police shall file a police report only in respect of the offences punishable under the Indian Penal Code and in respect of the offences punishable under the Mines and Minerals [Development and Regulation] Act, he may file a separate complaint, provided he has been authorised under Section 22 of the said Act.
        (iii) In any event, if the police officer, files a final report in respect of offences under IPC as well as under Section 21 of the Mines and Minerals [Development and Regulation] Act , the Magistrate may take cognizance of the offences under IPC alone and proceed with the trial.
        (iv) In respect of offences under the Mines and Minerals [Development and Regulation] Act , the court shall take cognizance only on a complaint filed by a person authorised in that behalf by the Central Government or State Government and not on a police report.
        (v) In the State of Tamil Nadu, so long as the notification issued under G.O.Ms.No.114, Industries (MMC.I) Department, dated 18.09.2006 authorising the Inspectors of Police to file complaints under Section 22 of the Mines and Minerals Act, is in force , on completing the investigation in respect of the offence under section 21 of the Mines and Minerals Act, it will be lawful for the Inspector of Police concerned, as an authorised person, to file a complaint under Section 22 of the Mines and Minerals Act before the jurisdictional Magistrate, upon which the Magistrate may take cognizance. Para 46

Judgment

S.NAGAMUTHU.J.,

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

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

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

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

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

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

“1. Whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 , will either explicitely or impliedly exclude the provisions of the Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code and under the Provisions of the Mines and Minerals (Development and Regulation) Act, 1957?

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

7. As per the direction

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2012 Supreme(Mad) 106

Cases Referred (2)