Jayant etc. vs The State of Madhya Pradesh

1.2 The High Court has not committed any error in not quashing the order passed by the Magistrate and not quashing the criminal proceedings for the offences under Sections 379 and

414. The Magistrate in exercise of the suo motu powers conferred under Section 156(3), Cr.P.C. directed the concerned In-charge/SHO of the police station to lodge/register the crime case/FIR and directed initiation of investigation and directed the concerned In-charge/SHO of the police station to submit a report after due investigation. It cannot be said that at this stage the Magistrate had taken any cognizance of the alleged offences attracting bar under Section 22 of the MMDR Act. On considering the relevant provisions of the MMDR Act and the Rules made thereunder, it cannot be said that there is a bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173, Cr.P.C. As per Section 21 of the MMDR Act, the offences under the MMDR Act are cognizable. As specifically observed by this Court in the case of Anil Kumar, ‘when a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage’. Even as observed by this Court in the case of R.R. Chari, even the order passed by the Magistrate ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. As observed by the Constitution Bench of this Court in the case of A.R. Antulay, filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Therefore, when an order is passed by the Magistrate for investigation to be made by the police under Section 156(3) of the Code, which the Magistrate did in the instant case, when such an order is made the police is obliged to investigate the case and submit a report under Section 173(2) of the Code. That thereafter the investigating officer is required to send report to the authorised officer and thereafter as envisaged under Section

22 of the MMDR Act the authorised officer as mentioned in Section 22 of the MMDR Act may file the complaint before the Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the Magistrate would arise. [Paras 10, 10.110.3][700-C-H; 701-A-D]

A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC

500 : [1984] 2 SCR 914 – followed.

Anil Kumar v. M. K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869; R. R. Chari v. State of U.P. AIR 1951 SC 207 : [1951] SCR 312 – relied on.

2. It is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellants-violators paid and therefore the bar contained in sub-section 2 of Section 23A of the MMDR Act will be attracted. Section 23A as it stands today has been brought on the Statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Sub-section 2 of Section 23A further provides that where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith. Thus, the bar under sub-section 2 of Section 23A shall be applicable with respect to offences under the MMDR Act or any rule made thereunder. However, the bar contained in sub-section 2 of Section 23A shall not be applicable for the offences under the IPC, such as, Section 379 and 414 IPC. In the present case, the offences under the MMDR Act or any rule made thereunder and the offences under the IPC are different and distinct offences. Therefore, as in the present case, the mining inspectors prepared the cases under Rule 53 of the 1996 Rules and submitted them before the mining officers with the proposals of compounding the same for the amount calculated according to the concerned rules and the Collector approved the said proposal and thereafter the private appellants-violators accepted the decision and deposited the amount of penalty determined by the Collector for compounding the cases in view of sub-section 2 of Section 23A of the MMDR Act and the 1996 rules and even the 2006 rules are framed in exercise of the powers under Section

15 of the MMDR Act, criminal complaints/proceedings for the offences under Sections 4/21 of the MMDR Act are not permissible and are not required to be proceeded further in view of the bar contained in sub-section 2 of Section 23A of the MMDR Act. At the same time, the criminal complaints/proceedings for the offences under the IPC – Sections 379/414 IPC which are held to be distinct and different can be proceeded further, subject to the observations made hereinabove. However, the above conclusions are considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. The 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 the violators may think twice before committing such offences and before causing damage to the earth and the nature. It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay, 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. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, the matter is left there and it is left to the wisdom of the legislatures and the concerned States. [Para 11][701-D-H; 702-A-H; 703-A-E]

3. By the order passed by the Magistrate, confirmed by the High Court, by no stretch of imagination, it can be said that directing to file the first information report/crime case for the offences under the IPC and even for the offences under the MMDR Act and the rules made thereunder, it affects any of the powers of the authorised person to compound the offence. In fact, in view of the decision of this Court in the case of Sanjay, in which this Court has specifically observed and held that so far as the offence under the IPC is concerned, there shall not be any bar under Section 22 of the MMDR Act and when before the High Court the State supported the order passed by the Magistrate and rightly so and when the impugned judgment and order passed by the High Court is in favour of the State, as such, the State ought not to have filed the special leave petition/appeal. [Para 12][703-F-H; 704-A-B]

4. Conclusions:

i) that the Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attracted only when the Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;

iii) for commission of the offence under the IPC, 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the Magistrate.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further.

The appeals filed by the violators/private appellants are partly allowed, to the extent quashing the proceedings for the offences under the MMDR Act – Sections 4/21 of the MMDR Act only. The appeal preferred by the State of Madhya Pradesh stands dismissed. [Paras 13, 14][704-C-H; 705-A-D] Krishna Pillai v. T. A. Rajendran (1990) Suppl. SCC 121; Manohar M. Galani v. Ashok N. Advani (1999) 8 SCC 737 : [1999] 4 Suppl. SCR 458; S. K. Sinha, Chief Enforcement Officer v. Videocon International Limited (2008) 2 SCC 492 : [2008] 2 SCR 36; Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 : [2008] 13 SCR 66; Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64 : [2012] 3 SCR 52 –relied on.

State (NCT of Delhi) v. Sanjay (2014) 9 SCC

772; [2014] 9 SCR 1063; Kanwar Pal Singh v. State of U.P. (2020) 14 SCC 331 – referred to.