Mines and Minerals (Development and Regulation) Act, 1957 – ss.4, 21 and 22 – Penal Code, 1860 – s.379 – Uttar Pradesh Minor Mineral (Concession) Rules, 1963 – rr.3, 7 and 57 – Prevention of Damage to Public Property Act, 1984 – ss.3 and 4 – The appellant was granted rights to excavate sand vide mining lease over a plot – It was alleged that the appellant was mining outside the permitted area and had illegally excavated a pit – Consequent to which, FIR was registered u/s.379 IPC, rr. 3, 57 and 7 of the Rules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of the Act, 1984 – The Magistrate took cognizance and summoned appellant for trial – Petition filed by the appellant u/s. 482 CrPC before the High Court to quash criminal proceedings was dismissed – On appeal before the Supreme Court, the appellant contended that he was wrongly charge-sheeted by the police for the offences, as at the best there was violation of s.4 which was punishable u/s. 21 of the Act, 1957 – It was further contended that the Act, 1957 is a special statute, the prosecution for an offence u/s. 379 IPC was not maintainable – Held: In the State (NCT of Delhi) v. Sanjay, it was observed that considering the principles of interpretation and wordings used in s.22 of the Act, 1957, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed – Further, the said judgment specifically referred to s.26 of the General Clauses Act and stated that the offence u/s.4 r/w. s.21 of the Mines Regulation Act is different from the offence punishable u/s.379 of IPC – Thus, they are two ‘different’ and not the ‘same offence’ – Therefore, contentions of the appellant were rejected – There was no bar on the Court from taking cognizance of offence u/s.379 IPC – And violation of s.4 of the Act, 1957, being a cognizable offence, the police could have investigated the same – However, it was clarified that prosecution and cognizance u/s. 21 r/w. s.4 of the Act, 1957 will not be valid and justified in absence of authorisation – In view thereof, the order of the High Court refusing to set aside the prosecution and cognizance of the offence u/s.379 of the IPC and ss.3 & 4 of the Prevention of Damage to Public Property Act was upheld – General Clauses Act – s.26.
Jeewan Kumar Raut and Another v. Central Bureau of Investigation – distinguished – The State Police filed the chargesheet/complaint against the appellant u/s.379 IPC, rr. 3, 57 and 7 of the Rules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of the Act, 1984 – Appellant contended that the State police was not authorised and therefore, could not have filed the charge-sheet/complaint and strongly placed reliance on the Jeewan Kumar Raut case – Held: In Jeewan Kumar Raut case reference was made to cl.(iv) of Sub-section (3) to s.13 of the Transplantation of Human Organs Act, 1994 which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action – However, there is no similar provision under the Mines Regulation Act, 1957 – The issue raised in the Jeewan Kumar Raut case was entirely different from the one raised in the present case – No merit in the contention of the appellant – The violation of s.4 of the Act, 1957 being a cognizable offence, the police could have investigated the same, there being no bar under the Act, 1957 – Mines and Minerals (Development and Regulation) Act, 1957 – Penal Code, 1860 – Uttar Pradesh Minor Mineral (Concession) Rules, 1963 – Prevention of Damage to Public Property Act, 1984.
Partly allowing the appeal, the Court
HELD: 1. In the written submissions the appellant has relied upon Belsund Sugar Company Limited v. State of Bihar, Sharat Babu Digumarti v. Government of NCT of Delhi and Suresh Nanda v. Central Bureau of Investigation to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in State (NCT of Delhi) v. Sanjay which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 is different from the offence punishable under Section 379 of the IPC. Thus, they are two ‘different’ and not the ‘same offence’. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State, which was impugned in State (NCT of Delhi) v. Sanjay, had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before this Court, therefore, must be rejected. [Para 7][1170-C-E]
2. In Jeewan Kumar Raut and Another v. Central Bureau of Investigation case on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in Institute of Chartered Accountants of India v. Vimal Kumar Surana by observing that the provisions of the Transplantation of Human Organs Act, 1994 (TOHO Act) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. This Court would like to further elucidate and explain that in Jeewan Kumar Raut this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the Code on the ground that the Central Bureau of Investigation (CBI) had failed to file the charge-sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 of the Code, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code. Reference was made to clause (iv) of sub-section
(3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines Regulation Act, 1957. [Para 9][1170-G-H; 1171-A-E]
3. The Jeewan Kumar Raut was dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that 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. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut holds no merit. [Para 10][1171H; 1172-A-B]
4. The decision of the Calcutta High Court in Seema Sarkar v. State wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. This Court has already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section
379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in State (NCT of Delhi) v. Sanjay after referring to Section 26 of the General Clauses Act and the meaning of the expression ‘same offence’, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. This Court would also observe that the violation of Section
4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act. [Para 11][1172-C-G]
5. In view of the aforesaid discussion, this Court would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the Magistrate under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. However, it is clarified that prosecution and cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. [Para 12][1172-H; 1173-A-B]
State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 : [2014] 9 SCR 1063 – relied on.
Jeewan Kumar Raut and Another v. Central Bureau of Investigation (2009) 7 SCC 526 : [2009] 10 SCR 272 – distinguished.
H. N. Rishbud v. State of Delhi AIR 1955 SC 196 : [1955] SCR 1150; Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 : [1994] 1 SCR 445; Belsund Sugar Company Limited v. State of Bihar (1999) 9 SCC 620 : [1999] 1 Suppl. SCR 146; Sharat Babu Digumarti v. Government of NCT of Delhi (2017)
2 SCC 18 : [2016] 8 SCR 1015; Suresh Nanda v. Central Bureau of Investigation (2008) 3 SCC 674 : [2008] 1 SCR 1212; Maqbool Hussain v. State of Bombay AIR 1953 SC 325 : [1953] SCR 730; Om
Parkash Gupta v. State of U.P. AIR 1957 SC 458 : [1957] SCR 423; State of Madhya Pradesh v.
Veereshwar Rao Agnihotri AIR 1957 SC 592 : 1957 SCR 868; T. S. Baliah v. ITO AIR 1969 SC 701 : [1969]
3 SCR 65; Collector of Customs v. Vasantraj Bhagwanji Bhatia (1988) 3 SCC 467 : [1988] 3 SCR 450; State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 : [1988] 3 Suppl. SCR 455 Avtar Singh v. State of Punjab AIR 1965 SC 666 : [1965] 1 SCR 103; Institute of Chartered Accountants of India v. Vimal Kumar Surana (2011) 1 SCC 534 : [2010] 14 SCR 248 – referred to.
Sanjay v. State (2009) 109 DRJ 594; Seema Sarkar v. State (1995) 1 Cal LT 95 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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