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TMI Blog2014 (9) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... nments, to conserve and not waste such valuable resources. Article 48A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership. There is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence. Considering the principles of interpretation and the wordings used in Section 22, it can be said that 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with sand. Because of non-production of any documents and valid papers, the digging equipments were seized and taken into possession and persons were arrested. An FIR was registered on the charges of illegal mining Under Section 379/114 Indian Penal Code besides being cognizable offence Under Section 21(4) of the Mines and Mineral (Development and Regulation) Act, 1957 (in short the MMDR Act). 3. The Appellant challenged the registration of the case on the ground inter alia that offence if at all committed, cognizance would have been taken under the provisions of MMDR Act, that too on the basis of complaint to be filed Under Section 22 of the Act by an authorized officer. 4. Criminal Appeal No. 2105 of 2013 Similarly this case arose out of an order passed by the Gujarat High Court on an application filed by the Appellant seeking quashing of the FIR on various grounds inter alia that Section 22 of the MMDR Act put a complete bar on the registration of FIR by the police. The allegation inter alia in the FIR was on illegal mining in those areas where mining lease was already revoked. 5. Criminal Appeal Nos. 2108-2112 of 2013 In these cases, Appellants are the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case; (ii) However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which may be filed along with the police report; (iii) Since the offence of mining of sand without permission is punishable Under Section 21 of the said Act, the question of said offence being an offence Under Section 379 Indian Penal Code does not arise because the said Act makes illegal mining as an offence only when there is no permit/licence for such extraction and a complaint in this regard is filed by an authorized officer. 9. On the other hand the Gujarat High Court formulated the following question for consideration: Whether Section 22 of the Act would debar even lodging an FIR before the police with respect to the offences punishable under the said Act and Rules made thereunder? In Case such FIR's are not debarred and the police are permitted to investigate, can the concerned Magistrate take cognizance of the offences on a police report? Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of. The allegation made against the writ Petitioner in the FIR was that they committed theft of sand from rivers and river-bed belonging to the Government, which act also constitutes violation of the provisions of MMDR Act. Accordingly, they were prosecuted for the offence punishable Under Section 21 of the MMDR Act and also Under Section 379 Indian Penal Code. The question that came for consideration before the Court was as to whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, will either explicitly 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? 12. After considering various provisions of the Act, the Division Bench observed: 35. A cursory comparison of these two provisions with Section 378 of Indian Penal Code would go to show that the ingredients are totally different. The contravention of the terms and conditions of mining lease, etc. constitutes an offence punishable Under Section 21 of the Mines and Minerals Act, whereas dishonestly taking any movable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituting an offence Under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957, then there is no ingredient for an offence Under Section 379 Indian Penal Code against the accused. Even if it is assumed that there is such an ingredient then the order of taking cognizance is bad because cognizance is one and it cannot be made a split. If it is found that taking cognizance of an offence is bad the other part of the offence for which cognizance has been taken cannot be sustained in law. 14. Since conflicting views have been taken by Gujarat High Court, Delhi High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court, and they are in different tones, it is necessary to settle the question involved in these appeals. 15. Mr. Nikhil Goel learned Counsel appearing in Criminal Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the impugned order of the High court on various grounds. Learned Counsel firstly contended that Section 22 of MMDR Act per se puts a bar even on registration of the FIR and consequently on investigation unless a direction to that effect comes from the Magistrate and that too on a complaint in writin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Sub-clause 6 of Section 21 are to be extended to Chapter 12 despite which several provisions in Chapter 12 cannot be invoked. 17. Learned Counsel further submitted that the provisions of Chapter 12 to 14 leading up to the magistrate taking cognizance of an offence are a part of a common statutory duty. The investigation Under Section 156 of the Code has to necessarily result in a report either Under Section 170 or 173 of the Code. The Appellant submits that the magistrate is duty bound to act on such report in one of the three manners suggested in para-6 of 1980 (4) SCC 631 . It is submitted that there is no other option of preparation of final report and keep it in abeyance. For this reason as well, the provisions of Sub-section (6) cannot be read into Chapter 12 of the code. Learned Counsel further submitted that the manner in which the various high courts have dealt with these provisions are conflicting. The Appellant relies upon the decision of Kerala High Court reported in 2008 Cr. L.J. 2388 , decision of Madras High Court in Sengol (supra), the judgments of this Court reported in (2009) 7 SCC 526 and (2011) 1 SCC 534 on the interpretation of similar clauses un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu. (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made Under Section 18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease. 19. From a bare perusal of Section 4, particularly Section 4(1A) would show that there is a total restriction on transportation or search of minerals otherwise than in accordance with the provisions of the Act and the rules made thereunder. The next relevant provisions are Sections 21 and 22 of the Act. Section 21 reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of contravention of Section 4(1A) of the Act and is punishable with imprisonment for a term which may extend to two years. Sub-Section 3 of Section 21 would show that the State Government or any other authority authorized by the State Government may obtain the help of police to evict the trespassers from the land who is doing mining activity in contravention of the provisions of the Act. Sub-Section 4 further empowered the officer or an authority specially empowered in this behalf to seize any tool, equipment, vehicle or any other thing which are used by any person who illegally or without any lawful authority erases, transports any minerals from any land. Those minerals, tools, equipment or vehicle or any other thing so seized shall be confiscated by the order of the court competent to take cognizance and shall be disposed of in accordance with the direction of such court as contemplated Under Sub-Section 4(A) of Section 4 of the Act. Sub-section (6) of Section 21 has been inserted by an Amendment Act of 1986 whereby an offence Under Sub-section (1) of this Section has been made cognizable. Section 22 which is very relevant for the instant case needs to be quoted hereinbelow: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or under any other law for the time being in force, arrest without warrant; 2(d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 2(h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; 25. Section 4 provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the said Code. Sub-section (2) of Section 4 provides that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the mining or place of investigation, inquiry or trial of such offences. Coming to the provisions of Section 41 of the Code, it will show that a police officer without an order of Magistrate and warrant can arrest any person who commits a cognizable of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence. 151. Arrest to prevent the commission of cognizable offences -(1) A police officer, knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested Under Sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or any other law for the time being in force. 152. Prevention of injury to public property .-A police office may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh beach erosion. Fishing, both traditional and commercial--can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply. 33. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors--beaches themselves. 34. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed, and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from river beds may also cause the entire stream-bed to degrade to the depth of excavation. 22. The most important effects of in-stream sand mining on aquatic habitats are bed degradation and sedimentation, which can have substantial negative effects on aquatic life. The stability of sand-bed and gravel-bed streams depends on a delicate balance between stream flow, the sediments supplied from the watershed and the channel form. Mining-induced changes in sediment supply and channel form disrupt the channel and the habitat development processes. Furthermore, movement of unstable substrates results in downstream sedimentation of habitats. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan-proponent of the Modern Public Trust Doctrine-in an erudite article Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention , Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under: The source of modern public trust law is found in a concept that received much attention in Roman and English law-the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court while balancing the conservation of natural resources vis- -vis urban development observed as under: 67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of State responsibility for pollution emanating within one's own territories (Corfu Channel case). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area. 39. In the case of Manohar Lal Sharma v. Principal Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act. xxx 14. It may be noticed at this stage that a three-Judge Bench of this Court in H.N. Rishbud v. State of Delhi AIR 1955 SC 196, had held that a defect or illegality in investigation, however serious, has no dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no doubt that the relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in-' Parbhu v. Emperor AIR 1944 PC 73, and-'Lumbhardar Zutshi v. R. AIR 1950 PC 26. It further held: In our opinion, therefore, when such a breach is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined. 41. In the case of Directorate of Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , the question that fell for consideration before the Constitution Bench of this Court was whether by reason of the proceedings taken by the Sea Customs authorities the Appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the court of the Chief Presidency Magistrate, Bombay. In the said case, gold had been brought by the Appellant from Jeddah in contravention of the provisions of Foreign Exchange Regulation Act, 1947. He was also liable to be prosecuted under the Sea Customs Act. The prosecution was challenged as being violative of Article 20(2) of the Constitution. The Constitution Bench answering the question held as under: ...There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same, viz., importing the gold in contravention of the notification of the Government of India dated the 25th August, 1948. The Appellant could be proceeded against Under Section 167(8) of the Sea Customs Act as also Under Section 23 of the Foreign Exchange Regulation Act in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and see whether their identity is made out. It would be seen from a comparison of Section 105 of the Insurance Act and Section 405 of Indian Penal Code (Section 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following: (1) Whereas Under Section 405 of the Indian Penal Code the accused must be entrusted with property or with dominion over that property , Under Section 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient if the manager, director, etc. obtains possession of the property. (2) The offence of criminal breach of trust (Section 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or the disposition in violation of the law or contract , is done with a dishonest intention, but Section 105 of the Insurance Act postulates no intention and punishes as an offence the mere withholding of the property-whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate. The Special Judge found the accused guilty of the offence Under Section 409 of the Indian Penal Code and convicted him to three years' rigorous imprisonment but as regards the charge Under Section 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non-compliance with the rules as to investigation prescribed by the latter enactment. The Respondent appealed to the High Court against this conviction and sentence Under Section 409 of the Indian Penal Code and there urged that by reason of his acquittal in respect of the offence Under Section 5(2) of the Prevention of Corruption Act, his conviction Under Section 409 of the Indian Penal Code could not also be maintained, the same being barred by Article 20(2) of the Constitution. The High Court of Madhya Bharat accepted this argument and allowed the appeal and the State challenged the correctness of this decision by an appeal to this Court. Allowing the appeal of the State, Govinda Menon, J., delivering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this argument, Section 53 of the 1922 Act only requires that a person shall not be proceeded against for an offence Under Section 51 or Section 52 of the 1922 Act except at the instance of the Inspecting Assistant Commissioner . It is not disputed in the present case that the Respondent has filed complaint petitions on the authority of the Inspecting Assistant Commissioner. There is no statutory requirement that the complaint petition itself must be filed by the Inspecting Assistant Commissioner. The clause at his instance in Section 53 of the 1922 Act only means on his authority and it is therefore sufficient compliance of the statutory requirement if the complaint petition is filed by the Respondent on being authorised by the Inspecting Assistant Commissioner. 46. In the case of Collector of Customs v. Vasantraj Bhagwanji Bhatia 1988 (3) SCC 467, the question that arose for consideration before this Court was as to whether a person prosecuted under the Customs Act, 1962 was also liable to be prosecuted under the Gold (Control) Act, 1968. In that case, person was acquitted from the charge of commission of offence under the Customs Act. Considering the question, whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore quite separate offences. This is also the view expressed by the United States Supreme Court in United States v. Rabinowich (1915) 238 U.S. 78. The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the Petitioners have already been prosecuted and punished for the same offence . It is true that the Collector of Customs has used the words punishment and conspiracy , but those words were used in order to bring out that each of the two Petitioners was guilty of the offence Under Section 167(8) of the Sea Customs Act. The Petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 Indian Penal Code on the one hand and Section 9(1) read with Section 50(1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression any act or omission which constitutes any offence under this Act in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. xxx 26 . Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee Under Article 20(2). But difficulties arise in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. 50. It is well known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct. 51. In the case of State of Rajasthan v. Hat Singh (2003) 2 SCC 152, a person was prosecuted for violation of prohibitory order issued by the Collector Under Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance, 1987. Against the said Ordinance, mass rally took place which led to the registration of FIRs against various persons for violation of prohibitory order Under Sections 5 and 6 of the Act. Persons, who were arrested, moved a petition chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Electrical Inspector, or of a person aggrieved by the same. This Court allowing the appeal held as under: We may now refer to certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Sections 39 to 50 of the Act is Criminal Offences and Procedure . Obviously, therefore, the legislature thought that Section 39 created an offence. We have also said that Sections 48 and 49 indicate that in the legislature's contemplation Section 39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word 'offence' is not defined in the Act. Since for the reasons earlier mentioned, in the legislature's view Section 39 created an offence, it has to be held that that was one of the offences to which Section 50 was intended to apply. Lastly, it seems to us that the object of Section 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Respondent challenged the order by filing revision Under Section 397, Code of Criminal Procedure. The Additional Sessions Judge set aside the order of the Magistrate and remanded the case to the trial court with a direction to decide whether there are sufficient grounds for framing charges Under Sections 419, 468, 471 and 473, Indian Penal Code read with Sections 24 and 26 of the C.A. Act. After remand, the trial court passed an order holding that there was no basis for framing any charge against Respondent under the Indian Penal Code. The Magistrate further held that cognizance of offences Under Sections 24 and 26 of the C.A. Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate. The revision filed against the orders of the Magistrate was dismissed. The High Court referring Sections 2, 4, 5 and Section 195(1), Code of Criminal Procedure held that in the absence of a complaint the Magistrate was not competent to frame charges against the Respondent. The High Court further held that in view of the special mechanism contained in the C.A. Act for prosecution of a person violating Sections 24, 24A and 26 of the Act, he ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t waste such valuable resources. Article 48A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership. 56. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence. 57. Sub-section (1A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the rules made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. 63. The question is whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. 64. In Maxell on the Interpretation of Statutes 10th Edn. at page 381, it is stated thus: On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence Under Sections 378 and 379 of the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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