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TMI Blog2020 (12) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... Court accepted the submission on behalf of the State that the bar Under Section 195 Code of Criminal Procedure can be gone into at the stage when the court takes cognizance of the offence and investigation on the basis of the information received could not have been quashed and an investigating agency cannot be throttled at this stage from proceeding with the investigation particularly when the charges are serious and grave. The High Court has not committed any error in not quashing the order passed by the learned Magistrate and not quashing the criminal proceedings for the offences Under Sections 379 and 414. It is required to be noted that the learned Magistrate in exercise of the suo motu powers conferred Under Section 156(3), Code of Criminal Procedure 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. As the appeal preferred by the State on the premise that the order passed by the learned Magistrate, confirmed by the High Court, affects the powers of the authorised person to compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Indian Penal Code and the offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of double jeopardy . That by the impugned common judgment and order, the High Court has dismissed all the aforesaid applications relying upon the decision of this Court in the case of Sanjay (supra). 4. Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the High Court in refusing to quash the FIRs filed against the private Appellants and other violators, the original Petitioners - violators have preferred the present appeals. Though, before the High Court, the learned Public Prosecutor appearing on behalf of the State of Madhya Pradesh supported the order passed by the learned Magistrate directing to register/lodge FIRs, the State has preferred a separate special leave petition challenging the impugned judgment and order passed by the High Court confirming the order passed by the learned Magistrate. It is very surprising that despite supporting the order passed by the learned Magistrate before the High Court, the State of Madhya Pradesh has preferred the special leave petition, which shall be dealt with hereinbelow. 5. Shri Devadatt Kamat, learned Senior Advocate appearing on behalf of the private Appellants has made following submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove, the learned Public Prosecutor appearing on behalf of the State of Madhya Pradesh supported the order passed by the learned Magistrate before the High Court. One of the grounds stated in the memo of appeal is that the order passed by the learned Magistrate, confirmed by the High Court, impinges/affects the powers of the authorised person to compound the offence Under Rule 18 of the 2006 Rules. 7 . Before submissions made on behalf of the respective parties are considered, the decision of this Court in the case of Sanjay (supra) dealing with the provisions of the MMDR Act in which this Court considered in detail the policy and object of the MMDR Act and the Rules made thereunder, is required to be referred to. 7.1. The question which arose for consideration before this Court was, whether the provisions contained in Sections 21, 22 and other Sections of the MMDR Act operate as bar against prosecution of a person who has been charged with allegation which constitutes offences Under Sections 379/414 and other provisions of the Penal Code (IPC). The question which arose was, whether the provisions of the MMDR Act explicitly or impliedly exclude the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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. 35. 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. 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 roughness of the bed, flow velocity, discharge capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 riverbeds may also cause the entire stream-bed to degrade to the depth of excavation. *** 23. 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. The affected distance depends on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullius) or by everyone in common (res communis). 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 he 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 and need not be repeated in detail here. But two points should be emphasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conservation of natural resources vis- -vis urban development observed as under: (SCC p. 572, para 67) 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 case14). 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. 7.2. This Court further observed in paragraphs 60 69 as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or doing mining activity in violation of Section 4 of the Act is an offence punishable Under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report Under Section 173 Code of Criminal Procedure before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance. 9 . Let us now consider the question in the light of judicial pronouncements on the point. 9.1. In the case of Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121, after considering a five Judge Bench judgment of this Court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500, it is observed in paragraph 4 as under: 4 . Taking cognizance has assumed a special meaning in our criminal jurisprudence. We may refer to the view taken by a five Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak (supra) at p. 530 (para 31) of the reports this Court indicated: When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Code of Criminal Procedure. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no Rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 21. Chapter XIV (Sections 190-199) of the Code deals with Conditions requisite for initiation of proceedings . Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso: 190. Cognizance of offences by Magistrates --(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf Under Sub-section (2), may take cognizance of any offence-- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 22. Chapter XV (Sections 200-203) relates to Complaints to Magistrates and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment, it is clear that Initiation of proceedings , dealt with in Chapter XIV, is different from Commencement of proceedings covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI. 25. Let us now consider the question in the light of judicial pronouncements on the point. 26. In Supdt. Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal. 437, the High Court of Calcutta had an occasion to consider the ambit and scope of the phrase taking cognizance Under Section 190 of the Code of Criminal Procedure, 1898 which was in pari materia with Section 190 of the present Code of 1973. Referring to various decisions, Das Gupta, J. (as His Lordship then was) stated: (AIR p. 438, para 7) 7. ... What is 'taking cognizance' has not been def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in Code of Criminal Procedure on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) Code of Criminal Procedure the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore, in cases of cognizable offence before proceedings are initiated and while the matter is under investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Hoon v. State of W.B., (1973) 3 SCC 753, the Court stated that it is well settled that before a Magistrate can be said to have taken cognizance of an offence Under Section 190(1)(a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding Under Section 200 and the provisions following that section. Where, however, he applies his mind only for ordering an investigation Under Section 156(3) or issues a warrant for arrest of the Accused, he cannot be said to have taken cognizance of the offence. 3 3 . In Darshan Singh Ram Kishan v. State of Maharashtra (1971) 2 SCC 654, speaking for the Court, Shelat, J. stated that Under Section 190 of the Code, a Magistrate may take cognizance of an offence either (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been said, taking cognizance does not involve any formal action or indeed action of any kind. It occurs as soon as a Magistrate applies his mind to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police Under Section 156(3), he cannot be said to have taken cognizance of any offence. (see also M.L. Sethi v. R.P. Kapur AIR 1967 SC 528). 9.4. In the case of Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157, in paragraphs 9 to 17, it is observed and held as under: 9. Before examining the rival contentions, we may briefly refer to some of the relevant provisions in the Code. Chapter XIV of the Code, containing Sections 190 to 199 deals with the statutory conditions requisite for initiation of criminal proceedings and as to the powers of cognizance of a Magistrate. Sub-section (1) of Section 190 of the Code empowers a Magistrate to take cognizance of an offence in the manner laid therein. It provides that a Magistrate may take cognizance of an offence either (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material referred therein, a case for cognizance is made out or not. 13. The next incidental question is as to what is meant by the expression taking cognizance of an offence by a Magistrate within the contemplation of Section 190 of the Code? 14. The expression cognizance is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B. AIR 1963 SC 765 (AIR p. 770, para 19) 19. ... The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means-- become aware of and when used with reference to a court or Judge, to take notice of judicially. Approving the observations of the Calcutta High Court in Emperor v. Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal. 412 (at ILR p. 416), the Court said that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. (emphasis supplied) 1 5 . Recently, this Court in Chief Enforcement Officer v. Videocon International Ltd. speaking through C.K. Thakker, J., while considering the amb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. 9.5. In the case of Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, it is observed in paragraphs 34 to 37 as under: 3 4 . The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the Section nor the judicial precedents relied upon by him. Though, the term cognizance has not been defined either in the 1988 Act or Code of Criminal Procedure, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially . 35. In R.R. Chari v. State of U.P. AIR 1951 SC 207, the three-Judge Bench approved the following observations mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) Code of Criminal Procedure and no illegality of any kind would be committed. 9.6. In the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705, it is observed and held in paragraphs 12 to 15 as under: 1 2 . We will now examine whether the order directing investigation Under Section 156(3) Code of Criminal Procedure would amount to taking cognizance of the offence, since a contention was raised that the expression cognizance appearing in Section 19(1) of the PC Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. 1 3 . The expression cognizance which appears in Section 197 Code of Criminal Procedure came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh (2009) 6 SCC 372, and this Court express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the offenders against whom a prima facie case is made out. The meaning of the said expression was also considered by this Court in Subramanian Swamy case (2012) 3 SCC 64. 1 5 . The judgments referred to hereinabove clearly indicate that the word cognizance has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation Under Section 156(3) Code of Criminal Procedure, 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. When a Special Judge takes cognizance of the offence on a complaint presented Under Section 200 Code of Criminal Procedure and the next step to be taken is to follow up Under Section 202 Code of Criminal Procedure. Consequently, a Special Judge referring the case for investigation Under Section 156(3) is at pre-cognizance stage. 10. Having heard learned Counsel for the parties and having perused the relevant provisions of the law as also the judicial pronouncements, we are of the view that the High Court has not committed any error in not quashing the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 learned Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the learned Magistrate would arise. 11. Now so far as the submission on behalf of the private Appellants-violators that in view of the fact that violators were permitted to compound the violation in exercise of powers Under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences Under Sections 379 and 414 Indian Penal Code and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offences under the Indian Penal Code - Sections 379/414 Indian Penal Code which are held to be distinct and different can be proceeded further, subject to the observations made hereinabove. However, our 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. However, in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay (supra), the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, in view of the decision of this Court in the case of Sanjay (supra), in which this Court has specifically observed and held that so far as the offence under the Indian Penal Code 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 learned 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. 13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis- -vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under: i) that the learned 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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