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TMI Blog2019 (12) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... eld - appeal allowed in part. - Criminal Appeal No. 1920 of 2019 (Arising out of S.L.P. (Criminal) No. 10707 of 2019) - - - Dated:- 18-12-2019 - S. Abdul Nazeer and Sanjiv Khanna, JJ. JUDGMENT Sanjiv Khanna, J. 1. Leave granted. 2. Kanwar Pal Singh, the Appellant, impugns the order dated 22nd July 2019 whereby the High Court of Judicature at Allahabad has dismissed his petition Under Section 482 of the Code of Criminal Procedure, 1973 ('Code' for short) for quashing criminal prosecution Under Section 379 of the Indian Penal Code, 1860 ('IPC for short), Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 ('Mines Regulation Act' for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh. The Appellant had also challenged, without success before the High Court, the order dated 8th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the Appellant for trial. 3. In brief, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Government of NCT of Delhi (2017) 2 SCC 18 and Suresh Nanda v. Central Bureau of Investigation (2008) 3 SCC 674 to urge that the Mines Regulation Act being a special statute, prosecution for an offence Under Section 379 of the Indian Penal Code would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining in Sanjay (supra) was registered suo moto due to non-production of any document to establish mining rights and therefore, the ratio in that case would apply only to cases of illegal mining where the mining lease had already been revoked or there was no subsisting mining lease. 5. We find the submission of the Appellant to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting judgments of the Delhi High Court, Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be prosecuted for the offences Under Sections 379/114 and other provisions of the Indian Penal Code on the allegations of illegal mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue, this Court in Sanjay (supra) took notice of the decision in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 wherein this Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Code. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence Under Section 379 of the Indian Penal Code, it was observed in Sanjay (supra): 69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, 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. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 7. As noticed above, in the written submissions the Appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) 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 Sanjay (supra) as quoted above 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 Regulation Act is different from the offence punishable Under Section 379 of the Indian Penal Code. 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 (2009) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 as cited above, 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 i.e. the Mines and Minerals (Development and Regulation) Act, 1957. 10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no bar on the Court from taking cognizance of the offence Under Section 379 of the Indian Penal Code. We 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. 12. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate Under Section 379 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify 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. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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