Ram Bahal vs State Of U.P. And Another
2021 Latest Caselaw 11108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 84
 
Case :- APPLICATION U/S 482 No. - 19576 of 2020
 
Applicant :- Ram Bahal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Arvind Singh,Roopesh Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Arvind Singh, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General appearing along with Sri Pankaj Saxena, learned Additional Government Advocate-I and Sri Arvind Kumar, learned Additional Government Advocate for the State-opposite parties.

2. The present application under Section 482 CrPC has been filed seeking to quash the charge-sheet no. 19 of 2019 dated 30.05.2019 and cognizance order dated 27.08.2020 along with entire proceedings of Case No. 6772 of 2020 (State Vs. Dinesh Sharma and others) under Section 4, 21 of the Mines and Minerals (Development and Regulation) Act, 19571 read with Rules 3, 57, 70 of Uttar Pradesh Minor Minerals (Concession) Rules, 19632 and Sections 379, 411 Indian Penal Code3, Police Station Chopan, District Sonebhadra arising out of Case Crime No. 274 of 2018 pending in the court of Chief Judicial Magistrate, Sonebhadra.

3. The principal ground which is sought to be raised in order to raise a challenge to the proceedings is that the provisions under Sections 21 and 22 of the Mines and Minerals (Development and Regulation) Act, 1957 would operate as a bar against initiation of proceedings by registration of an FIR in respect of allegations constituting offences under the Penal Code. It has been contended that the applicant cannot be prosecuted and punished for the same offence under two enactments namely the MMDR Act and the Indian Penal Code as the same would be barred by applying the rule against double jeopardy. It has been further urged that in respect of the offence, if at all committed, cognizance would have been taken under the MMDR Act, that too on the basis of a complaint to be filed under Section 22 by an authorized officer.

4. Learned Additional Advocate General submits that the bar under Section 22 of the Act would apply only in respect of offences punishable under the MMDR Act and not in respect of offences under the provisions of the Indian Penal Code. He accordingly submits that the initiation of proceedings by lodging of an FIR cannot be said to be prohibited under law. Further submission is that the FIR having been lodged for distinct offences under the Penal Code and MMDR Act, there is no illegality in initiation of the criminal proceedings pursuant thereto. It is pointed out that the State Government has authorized all the District Magistrates/District Mines Officers, in the State of Uttar Pradesh, for the purposes of initiating prosecution under Section 22 of the MMDR Act and Rule 74 of the Concession Rules.

5. The question which thus falls for consideration is with regard to the scope and applicability of the bar contained under Section 22 of the MMDR Act and as to whether the provisions under the section would operate as a bar against initiation of proceedings also in respect of offences under the Penal Code. The other question would be as to what would be the stage when the Magistrate can be said to have taken cognizance so as to attract the bar under Section 22 of the MMDR Act.

6. In order to appreciate the rival contentions, the relevant provisions under the MMDR Act may be adverted to, and the same are as follows :-

"4. Prospecting or mining operations to be under licence or lease. (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder :

Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.

Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Explorations and Research of the Department of Atomic Energy of the Central Government, the Directorate of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of Clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government.

(1-A) 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.

21. Penalties. (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) of Section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.

(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.

(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.

(5) Whenever any person raise, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.

(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.

22. Cognizance of offences. No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or State Government.

23-B. Power to search. If any gazetted officer of the Central or a State Government authorised by the Central Government or a State Government, as the case may be, in this behalf by general or special order has reason to believe that any mineral has been raised in contravention of the provisions of this Act or the rules made thereunder or any document or thing in relation to such mineral; secreted in any place or vehicle he may be search for such mineral, document or thing and the provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every such search."

7. The corresponding provisions with regard to cognizance of offences under the Uttar Pradesh Minor Minerals (Concession) Rules, 1963, which have been made in exercise of powers under Section 15 of the MMDR Act, are also required to be referred to. Rules 3, 57, 70, 74 of the Concession Rules are being extracted below :-

"3. Mining operations to be under a mining lease or mining permit.-(1) No person shall undertake any mining operations in any area within the State of any minor minerals to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules:

Provided that nothing shall affect any operations undertaken in accordance with the terms and conditions of a mining lease or permit duly granted before the commencement of these rules.

(2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules.

57. Penalty for unauthorised mining.-Whoever contravenes the provisions of Rule 3 shall on conviction be punishable with imprisonment of either description for a term, which may extend up to six months or with fine which may extend to twenty-five thousand rupees or with both."

70. Restriction on transport of the Minerals.- (1) The holder of a mining lease or permit or a person authorised by him in this behalf may issue a pass in Form MM-11 to every person carrying a consignment of minor mineral by a vehicle, animal or any other mode of transport. The State Government may, through the District Officer, make arrangements for the supply of printed MM-11 Form books on payment basis.

(2) No person shall carry, within the State a minor mineral by a vehicle, animal or any other mode of transport, excepting railway, without carrying a pass in Form MM-11 issued under sub-rule (1), Form-C issued under Rule 5 (2) of The Uttar Pradesh Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2002 or similar valid transit pass issued by any other State.

Provided that if the State Government enters into an agreement to collect the Royalty through contractor, receipt of royalty or zero receipt as the case may be shall be issued by such contractor and in such cases carrying out such receipt with Form MM-11 will be mandatory for transportation.

(3) Every person carrying any minor mineral shall, on demand by any officer authorised under Rule 66 or such officer as may be authorised by the State Government in this behalf, so the said pass to such officer and allow him to verify the correctness of the particulars of the pass with references to the quantity of the Minor Mineral.

(4) The State Government may establish a check post for any area included in any mining lease or permit, and when a check post is so established public notice shall be given to this fact by publication in the Gazette and in such other manner as may be considered suitable by the State Government.

(5) No person shall transport a minor mineral for which these rules apply from such area without first presenting the mineral at the check post established for that area for verification of the weight or measurement of the mineral.

(6) Any person found to have contravened any provision of this rule shall on, conviction, be punishable with imprisonment of either description for a term which may extend to six months or with fine which may extend to Twenty Five thousand rupees or with both.

74. Cognizance of offences- (1) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the facts constituting such offences by the District Officer or by any officer authorised by him in this behalf.

(2) No court inferior to that of a Magistrate of the first class, shall try any offence under these rules."

8. On an analysis of the provisions of the MMDR Act and the Concession Rules, referred to above, the position which emerges is as follows :-

8.1 Section 4, in particular sub-section (1-A) thereof puts a total restriction on transportation or storage of any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder.

8.2 Section 21 provides for the penalties and as per the terms of the section contravention of Section 4 (1-A) of the Act is punishable. 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 any person who trespasses into any land in contravention of the provisions of Section 4 (1) of the Act. Sub-section (4) further empowers 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 raises, transports any mineral 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 directions 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 the section has been made cognizable.

8.3 Section 22 would show that cognizance of any offence punishable under the Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorized in this behalf by the Central Government or the State Government.

8.4 Section 23-B confers power on any gazetted officer of the Central or State Government authorized in that behalf to make search of minerals, documents or things in case there is a reason to believe that any mineral has been raised in contravention of the Act or the Rules made thereunder.

8.5 Rule 3 of the Concession Rules prohibits any mining operations in respect of a minor mineral, in any area within the State to which the rules are applicable except under and in accordance with the terms of a mining lease or a mining permit granted under the rules. The contravention of Rule 3 invites penalty and constitutes a punishable offence. Rule 70 contains a restriction on transport of the minerals and in terms thereof there is a prohibition on transport of a minor mineral within the State, without carrying a pass in the prescribed form or similar valid transit pass issued by any other State. The contravention of the provision has been made punishable. In terms of Rule 74, no court is to take cognizance of any offence punishable under the rules except on a complaint in writing by the District Officer or by any officer authorized by him in this behalf.

9. Certain provisions of the Code, which are relevant for the purposes of the controversy involved in the present case, are also required to be referred to and the same are as follows :-

"2.Definitions-(c)"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

(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.

(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;

4. Trial of offences under the Indian Penal Code and other laws-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

41. When police may arrest without warrant-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d)to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

(c)who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

2. Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

149. Police to prevent cognizable offences-

Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.

150. Information of design to commit cognizable offences- Every 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 of any other law for the time being in force.

152. Prevention of injury to public property-A police officer 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 navigation."

10. An overview of the aforestated provisions under the Code would go to show the following :-

10.1 Sub-section (1) of 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.

10.2 Sub-section (2) of Section 4 provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the manner or place of investigation, inquiry or trial of such offences.

10.3 According to Section 5 of the Code, the procedure provided under the Special Act shall prevail over the general procedure provided under the Code of Criminal Procedure.

10.4 Section 41 of the Code goes to show that a police officer may without an order from a Magistrate and without a warrant, arrest any person, under the circumstances provided therein.

10.5 Chapter XI (Sections 149 to 153) of the Code confers powers and duties upon the police officer to take preventive action in certain cases.

11. It would also be relevant to refer to the provisions of Chapter XIV, XV and XVI of the Code.

11.1 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."

11.2 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 witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused.

11.3 Chapter XVI is in respect of commencement of proceedings before Magistrates and would become applicable after cognizance of an offence has been taken by the Magistrate under Chapter XIV. Section 204, whereunder process can be issued, reads as under :-

"204. Issue of process.-- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of Section 87."

12. The provisions of the MMDR Act, which is an Act to provide for the development and regulation of mines and minerals under the control of the Union have been consistently interpreted keeping in view the compelling need to restore the ecological imbalances and to stop damages being caused to nature. The issues relating to the adverse environmental impact of illegal mining transportation and storage of minerals have been viewed with concern and the need to scrupulously adhere to the statutory provisions with regard to regulation of the mining operations have been emphasized.

13. The public trust doctrine has been held to be part of our legal system wherein the State is a trustee of all natural resources which are by nature meant for public use and enjoyment, and is under the legal duty to protect the environment and the natural resources. In this regard, reference may be had to the decisions in M.Palanisamy Vs. The State of Tamil Nadu4, Centre for Public Interest Litigation Vs. Union of India,5 M.C.Mehta Vs. Kamal Nath6, and Intellectuals Forum Vs. State of A.P.7

14. In the Constitution Bench judgment in Lalita Kumari Vs. Govt. of U.P. and others8, registration of FIR under Section 154 of the Code has been held mandatory, if the information discloses commission of a cognizable offence.

15. The question as to whether proceedings can be held to be vitiated upon a defect in investigation or the same can be held to be a mere irregularity was subject matter of consideration in H.N. Rishbud and others Vs. State of Delhi9, and it was held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The relevant observations made in this regard are being extracted below :-

"9.The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 CrPC as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 CrPC is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 CrPC which is in the following terms is attracted :

"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision 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 (C) and 'Lumbhardar Zutshi v. The King', AIR 1950 PC 26 (D)."

16. It was thereafter held in the case of H.N. Rishbud (supra) that when the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified.

17. The power to investigate into offences which are of a cognizable offence by the police officer concerned as part of our criminal justice system whereunder the investigation of an offence is the domain of the police was emphasized in Manohar Lal Sharma Vs. Principal Secretary10, and it was held that where such power is exercised consistent with the statutory provisions and for a legitimate purpose the courts ordinarily would not interfere. It was stated thus :

"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens."

18. In order to consider the question as to whether the provisions of the MMDR Act would either explicitly or impliedly exclude the provisions of the Penal Code when the act of the accused is an offence under both the enactments on the principle of the rule against 'double jeopardy', it may be noted that in order to attract applicability of the aforementioned principle as incorporated under Article 20 (2) of the Constitution, there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment would not be barred if the ingredients of the two offences are distinct.

19. The rule against double jeopardy is embodied in the common law maxim "nemo debet bis vexari pro una et eadem causa". It is a basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence and provides foundation for the plea based on the doctrine of autrefois convict.

20. The principle of 'autrefois convict' or 'double jeopardy' as incorporated under Article 20 (2) of the Constitution came up for consideration in the Constitution Bench judgment in the case of Maqbul Hussain Vs. State of Bombay11, wherein it was held that where the offences are distinct, there is no question of the rule against double jeopardy being extended and applied. Referring to the observations made by Charles, J. in R. v. Miles12 and the maxim "Nimo Bis Debet Punire Pro Uno Delicto" it was stated as follows :-

"7. The fundamental right which is guaranteed in Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy'. The roots of that principle are to be found in the well-established rule of the common law of England 'that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence.' (Per Charles, J. in R. v. Miles (1890) 24 QBD 423. To the same effect is the ancient maxim 'Nemo bis debet punire pro uno delicto', that is to say that no one ought to be twice punished for one offence or as it is sometimes written 'pro eadem causa', that is, for the same cause."

21. The principle on which a plea of autrefois convict or autrefois acquit may be taken was also considered by referring to Halsbury's Laws of England, Vol. 9, p.152 and 153, para 21213 and it was stated thus :-

"8. This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit".

"The plea of "autrefois convict" or "autrefois acquit" avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned...... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England-Hailsham Edition, Vol. 9, pages 152 and 153, para 212)."

22. The Fifth Amendment of the American Constitution and Constitutional Law by Willis14 were referred to and it was observed as follows :-

"9. This principle found recognition in Section 26 of the General Clauses Act, 1897-

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,"

and also in Section 403(1) of the Criminal Procedure Code, 1898, -

"A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under Section 237."

10. The Fifth Amendment of the American Constitution enunciated this principle in the manner following :-

"........nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself......."

Willis in his Constitutional Law, at page 528, observes that the phrase

"jeopardy of life or limb" indicates that the immunity is restricted to crimes of the highest grade, and that is the way Blackstone states the rule. Yet, by a gradual process of liberal construction the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours."..........."Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impaneled and sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned."

11. These were the materials which formed the background of the guarantee of fundamental right given in Article 20 (2). It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence."

23. The rule against double jeopardy as embodied in Article 20 (2) of the Constitution was subject matter of consideration in the Constitution Bench judgment in the case of The State of Bombay Vs. S.L. Apte & Another15, and it was held that the rule applies only when both complaints relate to the same offence. It was stated thus :-

"13. To operate as a bar the second prosecution and the consequential punishment thereunder must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out..."

24. In Om Prakash Gupta Vs. State of UP16, as well as State of Madhya Pradesh v. Veereshwar Rao Agnihotri17, it was held that prosecution and conviction or acquittal under Section 409 of IPC do not debar the accused being tried on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in essence, import and content.

25. A similar plea in the context of the provisions contained under Section 55 of the Wild Life (Protection) Act, 1972, which is almost pari materia to Section 21 of the MMDR Act, to the effect that the provisions under Section 55 would constitute a bar to cognizance of an offence under Sections 447, 429 and 379 IPC, was repelled in the case of State of Bihar Vs. Murad Ali Khan and others18, and it was held that the cognizance of the offence against the accused can be taken under Section 55 of the Act, 1972 notwithstanding pendency of police investigation for offences under the relevant provisions of the Penal Code. The observations made in this regard are as follows :-

"24. We are unable to accept the contention of Shri R. F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between Section 429, IPC 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."

26. Referring to the decisions in Blockburger v. United States19, and Jeffers v. United States20, it was observed as follows :-

"26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against reprosecution after acquittal, a protection against reprosecution 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 application of the principle in the context of what is meant by 'same offence'. The principle in American law is stated thus:

The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.

Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if "each provision requires proof of an additional fact which the other does not" (Blockburger v. United States) (1932) 284 US 299. Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States) (1977) 432 US 137."

27. The tests to identify the common legal denominators of 'same offence' were considered by referring to Double Jeopardy21 by Friedland (Oxford 1969). It was stated thus :

"27. The expressions "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence". Friedland in 'Double Jeopardy' (Oxford 1969) says at page 108:

The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the Judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are "substantially the same" may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible....

28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred..."

28. It is therefore seen that in order that the prohibition is attracted the same act must constitute an offence under more than one Act. If the two offences are distinct and separate, with different ingredients under two different enactments, the rule against double jeopardy would not be attracted.

29. The questions as to whether the provisions contained under Sections 21, 22 and the other sections of MMDR Act operate as a bar against prosecution of a person who has been charged with allegations which constitute offences under Sections 379/414 and other provisions of the Penal Code and as to whether the provisions of the MMDR Act explicitly or impliedly exclude the provisions of the Penal Code when the act of an accused is an offence under both the enactments, were considered in detail in the case of State (NCT of Delhi) Vs. Sanjay22 and it was stated as follows :-

"60. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A 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 51-A 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, water 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.

61. 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.

62. Sub-section (1-A) 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 thereunder. In other words no person will do mining activity without a valid lease or license. Section 21 is a penal provision according to which if a person contravenes the provisions of Sub-section (1-A) of Section 4, he shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure, 1973. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf. It is very important to note that Section 21 does not begin with a non-obstante clause. Instead of the words "notwithstanding anything contained in any law for the time being in force no court shall take cognizance.....", the Section begins with the words "no court shall take cognizance of any offence."

63. It is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.

64. In Liverpool Borough v. Turner Lord Campbell23, C.J. at p. 380 said : (ER p.718)

"...No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed."

65. In Pratap Singh v. Shri Krishna Gupta24, at p. 141, the Supreme Court while interpreting the mandatory and directory provisions of statute observed as under:

"3. We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature 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."

66. 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.

67. In Maxwell on the Interpretation of Statutes,10th Edn. at page 38125, 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 words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."

30. Applying the principles of statutory interpretation and the language used under Section 22, it was held that the provision cannot be construed to be a complete and absolute bar with regard to taking action by the police for committing theft of minerals including sand from riverbed and it was held that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from riverbeds without consent, which is the property of the State, are distinct and in view thereof in respect of an offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. The observations made in the judgment are as follows :-

"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 is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including 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 the Penal Code.

71. 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 Penal Code.

72. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease 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, gravels and other minerals from the river, which is the property of the State, out of 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 person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report Under Section 173, CrPC 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 relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly."

31. It was therefore held that the bar contained under Section 22 of the MMDR Act would be attracted only in a case where prosecution is initiated for contravention of the provisions under Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code.

32. The scope and manner in which the bar under Section 22 operates in the context of offences under the MMDR Act/Rules and offences under the IPC in respect of illegal mining and transportation of minerals and the manner in which proceedings in respect of either kind of offences may be initiated and proceeded with, including the possibility of simultaneous and/or independent conduct of either kind of proceedings was considered in detail in the case of Jayant and others Vs. State of Madhya Pradesh26.

33. In considering the question as to when and at what stage the Magistrate can be said to have taken cognizance attracting the bar under Section 22 of the MMDR Act, the scope of the powers of a Magistrate with regard to taking of 'cognizance of offence' was discussed in the light of provisions contained under Sections 190, 200 to 204 and 156 (3) of the Code.

34. Referring to the earlier judicial precedents, the principles with regard to taking of 'cognizance' of an offence were summarized and it was reiterated that taking cognizance does not involve any formal action of any kind and the same occurs as soon as a Magistrate applies his mind to the suspected commission of an offence.

35. The question whether or not a Magistrate has taken cognizance of an offence would depend on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. It was further held that on receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of an offence, he may take cognizance under Section 190 (1) (b) of the Code and issue process straightaway to the accused. Referring to the earlier decisions on the point it was stated as follows :-

"11.3. In Chief Enforcement Officer v. Videocon International Limited27, it is observed and held as under: (SCC pp. 499-504)

'19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no Rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

xxx

26. In Legal Remembrancer v. Abani Kumar Banerjee,28 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 defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. 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.'

xxx

32. In Nirmaljit Singh Hoon v. State of W.B.29, 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.

33. In Darshan Singh Ram Kishan v. State of Maharashtra30, 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 the suspected commission of an offence. Cognizance, thus, takes place at a point when a Magistrate first takes judicial notice of an offence.

34. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy31, this Court said:

'14. This raises the incidental question: What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise 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.'

11.4. In Fakhruddin Ahmad v. State of Uttaranchal32, it is observed and held as under: (SCC pp. 161-163)

"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.

10. Chapter XV containing Sections 200 to 203 deals with "Complaints to Magistrates" and lays down the procedure which is required to be followed by the Magistrate taking cognizance of an offence on complaint. Similarly, Chapter XVI deals with "Commencement of Proceedings before Magistrates". Since admittedly, in the present case, the Magistrate has taken cognizance of the complaint in terms of Section 190 of the Code, we shall confine our discussion only to the said provision. We may, however, note that on receipt of a complaint, the Magistrate has more than one course open to him to determine the procedure and the manner to be adopted for taking cognizance of the offence.

11. One of the courses open to the Magistrate is that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156(3) of the Code, which the learned 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. On receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under Section 190(1)(b) of the Code and issue process straightaway to the accused. However, Section 190(1)(b) of the Code does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against the accused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer.

12. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the 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."

36. Referring to the provisions under the MMDR Act and the Rules made thereunder and applying the aforementioned principles of law with regard to taking of cognizance, it was held that Section 22 of the MMDR Act would not constitute 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 of the Code. It was noted that as per Section 21 of the MMDR Act, the offences thereunder are cognizable.

37. In the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the provisions contained under the Code and the Penal Code, and also the various judicial precedents, the conclusions recorded, in the case of Jayant (supra), are as under :-

"21.1 That the learned Magistrate can in exercise of powers under Section 156 (3) of the Code order/direct the In­-charge/SHO of the police station concerned 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.

21.2 The bar under Section 22 of the MMDR Act shall be attracted only when the learned 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;

21.3 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.

21.4 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 In­-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and the Rules made thereunder and thereafter after investigation the In-­charge of the police station/investigating officer concerned submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned and thereafter it will be open for the learned 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 learned Magistrate.

2.15 In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub­-section (2) of Section 23-A 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 Rules made thereunder so compounded. However, the bar under sub-­section (2) of Section 23-A 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."

38. It would also be apposite to refer to the decision in the case of Kanwar Pal Singh Vs. State of Uttar Pradesh and another33, which was rendered in an appeal arising out of an order passed by the High Court, in terms of which a petition under Section 482 of the Code for quashing criminal prosecution under Section 379 of the Penal Code, Rules 3, 57, and 7 of the Concession Rules, Sections 4 and 21 of the MMDR Act and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984, had been dismissed. The submissions which were put forward to assail the order passed by the High Court were primarily based on the alleged violation of Section 22 of the MMDR Act and the legal effect thereof to contend that the offences, at best, could be held to be violative of Section 4, which is punishable under Section 21 of the MMDR Act, and as per Section 22, no court can take cognizance of the offences under the said Act except on a complaint in writing by a person authorized by the Central or State Government; accordingly the State police being not authorized could not have filed the charge-sheet/complaint.

39. The judgment in the case of State (NCT of Delhi) Vs. Sanjay20 was referred to and it was observed that the investigation of offences is within the domain of the police and the power of a police officer to investigate into a cognizable offence is not ordinarily impinged by any fetters and the court would interfere only where it is found 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 illegal and improper use of the powers or when the investigation by the police is not found to be bonafide or when the investigation is tainted with animosity.

40. The decisions in the case of H.N.Rishbud Vs. State of Delhi34, and Directorate of Enforcement Vs. Deepak Mahajan35 were also taken note of to reiterate the cardinal principle of law that every law is designed to further the ends of justice and should not be frustrated on mere technicalities and that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of cognizance or trial.

41. The challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was also considered and answered by relying upon Section 26 of the General Clauses Act and it was observed as follows :-

"9....Section 26 of the General Clauses Act permits prosecution for "different offences" but bars prosecution and punishment twice for the 'same offence' under two or more enactments..."

42. The contention that where there is a special act dealing with a special subject, resort cannot be taken to a general act, was held to be without force by referring to Section 26 of the General Clauses Act and stating that the offence under Section 4 read with Section 21 of the MMDR Act being different from the offence punishable under Section 379 of the Penal Code, the two are 'different' and not the 'same offence' and it was accordingly held that the contention 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 MMDR Act and not under any other law, was accordingly rejected and it was held that there was no bar on the Court from taking cognizance of the offence under Section 379 of the Penal Code. It was further held that the violation of Section 4 being a cognizable offence, the police could have always investigated the same. The only clarification was made that the prosecution and cognizance under Section 21 read with Section 4 of the MMDR Act would not be valid and justified in the absence of the requisite authorisation.

43. The legal position, as emanating from the aforesaid discussion, may be summarized as follows :-

43.1 The prohibition applying the rule against double jeopardy would be attracted in a situation where the same act constitutes an offence under more than one enactment. However, if the two offences are distinct and different with different ingredients, under two different enactments, the rule against double jeopardy would not be applicable.

43.2 In a case, where the mining activity is carried on by any person in contravention of the provisions of Section 4 and other provisions under the MMDR Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate, whereupon the Magistrate may take cognizance. In a case of breach of Section 4 and other allied provisions, the police officer cannot insist upon the Magistrate for taking cognizance under the Act on the basis of the report submitted by the police alleging contravention. The prohibition under Section 22 of the Act against prosecution of a person except on a complaint made by the person authorized would be attracted only when such person is sought to be prosecuted for contravention of the provisions under Section 4 or other provisions under the MMDR Act and not for any act or omission which constitutes of an offence under the Penal Code.

43.3 In a situation where a person, without any lease or licence or any authority seeks to extract minerals and removes or transports them dishonestly, he would be liable to be punished for committing offences under Section 378 of the Penal Code.

43.4 The contravention of terms and conditions of a mining lease or carrying on any mining activity in violation of Section 4 of the MMDR Act would be an offence punishable under Section 21, whereas dishonestly removing minerals without proper authorization, lease or licence would constitute the offence of theft. The ingredients constituting the offence under the two enactments are distinct and different. Therefore, merely because proceedings for commission of an offence under the MMDR Act have been initiated on the basis of a complaint, the same would not operate as a bar from taking cognizance relating to an offence of theft by exercising powers under the Code and submission of a report before the Magistrate for taking cognizance. The jurisdictional Magistrate would thereafter be empowered to take cognizance of the offence without awaiting receipt of a complaint that may be filed by the authorized officer for taking cognizance in respect of any offence under the MMDR Act.

43.5 The powers under Section 156 (3) of the Code for issuance of a direction for investigation of a case disclosing cognizable offence would be exercisable by the concerned jurisdictional Magistrate even in respect of offences under the MMDR Act and the Rules made thereunder; at this stage the bar under Section 22 of the MMDR Act would not be attracted. The provisions of Section 22 of the MMDR Act and the bar thereunder would get attracted only at the stage when the Magistrate takes cognizance of the offences under the MMDR Act and the Rules made thereunder and proceeds for issuance of process.

43.6 In a case where the Magistrate passes an order under Section 156 (3) and directs investigation in respect of offences arising out of violation of various provisions of the MMDR Act and the Rules made thereunder, and subsequent to the investigation the police submits a report, the same can be sent to the Magistrate concerned as well as to the officer authorized under Section 22 of the MMDR Act, as held in the case of Jayant (supra). It would thereupon be open to the said officer to file a complaint before the Magistrate along with the report submitted by the police and the Magistrate may take cognizance after following due procedure and issue process in respect of the violations of the provisions under the MMDR Act and the Rules made thereunder and it is at this stage that the Magistrate can be said to have taken cognizance.

43.7 The investigation of offences being within the domain of the police, the power of a police officer to investigate into a cognizable offence would ordinarily not be impinged by any fetter and courts would interfere only where it is found that the investigatory powers have been exercised in breach of the statutory provisions putting the personal liberty and/or the property of the citizen in jeopardy. The procedural law is designed to further the ends of justice and should not be allowed to be frustrated on mere technicalities and any defect or illegality in exercise of investigatory powers would have no direct bearing on the competence or the procedure relating to taking of cognizance or the trial.

44. It would therefore be seen that the bar under Section 22 of the Act shall not be attracted at the stage of lodging of an FIR or registration of the criminal case. The bar under the section shall get attracted only at the stage when the Magistrate takes cognizance of the offence and orders issuance of process/summons for the offence under the MMDR Act and the Rules made thereunder. On receipt of the police report, insofar as it relates to commission of offence under the Penal Code, the Magistrate having jurisdiction can take cognizance of the offence and proceed further. However, in respect of offences under the MMDR Act upon submission of the police report the same would be required to be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act whereupon the concerned authorised officer may file a complaint before the Magistrate along with the report submitted by the investigating officer and thereafter it would 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 the Rules made thereunder and at that stage it can be said that cognizance has been taken by the Magistrate in respect of an offence under the MMDR Act.

45. In the case at hand, the offence under Section 4, 21 of the MMDR Act read with Rules 3, 57, 70 of the Concession Rules which relate to illegal mining, and the offence under Section 379, 411 IPC which would relate to theft, cannot be said to be one and the same. The two offences being distinct and under separate enactments with ingredients also being distinct the principle based on the rule against double jeopardy would not be attracted.

46. The offence under Section 379 IPC, which is with regard to theft of minerals, being undisputedly a cognizable offence, the act of the police in registering a case, investigating the same and placing a police report under Section 173 of the Code, cannot be said to be unlawful. The concerned Magistrate is also well within his jurisdiction in taking cognizance as per the provisions under the Code.

47. The contention sought to be raised on behalf of the applicant that the facts as disclosed in the FIR would constitute a mere violation of Section 4 of the MMDR Act which would be an offence cognizable only under Section 21 of the MMDR Act and not under any other law therefore stands rejected. The FIR version having disclosed an offence under Section 379 of the Penal Code and a police report having also been submitted pursuant thereto, there is no bar on the jurisdictional Magistrate from taking cognizance of the offence under the Penal Code. The contravention of the provisions under Section 4 of the MMDR Act also constituting a cognizable offence, the police were within their rights in investigating the same, there being no bar under the MMDR Act with regard to the same.

48. The initiation of the proceedings by lodging of an FIR under relevant provisions of the MMDR Act and the Rules made thereunder and also the provisions of the Penal Code therefore cannot be said to be hit by the bar under Section 22 of the MMDR Act. The investigation of the case and the submission of the police report under Section 173 also cannot be said to be barred by the provisions under the MMDR Act.

49. Insofar as the offences under the MMDR Act are concerned, at the stage of submission of the police report, it was for the concerned authorized officer as specified under Section 22 of the MMDR Act to have filed a complaint before the Magistrate along with the police report whereupon the Magistrate could have taken cognizance after following due procedure and issued process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder.

50. Having regard to the aforesaid, the proceedings, insofar as they relate to the offences under the Penal Code in respect of which cognizance has been taken by the Magistrate and process/summons have been issued, cannot be faulted with and the challenge raised in regard to the same cannot be sustained and is accordingly rejected.

51. However, insofar as the offences under the MMDR Act are concerned, the procedure under Section 22 having not been followed and in the absence of a complaint by the authorized officer, the cognizance taken by the Magistrate cannot be legally sustained and the proceedings in this regard are set aside and quashed. It would be open to the authorized officer to initiate proceedings as per the procedure under Section 22 of the MMDR Act and to lodge a complaint before the concerned Magistrate along with report submitted by the investigating officer whereupon the Magistrate concerned may take cognizance after following due procedure and issue process/summons.

52. The observations made hereinabove while deciding the legal questions may not be treated as findings on merits and the trial court would be expected to independently apply its mind to the factual allegations while proceeding with the trial.

53. The procedure in respect of initiating proceedings and taking cognizance in respect of offences under the MMDR Act and the Penal Code having been discussed above, it would be open to the appropriate authority of the State Government to issue directions delineating suitable guidelines in respect of initiation of proceedings regarding matters which would constitute offences under the MMDR Act as also the Penal Code.

54. The application under Section 482 CrPC stands partly allowed to the extent indicated above.

Order Date :- 20.9.2021

Pratima

(Dr.Y.K.Srivastava,J.)