Gujarat High Court
Ramabhai Jivabhai Keshwala vs State Of Gujarat on 10 January, 2025
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 3975 of 2020
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
=======================================================
RAMABHAI JIVABHAI KESHWALA
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR DARSHIL KAMDAR for MR ASHISH M DAGLI(2203) for the
Applicant(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/01/2025
ORAL JUDGMENT
1. Draft amendment is allowed. To be carried out
forthwith.
2. By way of present application under Section 482 of
the Criminal Procedure Code, 1973 ("the Code" for
short), the applicant has invoked inherent
jurisdiction of this Court for quashing and
setting aside FIR being C.R. No.I-48/2016
registered with Bhayavadar Police Station for the
offences under Sections 379 and 114 of the Indian
Penal Code ("IPC" for short), under Rules 3, 5, 6,
8 and 13 of the Gujarat Minerals (Prevention of
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
Illegal Mining, Transportation and Storage Rules,
2005 ("Rules, 2005" for short) and under Sections
4(1) and 4(1A) of the Mines and Minerals
(Development and Regulation) Act, 1957 ("Act,
1957" for short).
3. When the matter is taken up for hearing, learned
advocate for the applicant has submitted that the
present matter is squarely covered by the order
dated 03.07.2024 passed by this Court in Criminal
Misc. Application No.11029/2017, wherein similar
issue has been decided by this Court and quashed
and set aside FIR qua the offences under the IPC
reserving liberty to take appropriate action under
the provision of Act, 1957. He further submitted
that the chargesheet has already been filed, which
may also be quashed and set aside. It is,
therefore, urged that this application may be
allowed.
4. On the other hand, learned APP is not in a
position to dispute about the order passed by this
Court relied upon by learned advocate for the
applicant and submitted that appropriate order may
be passed reserving liberty to the concerned
officer to initiate proceedings under the
provision of the Act, 1957.
5. I have heard learned advocates appearing for the
parties as also considered the order dated
03.07.2024 passed by this Court in Criminal Misc.
Application No.11029/2027. Relevant observations
made by this Court reads as under,
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
"7. Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, the only question that
falls for my consideration in this petition
is as to whether the prosecution deserves
to be quashed or not in view of the
specific bar as provided under Section 22
of the Act, 1957.
8. Before the submissions made on behalf of
the parties are considered, I would like to
refer to the provision of the Act, 1957.
9. Section 4 of the Act, 1957 reads as under:
"4. Prospecting or mining operations to be
under license 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 license or, as the
case may be, of a mining lease,
granted under this Act and the
rules made thereunder.]
Provided that nothing in
this sub section shall affect any
prospecting or mining operations
undertaken in any area in
accordance with the terms and
conditions of a prospecting
license 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
Exploration and Research] of the
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
Department of Atomic Energy of
the Central Government, the
Directorates 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
section 617 of the Companies Act,
1956:] [Provided also that
nothing in this sub section shall
apply to any mining lease
(whatever called mining lease,
mining concession or by any other
name) in force immediately before
the commencement of this Act in
the Union Territory of Goa, Daman
and Diu.] [(1A) No person shall
transport or store or cause to be
transported or stored any mineral
otherwise than inaccordance with
the provisions of this Act and
the rules made thereunder.]
(2) [No reconnaissance permit,
prospecting license 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 license or
mining lease].]"
10. Section 22 of the Act, 1957 reads thus:
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
"Cognizance of offence 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 the State Government."
11. At this stage, it is pertinent to note that
an identical question was considered by the
Coordinate Bench of this Court in a batch
of matters being Criminal Misc. Application
No.5230/2010 and allied matters by an order
dated 03.09.2010, wherein the Coordinate
Bench of this Court has formulated the
following questions for his consideration,
12. The aforesaid questions were answered by
the Coordinate Bench of this Court Court as
under:
"(1) The offence under the said Act being
cognizable offence, the police could
have registered an FIR.
(2) However, so far as taking cognizance
of offence under the said Act was
concerned, it could be taken by the
Magistrate only on the basis of a
complaint filed by an authorized
officer, which might be filed along
with the police report.
(3) Since the offence of mining of sand
without permission is punishable under
section 21 of the said Act, the
question of the said offence being an
offence under section 379 of IPC does
not arise because the said Act makes
illegal mining as an offence only when
there is no permit/license for such
extraction and a complaint in that
regard is filed by an authorized
officer.".
13. The final conclusions arrived at by the
Coordinate Bench of this Court were as
under:
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
"1. Section 22 of the Act does not
prohibit registering an FIR by the
police on information being given with
respect to offences punishable under
the said Act or the Rules made
thereunder,
2. It is, however, not open for the
Magistrate to take cognizance of the
offence punishable under the Act or
the Rules made thereunder on a mere
chargesheet filed by the police. It
would, however, be open for the
officer authorized by the State or the
Central Government in this behalf to
file a complaint in writing before the
Magistrate relying upon the
investigation carried out by the
police and the compliant may also
include the papers of police
investigation.
3. With respect to offences punishable
under the Indian Penal Code, no such
bar as indicated in para (2) would
apply."
14. However, the decision taken by the
Coordinate Bench of this Court in the
aforesaid matter was challenged before the
Hon'ble Supreme Court by filing Criminal
Appeal No.2105 of 2013 and while deciding
the said appeal, the Hon'ble Supreme Court
has taken notice of the fact that such
issue came up for consideration before
various High Courts and the orders passed
therein were challenged before the Hon'ble
Supreme Court. Thus the Hon'ble Supreme
Court clubbed all those matters together
and by a common judgment and order dated
04.09.2014, disposed of all the appeals.
The observations made by the Hon'ble
Supreme Court while passing said order read
as under,
"57. Sub-section (1A) of Section 4 of the
MMDR Act puts a restriction in
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
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 Subsection (1A) of
Section 4 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.
58. 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.
59. 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."
60. 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.
61. In Liverpool Borough vs. Turner Lord
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
Campbell (1861), 30 L.J. Ch.379, C.J.
at page 380 said :-
"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."
62. In Pratap Singh vs. Shri Krishna Gupta,
AIR 1956 SC 140 at page 141, the
Supreme Court while interpreting the
mandatory and directory provisions of
statute observed as under:-
"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."
63. The question is whether a statute is
mandatory or directory depends upon
the intent of the Legislature and not
upon the language in which the intent
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
is clothed. The meaning and intention
of the legislature must govern, and
these are to be ascertained, not only
from the phraseology of the provision,
but also by considering its nature,
its design, and the consequences which
would follow from construing it the
one way or the other.
64. In Maxell on the Interpretation of
Statutes 10th Edn. At page 381, it is
stated thus :-
"On the other hand, where the
prescriptions of a statute relate
to the performance of a public
duty and where the invalidation
of acts done in neglect of them
would work serious general
inconvenience or injustice to
persons who have no control over
those entrusted with the duty
without promoting the essential
aims of the legislature, such
prescriptions seem to be
generally understood as mere
instructions for the guidance and
government of those on whom the
duty is imposed, or, in other
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."
65. In the case of State of U.P. vs. Babu
Ram Upadhya, AIR 1961 SC 751, while
interpreting a particular statute as
mandatory or directory this Court
observed :-
"When a statute uses the word
'shall', 'prima facie', it is
mandatory, but the court may
ascertain the real intention of
the legislature by carefully
attending to the whole scope of
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
the statute. For ascertaining the
real intention of the legislature
the court may consider, inter
alia, the nature and the design
of the statute, and the
consequences which would follow
from construing it the one way or
the other, the impact of other
provisions whereby the necessity
of complying with the provisions
in question is avoided, the
circumstance, namely, that the
statute provides for a
contingency of the noncompliance
with the provisions, the fact
that the noncompliance with the
provisions is or is not visited
by some penalty, the serious or
trivial consequences that flow
therefrom, and, above all,
whether the object of the
legislation will be defeated or
furthered."
66. 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 river
bed.
67. 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 eco-
system of the rivers and safety of
bridges. It also weakens river beds,
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
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
repercussions as mentioned
hereinabove. It will not only change
the river hydrology but also will
deplete the ground water levels.
68. 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
Indian Penal Code.
69. However, there may be situation where a
person without any lease or licence or
any authority enters into river and
extracts sands, gravels and other
minerals and remove or transport those
minerals in a clandestine manner with
an intent to remove dishonestly those
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
minerals from the possession of the
State, is laible to be punished for
committing such offence under Sections
378 and 379 of the Indian Penal Code.
70. 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.
71. 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,
Cr.P.C. before a Magistrate having
jurisdiction for the purpose of taking
cognizance as provided in Section 190
(1)(d) of the Code of Criminal
Procedure.
72. After giving our thoughtful
consideration in the matter, in the
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
light of relevant provisions of the
Act vis-a-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 river beds
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 Cr.P.C., 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 MMRD 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."
15. In view of the above observations, now I
would like to consider the facts of the
case on hand. Here in this case on hand, as
stated above, on the fateful day, the
Assistant Geologist had carried out
surprise visit at the place of occurrence,
where along with the Hitachi Machine of the
applicant, other four vehicles were also
found and, hence, FIR has been lodged by
the complainant, who is Royalty Inspector,
not authorized officer as contemplated
under Section 22 of the Act, 1957 and after
registration of the FIR, chargesheet came
to be filed before the court concerned on
conclusion of the investigation, where it
has been registered as Criminal Case
No.178/2016 and as on date, pending for
adjudication but because of the stay
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
granted by the Coordinate Bench of this
Court by an order dated 05.05.2017, the
proceedings are stayed and there is no
progress in the trial. It is, therefore,
required to be noted that there is no bar
upon the Magistrate concerned to take
cognizance of the offence but as per the
provision of Section 22 of the Act, 1957,
it is not open for the Magistrate concerned
to take cognizance of the offence
punishable under the Act, 1957 after filing
of the chargesheet and instead thereof, it
will be open for the officer authorized by
the State or the Central Government in this
behalf to file a complaint in writing
before the Magistrate relying upon the
investigation carried out by the police and
the compliant may also include the papers
of police investigation and as and when
such complaint in writing is filed, in that
event, it is open for the Magistrate to
take cognizance upon the said written
complaint, which in the facts of the
present case is missing.
16. Now the contention raised by learned
advocate for the applicant with regard to
the provision of Section 22 of the Act,
1957 is required to be considered. On
careful consideration of the provision of
Section 22 of the Act, 1956, it clearly
goes on to show that it does not prohibit
registering an FIR by the police on
information being given with respect to
offences punishable under the said Act or
the Rules made thereunder but at the same
time, it clarifies that it is not open for
the Magistrate to take cognizance of the
offence punishable under the Act or the
Rules made thereunder on a mere chargesheet
filed by the police. It also provides that
it would be open for the officer authorized
by the State or the Central Government in
this behalf to file a complaint in writing
before the Magistrate relying upon the
investigation carried out by the police and
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
the compliant may also include the papers
of police investigation. Admittedly herein
in this case on hand, FIR has been lodged
by the Police Inspector, who filed
chargesheet before the court concerned on
conclusion of the investigation and,
thereafter, the court concerned took
cognizance, which is against the provision
of the statute as stated above and vitiates
the proceeding.
17. In view of the foregoing reasons, this
application succeeds and is hereby allowed.
The impugned proceeding being Criminal Case
No.178/2016 pending before the Court of
learned Judicial Magistrate First Class,
Mansa, District : Gandhinagar arising out
of the First Information Report being C.R.
No.I-73/2015 registered with Mansa Police
Station, Gandhinagar is hereby quashed and
set aside qua the applicant. All
consequential proceedings pursuant thereto
also stand terminated. However, it is
clarified that it shall be open for the
authority concerned to file a private
complaint in the Court of the learned
Magistrate concerned, of the offence
punishable under Section 4 of the Act,
1957, through an authorized officer in that
behalf, and if such private complaint is
filed, the Magistrate concerned shall
proceed to consider the same in accordance
with law.
6. In view of the above, it is clear that the present
case is covered by the aforesaid order, therefore,
deserves to be allowed.
7. Accordingly, the present application is hereby
allowed. The impugned FIR being C.R. No.I-48/2016
registered with Bhayavadar Police Station is
hereby quashed and set aside qua the applicant.
All consequential proceedings pursuant thereto
NEUTRAL CITATION
R/CR.MA/3975/2020 JUDGMENT DATED: 10/01/2025
undefined
also stand terminated. However, it is clarified
that it shall be open for the authority concerned
to file a private complaint in the Court of the
learned Magistrate concerned, of the offence
punishable under Section 4 of the Act, 1957,
through an authorized officer in that behalf
putting replying upon the material and evidence
collected so far in connection with the impugned
FIR, and if such private complaint is filed, the
Magistrate concerned shall proceed to consider the
same in accordance with law.
8. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
