George vs State Of Kerala
2021 Latest Caselaw 663 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

 FRIDAY, THE 08TH DAY OF JANUARY 2021/18TH POUSHA, 1942

                Crl.Rev.Pet.No.956 OF 2010

     AGAINST THE JUDGMENT IN Crl.Appeal No.969/2005
DATED 21-01-2010 OF ADDITIONAL DISTRICT & SESSIONS COURT
                FAST TRACK -I, THRISSUR

  CC 282/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
               WADAKKANCHERY DTD.14.11.2005


REVISION PETITIONER/APPELLANT/ACCUSED:

           GEORGE,
           S/O.KURIAKOSE,
           RESIDING AT KALLAMKULANGARA(H),
           AYYAPPAN EZHUTHACHAN PADI,
           PAINKULAM, THALAPPILLY,
           THRISSUR DISTRICT.

           BY ADV. SRI.V.VENUGOPALAN NAIR

RESPONDENTS/RESPONDENTS/COMPLAINANT:

     1     STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

     2     SUB INSPECTOR OF POLICE,
           CHERUTHURUTHY POLICE STATION,
           THRISSUR DISTRICT.


              SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 22-12-2020, THE COURT ON 08-01-2021 PASSED THE
FOLLOWING:
 Crl.R.P.No.956 of 2010


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                                                                   [CR]
                             ORDER

The revision petitioner is the accused in

C.C.No.282/2001 on the file of the Judicial First Class

Magistrate Court, Wadakkanchery and the appellant in

Crl.Appeal No.969/2005 on the file of the Additional

Sessions Court, Fast Track-I, Thrissur. The offence alleged

against the accused is punishable under Section 379 of

the Indian Penal Code (hereinafter referred to as 'the

IPC').

2. The prosecution case in brief is as hereunder:-

On 06.06.2001 in the morning, PW5-the

Sub Inspector of Police, Cheruthuruthy Police Station

received reliable information that river sand was being

stolen from the Painkulam kadavu of Bharathapuzha river.

Consequently, PW5 and his party immediately rushed to

the said kadavu. On reaching the spot at 7.30 am., PW5

saw the accused removing sand from the kadavu and Crl.R.P.No.956 of 2010

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loading them on the board of a lorry bearing registration

No.TN 51-2-0216. On seeing the police party, the

accused attempted to run away from the scene of

occurrence. PW5 caught hold of the accused and

questioned him. The accused was not able to produce any

document authorising him to remove sand from the

kadavu which is vested in the Grama Panchayat. The Sub

Inspector arrested the accused and seized the lorry as per

Ext.P1 seizure mahazar and on reaching the police

station, registered the case against the accused as Crime

No.131/2002 of Cheruthuruthy Police Station for the

offence punishable under Section 379 of the IPC. The

accused, who was produced before the learned Magistrate, was

remanded to judicial custody and later released on bail. The

investigation in this case was handed over to the Assistant Sub

Inspector of Police, Cheruthuruthy Police Station and he

prepared Ext.P2 scene mahazar. After completing investigation

final report was filed under Section 379 of the IPC. Crl.R.P.No.956 of 2010

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3. On the appearance of the accused before the

trial court, after having heard both sides, charge under

Section 379 of the IPC was framed and the charge was

read over to the accused to which he pleaded not guilty.

4. When the case came up for evidence PWs.1 to 6

were examined and marked Exts.P1 to P4 on the

prosecution side. On closing the evidence of the

prosecution, the accused was questioned under Section

313(1)(b) of the Cr.P.C. He denied all the incriminating

circumstances appearing in the evidence against him.

However, no defence evidence was adduced.

5. On appreciation of the evidence, the accused was

found guilty of the offence under Section 379 of the IPC and

convicted and sentenced to undergo rigorous imprisonment for

a period of one year. The accused preferred an appeal before

the appellate court. The appeal was dismissed confirming the

conviction and sentence rendered by the trial court. Hence the

revision petitioner is before this Court. Crl.R.P.No.956 of 2010

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6. Heard the learned counsel for the revision

petitioner and the learned Senior Public Prosecutor for the

respondents.

7. The learned counsel for the revision petitioner

contended that the conviction under Section 379 of the

IPC is not sustainable for unauthorised removal of sand

which is exhaustively covered by the Kerala Minor Mineral

Concession Rules, 1967. According to the learned counsel

for the revision petitioner, the removal of sand was

covered by the Central Act until the enactment of the

State Rules in 1967 and the 1967 Rules was replaced by

the Kerala Protection of River Banks and Regulation of

Removal of Sand Act, 2001. Elaborating on the

submission, the learned counsel for the revision petitioner

contended that, by virtue of Section 3(C) of the Central

Act, 1957, sand is a minor mineral and Section 15(1) of

the Central Act, 1957 gives power to the State to make

rules to regulate the affairs regarding the minor mineral Crl.R.P.No.956 of 2010

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including sand. Thus, it was submitted that the Central Act

would only prevail for a limited period with regard to

minor minerals. According to the learned counsel, upon

State legislation under Section 15(1), it shall be the

exhaustive and exclusive law with regard to removal of

sand. In short, it was submitted that the Kerala Minor

Mineral Concession Rules, 1967 came into force and

thereby the Central Act was no more applicable with

regard to minor minerals. The learned counsel for the

revision petitioner further submitted that the alleged

offence in question took place before the enactment of

Kerala Protection of River Banks and Regulation of

Removal of Sand Act, 2001 (18 of 2001) and the Rules

2002 framed thereunder and therefore, the police was

incompetent to set the criminal law in motion in violation

of Kerala Minor Mineral Concession Rules, 1967. Added to

this, the learned counsel for the revision petitioner further

contended that on merits also the offence alleged against Crl.R.P.No.956 of 2010

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the accused under Section 379 of the IPC has not been

proved in evidence.

8. Per contra, the learned Senior Public Prosecutor

contended that in the light of relevant provisions of the

Mines and Minerals (Development and Regulation) Act,

1957 (for short 'MMDR Act') the ingredient 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, according to the learned

Senior Public Prosecutor, for the commission of an offence

under Section 379 of 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. The learned Senior Public

Prosecutor further contended that both the trial court and

the appellate court concurrently entered a finding that the Crl.R.P.No.956 of 2010

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accused committed the offence under Section 379 of the

IPC and unless the findings are perverse, the revisional

court would not be justified in reversing the same in

exercise of powers under Section 401 of the Cr.P.C.

9. Relying on Sharat Babu Digumarti v. Govt. of

NCT of Delhi [AIR 2017 SC 150] the learned counsel

for the revision petitioner contended that once the special

provisions having the overriding effect to cover a criminal

act and the offender, he gets out of the net of the Indian

Penal Code. According to the learned counsel for the

revision petitioner, Kerala Minor Mineral Concession Rules,

1967 which was in force on the date of commission of the

offence i.e., on 06.06.2001 debars PW5 from initiating

prosecution under Section 379 of the IPC. The legal

position in this regard has been exhaustively discussed in

State of NCT of Delhi v. Sanjay [AIR 2015 SC 75],

Kanwar Pal Singh v. The State of Uttar Pradesh and

Others [MANU/SC/1776/2019], Jayant v. The State of Crl.R.P.No.956 of 2010

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Madhya Pradesh [2020 (6) KLT 849] and Sujith v. State

of Kerala & others [2012 (2) KHC 275]. In view of the

above decisions, it is settled principle of law that the

offence under the MMDR Act or any Rule made thereunder

and the offences under the IPC are distinct and separate

offences. Hence the contentions raised in this regard are

apparently unsustainable. In Sharat Babu Digumarti's

case (supra) the Apex Court upheld the decision of the

High Court finding that prima facie case was made out

under Section 292 of the IPC, but it expressed the opinion

that the petitioner in the said case was not liable to be

proceeded under Section 292 of the IPC and, accordingly,

he was discharged of the offences under Sections 292 and

294 of the IPC. However, the petitioner was prima facie

found to have committed offence under Section 67 read

with Section 85 of the IT Act and the trial court was

directed to proceed to the next stage of passing of order

of charge uninfluenced by the observations made in the Crl.R.P.No.956 of 2010

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order of the High Court. The facts and circumstances in

the said case are entirely different. In Jayant's case

(supra), the Apex Court held that in case where the

violator is permitted to compound the offences on

payment of penalty as per sub section 1 of Section 23A,

considering sub section 2 of Section 23A 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 rule made thereunder so

compounded. The Apex Court clarified that the bar under

sub section 2 of Section 23A of the MMDR Act shall not

affect any proceedings for the offences under the IPC,

such as, Sections 379 and 414 of the IPC and the same

shall be proceeded with further. In view of the dictum laid

down therein, the Kerala Minor Mineral Concession Rules,

1967 which was in force on the date of commission of the

offence is not a bar in initiating prosecution under Section

379 of the IPC. Contra interpretation would defeat the Crl.R.P.No.956 of 2010

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decision of the Apex Court in Sanjay's case (supra).

Hence, the contention raised by the learned counsel for

the revision petitioner is unsustainable in law.

10. In order to constitute the offence of theft, it is

essential on the part of the prosecution to prove that the

accused removed the sand out of the possession of the

Government dishonestly and without the consent of the

Government. As per the prosecution allegation the offence

was detected by PW5 the Sub Inspector of Police,

Cheruthuruty Police Station at Painkulam kadavu at 7.30

am on 06.06.2001. PW5 adduced evidence to show that

the accused was arrested from the scene of occurrence.

However, the prosecution had not marked the arrest

memo which is indispensable to prove the arrest of the

accused from the scene of occurrence. Unless and until

the presence of the accused was established at the scene

of occurrence in connection with theft of soil on

06.06.2001 at 7.30 am and is proved, it is difficult to Crl.R.P.No.956 of 2010

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believe that PW5 arrested the accused from the scene of

occurrence as alleged by the prosecution. As per Ext.P1

seizure mahazar prepared at 7.45 am on 06.06.2001 at

the scene of occurrence, a mini lorry and an iron shovel

were seized by the police. However, the said iron shovel

was neither identified nor produced during trial. Further

the prosecution failed to tender any evidence to connect

the accused with the lorry bearing Tamil Nadu registration

No.TN 51 - 2 - 0216. No evidence was adduced to show

that the accused was the owner of the lorry seized at the

time of occurrence. There was also no evidence to show

that the accused hired the said lorry from someone for

illegal transportation of sand.

11. The trial court mainly relied on the evidence of

PW1 the Secretary of Local Authority in which the

Painkulam kadavu, Bharathapuzha river is vested to prove that

on the date of seizure there was a ban of taking sand from

the Painkulam kadavu as per a judgment of this Court. Crl.R.P.No.956 of 2010

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PW1 further stated that on the alleged date the Panchayat

had not issued any pass for taking or removing sand from

the kadavu. On going through the evidence of PWs.1, 3

and 5, there is nothing on record to indicate that the

accused actually removed sand from the kadavu and

removed the same with a dishonest intention to commit

theft as defined under Section 378 of the IPC. As per

Ext.P1 seizure mahazar PW5 seized one lorry bearing No.

TN 51-2-0216 and one iron shovel. No enquiry was

conducted regarding lorry. The iron shovel was not

produced before court. When PW1 was examined before

court, no document was produced to substantiate the fact

that what was covered under Ext.P2 scene mahazar was

in respect of an area belonging to the Local Authority. The

only allegation is that the sand was removed from the

kadavu. PW2 one of the signatories in Ext.P1 seizure

mahazar turned hostile to the prosecution stating that he

did not witness the occurrence as stated by the Crl.R.P.No.956 of 2010

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prosecution. However, he stated that he had put signature

in Ext.P1 mahazar. In cross-examination he added that as

directed by the police he had put his signature in a blank

paper. There was no evidence in this case to hold that the

removal of sand was done by the accused with a view to

cause any wrongful gain or wrongful loss to the local

Government institutions. When dishonest intention is not

alleged and proved, there is no theft.

12. Both the trial court and the appellate court

convicted and sentenced the accused under Section 379 of

the IPC without considering the above legal aspects. The

findings are against the evidence. Hence, the concurrent

conviction and sentence are liable to be set aside.

In the result, the criminal revision petition is allowed.

The revision petitioner/accused is found not guilty of the

offence punishable under Section 379 of the IPC and he is

acquitted thereunder. Cancelling his bail bond, this Court

directs that he be set at liberty. If any fine amount is Crl.R.P.No.956 of 2010

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deposited by the revision petitioner/accused during the

pendency of this revision, pursuant to an interim order

passed by this Court, the same shall be refunded to the

revision petitioner/accused in accordance with rules.

Pending applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj