Madras High Court
G.Sugumaran @ Sukumaran vs The State Represented By on 28 March, 2022
Crl.O.P.(MD)No.1747 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 28.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.1747 of 2022
and
Crl.M.P(MD)Nos.943 & 1267 of 2022
G.Sugumaran @ Sukumaran ... Petitioner/Sole Accused
Vs.
1.The State Represented by,
The Sub-Inspector of Police,
Aralvoimozhi Police Station,
Kanyakumari District.
(In Crime No.428 of 2021). ... 1st Respondent/Complainant
2.Kalayani,
Village Administrative Officer,
Thazhakudi,
Kanyakumari District. ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records pertaining to the case registered in First
Information Report in Crime No.428 of 2021, dated 08.07.2021 on
the file of the first respondent and quash the same as illegal.
For Petitioner : Mr.G.Anto Prince
For R – 1 : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
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Crl.O.P.(MD)No.1747 of 2022
ORDER
This Criminal Original Petition has been filed to quash the FIR
registered in Crime No.428 of 2021 on the file of the first
respondent.
2.Based on the complaint lodged by the second respondent,
the first registered the F.I.R in Crime No.428 of 2021 for the
offences under Section 379 of I.P.C and Section 21(1) of the Mines
and Minerals (Development and Regulation), Act, 1957 (hereinafter
referred to as 'the MMDR Act') alleging that on the complaint
received from the Chief Minister Special Cell, the second respondent
inspected the land comprised in Survey No.447/2 to an extent of
0.49.50 hectares belonged to the petitioner and he runs a brick kiln
in the said land and adjacent to his land, there is a Government odai
poramboke comprised in Survey No.447/1. The second respondent
found that the sand measuring 7020 cubic meter feet was
accumulated from the Government odai poramboke in Survey
No.447/1.
3.The learned counsel appearing for the petitioner would
submit that the petitioner had registered his brick kiln and having
manufacturing unit in his own patta land to an extent of more than
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Crl.O.P.(MD)No.1747 of 2022
5 acres of patta land. He had got all prior permission in accordance
with law to run the brick kiln manufacturing unit, as per the
proceedings in ROC.No.77/G & M/2010, dated 09.04.20210. Since
the petitioner was granted permission, he had applied for renewal of
brick kiln registration certificate in respect of the land comprised in
Survey No.629/3 of Thazhakudi Village, Thovalai Taluk as per Rule
19(2) of the Tamil Nadu Minor Mineral Concession Rules, 1959.
Accordingly, his registration certificate was renewed and the lease
period was also extended from 11.09.2020 to 10.09.2023.
Therefore, the petitioner never committed any offence as alleged in
the F.I.R and the ingredients are not at all constituted any of the
offence as alleged by the prosecution. The petitioner did not take
any single unit of sand in the Government odai poramboke land
comprised in Survey No.447/1. Any offence committed under the
MMDR Act, cognizance can be taken by a Court only on a complaint
made in writing by a person authorized in this behalf and as such,
the first respondent has no jurisdiction to investigate the crime
registered under the MMDR Act. The MMDR Act is being a Special
Act, a statutory duty under Section 22 of the Act which makes the
offences to be taken into cognizance only in the form of a private
complaint. In the case on hand, the second respondent, who is
being a Village Administrative Officer, lodged the complaint and the
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Crl.O.P.(MD)No.1747 of 2022
Sub-Inspector of Police attached to the first respondent registered
the case. As per G.O.Ms.No.114, Industries (MMC-1), dated
18.09.2000, the person authorized to make the complaint would be
the Revenue Officer not below the rank of the Inspector of Police.
Therefore, the present F.I.R has been registered by the
Sub-Inspector of Police and he has no jurisdiction to register any
complaint under the MMDR Act.
4.The learned counsel appearing for the petitioner would
further submit that the F.I.R do not disclose a cognizable offence
justifying an investigation by police officers under Section 156(1) of
Cr.P.C. It constitute only a non-cognizable offence and as such, no
investigation is permitted by the first respondent without prior order
from the jurisdictional Magistrate as contemplated under Section
155(2) of Cr.P.C. In support of his contention, he relied upon the
Judgment of this Court reported in 2019 SCC Online Mad 16632
in the case of Elangeswaran and others Vs. State represented
by the Inspector of Police and another and this Court held that
in view of the bar under Section 22 of the MMDR Act, the police
officer has no power to investigate in respect of the offence under
Section 4(1-A) r/w 21 of the MMDR Act and the special enactment
will over ride the general provisions of law and hence merely
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Crl.O.P.(MD)No.1747 of 2022
because Section 379 of I.P.C was also included in the F.I.R, it cannot
be said that the police has got the jurisdiction to investigate the
offence. Further held that as per G.O.Ms.No.114, Industries (MMC.I)
Department, dated 18.09.2006, wherein the Inspector of Police had
been authorized to file a complaint under Section 22 of the MMDR
Act. Hence, it will be lawful for the police concerned, as an
authorized person, to file a complaint under Section 22 of the said
Act before the jurisdictional Magistrate upon which the Magistrate
may take cognizance. The registration of F.I.R by the police officer
for the offence under the MMDR Act is not permissible under the
law. The final report filed by the police officer cannot be taken
cognizance by the Magistrate for the offence under the MMDR Act.
5.Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Criminal Side) appearing for the
first respondent and perused the entire materials available on
record.
6.On a perusal of the F.I.R revealed that the petitioner owned
a patta land comprised in Survey No.447/2 to an extent of 0.49.50
hectares and adjacent to his patta land, there is a Government odai
poramboke land comprised in Survey No.447/1. The petitioner in his
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Crl.O.P.(MD)No.1747 of 2022
patta land runs a brick kiln unit under valid licence and permission.
Whereas it was found that the sand measuring 7020 cubic meter
feet was accumulated from the Government odai poramboke in
Survey No.447/1. On the complaint received from the Chief
Minister's Special Cell, the second respondent was directed to
inspect the odai poramboke land and found the illegalities
committed by the petitioner herein. Accordingly, she lodged a
complaint and the same has been registered by the first respondent
for the offences under Section 379 of I.P.C and Section 21(1) of the
MMDR Act as against the petitioner.
7.Further, on a perusal of G.O.Ms.No.114, Industries (MMC.I)
Department, dated 18.09.2006, revealed that the police personnel
not below the rank of Inspector of Police has no power to
investigate in respect of the offence under sub-Section (4) of
Section 21 of the the MMDR Act, within their respective jurisdiction.
Further, as per G.O.Ms.No.12, Industries (MMC.1) Department,
dated 02.02.2009, orders were issued under Section 22 of the
MMDR Act authorizing the District Forest Officers and the police
personnel not below the rank of Inspector of Police, to make
complaint in writing by way of an affidavit to the Court of competent
jurisdiction for any offence punishable under the said Act or any
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Crl.O.P.(MD)No.1747 of 2022
Rules made thereunder, in respect of cases falling within their
jurisdiction.
8.It is relevant to extract the provision under Section 155(4)
of Cr.P.C, which reads as follows:-
“155. Information as to non-cognizable cases and
investigation of such cases.—
(4) Where a case relates to two or more offences
of which at least one is cognizable, the case shall be
deemed to be a cognizable case, notwithstanding that
the other offences are non-cognizable.”
9.In the case on hand, as directed by the Chief Minister's
Special Cell, the second respondent was authorized to inspect the
place of occurrence and found that the petitioner illegally mined to
the tune of 7020 cubic meter of sand in the odai poramboke land
comprised in Survey No.471/1 situated at Thazhakudi Village,
Thovalai Taluk. That apart, only in the presence of Tahsildar and
Surveyor, the second respondent inspected the place of occurrence
and on their direction lodged a complaint. Therefore, she is the
competent person to lodged a complaint before the first respondent.
The first respondent being the Sub-Inspector of Police, who
registered the case for the offence under Section 379 of I.P.C and
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Crl.O.P.(MD)No.1747 of 2022
Section 21(1) of the MMDR Act Immediately, after registration of
F.I.R, for investigation purpose, the F.I.R has been sent to the
Inspector of Police, Aralvoimozhi Police Station, Kanyakumari
District for investigation. Whereas in the Judgment cited by the
learned counsel for the petitioner, the sub-Inspector of Police laid
charge-sheet and as such, this Court held that charge-sheet laid by
the Sub-Inspector of Police is without jurisdiction. Further, as stated
supra, as per Section 155(4) of Cr.P.C, the first respondent can
register the case for the non-cognizable offence along with
cognizable offence. Therefore, the above judgment cited by the
learned counsel for the petitioner is not applicable to the case on
hand.
10.In this regard it is relevant to rely upon the Judgment of
the Honourable Supreme Court of India in 2014 (9) SCC 772 in
the case of State (NCT of Delhi) Vs. Sanjay. The Honourable
Supreme Court of India decided the appeals preferred against the
conflicting Judgments of the Delhi High Court, Gujarat High Court,
Kerala High Court, Calcutta High Court, Madras High Court and
Jharkhand High Court on the question whether a person can be
prosecuted for the offences under Sections 379/114 and other
provisions of the Indian Penal Code on the allegations of illegal
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Crl.O.P.(MD)No.1747 of 2022
mining in view of Section 22 of the Mines and Regulation Act. The
Honourable Supreme Court of India held 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 river bed. 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 repercussions as mentioned hereinabove.
It will not only change the river hydrology but also will
deplete the ground water 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
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Crl.O.P.(MD)No.1747 of 2022
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.
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 laible to be punished for committing such
offence under Sections 378 and 379 of the Indian 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
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Crl.O.P.(MD)No.1747 of 2022
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, 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.”
The above case cited in the case of Kanwar Pal Singh Vs. The
State of Uttar Pradesh and others reported in
Manu/SC/1776/2019, in which the Honourable Supreme Court of
India held that there is no bar on the Court from taking cognizance
of the offence under Section 379 of I.P.C. The violation of Section 4
being a cognizable offence, the police could have always investigate
the same, there being no bar under the Mines Regulation Act, unlike
Section 13(3)(iv) of the TOHO Act.
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Crl.O.P.(MD)No.1747 of 2022
11.Therefore, in a case where there is a theft of sand and
gravel from the Government land, the police can register a case,
investigate the same and submit a final report under Section 173 of
Cr.P.C before the Magistrate having jurisdiction for the purpose of
taking cognizance as provided in Section 190(1)(d) of the Code of
Criminal Procedure.
12.It is seen from the First Information Report that there are
specific allegations as against the petitioner, which have to be
investigated in depth. Further the FIR is not an encyclopedia and it
need not contain all facts. Further, it cannot be quashed in the
threshold. This Court finds that the FIR discloses prima facie
commission of cognizable offence and as such, this Court cannot
interfere with the investigation. The investigating machinery has to
step in to investigate, grab and unearth the crime in accordance
with the procedures prescribed in the Code.
13.It is also relevant to rely upon the judgment of the Hon'ble
Supreme Court of India passed in Crl.A.No.255 of 2019 dated
12.02.2019 - Sau. Kamal Shivaji Pokarnekar vs. the State of
Maharashtra & ors., which reads as follows:-
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Crl.O.P.(MD)No.1747 of 2022
"4. The only point that arises for
our consideration in this case is whether
the High Court was right in setting aside
the order by which process was issued. It
is settled law that the Magistrate, at the
stage of taking cognizance and
summoning, is required to apply his
judicial mind only with a view to taking
cognizance of the offence, or in other
words, to find out whether a prima facie
case has been made out for summoning
the accused persons. The learned
Magistrate is not required to evaluate the
merits of the material or evidence in
support of the complaint, because the
Magistrate must not undertake the
exercise to find out whether the materials
would lead to a conviction or not.
5. Quashing the criminal
proceedings is called for only in a case
where the complaint does not disclose
any offence, or is frivolous, vexatious, or
oppressive. If the allegations set out in
the complaint do not constitute the
offence of which cognizance has been
taken by the Magistrate, it is open to the
High Court to quash the same. It is not
necessary that a meticulous analysis of
the case should be done before the Trial
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Crl.O.P.(MD)No.1747 of 2022
to find out whether the case would end in
conviction or acquittal. If it appears on a
reading of the complaint and
consideration of the allegations therein, in
the light of the statement made on oath
that the ingredients of the offence are
disclosed, there would be no justification
for the High Court to interfere.
6.........
7.........
8........
9. Having heard the learned Senior
Counsel and examined the material on
record, we are of the considered view
that the High Court ought not to have set
aside the order passed by the Trial Court
issuing summons to the Respondents. A
perusal of the complaint discloses that
prima facie, offences that are alleged
against the Respondents. The correctness
or otherwise of the said allegations has to
be decided only in the Trial. At the initial
stage of issuance of process it is not open
to the Courts to stifle the proceedings by
entering into the merits of the
contentions made on behalf of the
accused. Criminal complaints cannot be
quashed only on the ground that the
allegations made therein appear to be of
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Crl.O.P.(MD)No.1747 of 2022
a civil nature. If the ingredients of the
offence alleged against the accused are
prima facie made out in the complaint,
the criminal proceeding shall not be
interdicted."
14.In view of the above discussions, this Court is not inclined
to quash the First Information Report. Hence, this Criminal Original
Petition stands dismissed. Consequently, connected Miscellaneous
Petitions are closed.
28.03.2022
Internet :Yes
Index :Yes / No
ps
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Crl.O.P.(MD)No.1747 of 2022
G.K.ILANTHIRAIYAN, J.
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
1.The Sub-Inspector of Police,
Aralvoimozhi Police Station,
Kanyakumari District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Order made in
Crl.O.P(MD)No.1747 of 2022
28.03.2022
https://www.mhc.tn.gov.in/judis
