Allahabad High Court
Izhar vs State Of U.P. And Anr on 17 October, 2019
Author: Vivek Kumar Singh
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 37503 of 2019 Applicant :- Izhar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Vijay Prakash Chaturvedi Counsel for Opposite Party :- G.A. Hon'ble Vivek Kumar Singh,J.
Heard Mr. Vijay Prakash Chaturvedi, learned counsel for the applicant, Mr. Sanjay Singh, learned Additional Government Advocate-I appearing on behalf of State and perused the record with the assistance of learned counsels for the parties.
The present 482 Cr.P.C. application has been filed for quashing the charge sheet dated 06.04.2017 as well as entire criminal proceeding of Case No. 233/2019 (State Vs. Ashok Yadav and others) arising out of Case Crime No. 748 of 2017, under sections 379, 411 IPC & 4/21 Mines and Mineral (Development and Regulation) Act -1957, Police Station Dhebaruwa, District Siddharth Nagar.
Brief Facts of the case are that the opposite party no.2 lodged a first information report against the applicant and one another person on 23.02.2017 at about 12.15 hours regarding the incident dated 23.02.2017 at about 10.30 hours which was registered as Case Crime No. 748 of 2017, under section 379, 411 IPC and 4/21 Mines & Mineral (Development and Regulation) Act-1957, Police Station Dhebaruwa, District Siddharth Nagar. The opposite party no. 2 Ravindra Kumar Gautam posted as Station House Officer, P.S. Dhebaruwa, District Siddharth Nagar alleging inter alia that on 23.02.2017 he along with Sub Inspector Paras Nath Singh and constable Sri Dharmendra Yadav and constable Sri Surendra Yadav and Constable Sri Ankit Singh with Bolero Government Jeep No. U.P. 55 G-0126 and Head Constable Ramesh Shukla for making peace where on the patrolling duty, when they reached village Pakdihwa, then through mukhbir received information near village Maniyahwa illegal mining of soil was made by the applicant through J.C.B. Machine and the aforesaid soil supplied to the different brick fields and on the information two tractor and trolleys loaded with soil catches and Ashok Yadav who was driver arrested and recovery memo was prepared.
Submissions of the learned counsel for the applicant is that Mines and Minerals (Development and Regulation) Act, 1957 is a Special Act, therefore procedure provided under the Special Act shall prevail over the general procedure provided under code of criminal procedure. Further Section 22 of the aforesaid Act of 1957 provides that 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, therefore, neither first information report could be lodged under Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 along with offences under I.P.C. nor applicant can be prosecuted on the basis of impugned charge sheet dated 06.04.2017.
It is further submitted that the Judicial Magistrate concerned has committed legal error in taking cognizance on 17.07.2019 on the impugned charge sheet for the offence under Sections 379, 411 IPC & 4/21 Mines & Mineral (Development and Regulation) Act 1957.
It is further submitted that the applicant cannot be prosecuted and punished for one offence under two different Acts (I.P.C. as well as M.M.D.R. Act ) and the prosecution of the applicant is barred by the principle of "double Jeopardy".
Apart from the aforesaid legal submissions, it is also submitted that the present case is a case of no injury. Applicants have no criminal antecedents and they have falsely implicated in this case for no fault of theirs, as nothing has been recovered from the possession of the applicant, which shows that they were not indulged in an illegal mining.
The last submissions of learned counsel for the applicant is that no prima facie offence against the applicant is made out under the aforesaid sections of Indian Penal Code as well as Mines and Minerals (Development and Regulation) Act, 1957, and in view of Section 22 of the aforesaid Act 1957, the impugned charge sheet as well as order taking cognizance for the offence under M.M.D.R. Act and I.P.C. are liable to be quashed by this Court.
Per contra, learned Additional Government Advocates refuting the aforesaid submissions advanced on behalf of the applicants vehemently supporting the prosecution case and submits that Prima facie cognizable offence under Sections 379, 411 IPC & 4/21 Mines & Mineral (Development and Regulation) Act 1957 is made out against the applicant. There is no specific bar that first information report cannot be lodged for the offence under the Mines and Minerals (Development and Regulation) Act 1957 along with other Acts, if cognizable offence is made out. In this case, the first information report dated 23.02.2017 has been lodged for distinct offences under the Indian Penal Code as well as Mines and Minerals (Development and Regulation) Act, 1957. The Magistrate concerned has not committed any illegality in taking cognizance on the charge sheet dated 06.04.2017. The relief as claimed by the applicants cannot be granted under the law and the present application is liable to be dismissed.
After having heard learned counsels for the parties at length, the Court feels that before delving into the issue, it would be apposite to mention here the relevant provisions relating to Mines and Minerals (Development and Regulation) Act, 1957, which reads as under :-
Section 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 this sub-section shall affect 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 Exploration and Research of the 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 clause (45) of section 2 of the company act 2013, (18 of 2013) and any such entity that may be notified for this purpose by the central government.
Provided also that nothing in this Sub-section shall apply to any mining lease (whether 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 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.
Section 21 Penalties.
(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years, or 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 an 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.
(4A) 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 raises, 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, (2of 1974) an offence under sub-section (1) shall be cognizable.
Section 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 the State Government.
Section 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 rules made thereunder or any document or thing in relation to such mineral is secreted in any place [or vehicle, he may 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.
The controversy related to issue involved in this case also arose for consideration in other High Courts, therefore, it would be useful to refer the detail about some of the judgments.
1) The Delhi High Court in Criminal Appeal No. 499 of 2011 Sanjay vs State (2009) 109 DRT 594. 2) The Madras High Court in the case of Sengol, Charles and K. Kannan, etc. vs. State Rep. by Inspector of Police 2012 Cri. L.J. 1705. 3) The Calcutta High Court in the case of Smt. Seema Sarkar v. The State (1995) 1 CalLT 95. 4) The Hon'ble Apex Court in the case of M.C. Mehta Vs. Kamal Nath and Ors. (1997) 1 SCC 388. 5) The Hon'ble Apex Court in the case of Intellectuals Forum Vs. State of A.P. (2006) 3 SCC 549. 6) The Hon'ble Apex Court in the case of Manohar Lal Sharma Vs. Principal Secretary (2014) 2 SCC 532. 7) The Hon'ble Apex Court in the case of Maqbool Hussain Vs. State of Bombay AIR 1953 SC 325.
The doctrine of double jeopardy has been gathered from the Article 20 (2) of the Constitution of india which provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Article 20(2) 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 are not barred if the ingredients of the two offences are distinct.
The rule against double jeopardy is stated in the maxim "nemo debet bis vexari pro una et eadem causa". It is a significant basic rule of Criminal Law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code, which reads as under :-
"(i) Section 26 of the General Clauses Act provides:-
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 (emphasis supplied).
(ii) Section 300 (1) of the CrPC provides:-
A person who has once 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 sub-section (1) of Section 221 or for which he might have been convicted under sub-section (2) thereof." (emphasis supplied)
(iii) Section 71 of IPC provides:-
Where anything which is an offence is made-up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."
After going through the aforesaid provisions, it is apparently clear that all the provisions emplay the expression "same offence". The leading authority of the Apex Court in which the rule against double jeopardy came to be dealt with and interpreted by reference to Article 20(2) of the Constitution is the Constitution Bench decision in case of Maqbul Hussain Vs. State of Bombay AIR 1953 SC 325, wherein it has been held that the offences are distinct, there is no question of the rule as to double jeopardy being extended and applied. In State of Bombay Vs. S.L. Apte & Another, AIR 1961 SC 578, the Constitution Bench of Apex Court held that the trial and conviction of the accused u/s 409 IPC did not bar the trial and conviction for an offence u/s 105 of Insurance Act because the two were distinct offences constituted or made up of different ingredients though the allegations in the two complaints made against the accused may be substantially the same. In Om Prakash Gupta Vs. State of UP, AIR 1957 SC 458 as well as The State of Madhya Pradesh v. Veereshwar Rao AIR 1957 SC 592, it was held by the Apex Court that prosecution and conviction or acquittal u/s 409 of IPC do not debar the accused being tried on a charge u/s 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content. In Roshan Lal & Ors. Vs. State of Punjab AIR 1965 SC 1413, the fact was that the accused had caused disappearance of the evidence of two offences u/s 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences u/s 201 IPC. In the said case it was held by the Apex Court that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences u/s 201 IPC though it would be appropriate not to pass two separate sentences."
Now, the question is whether the ingredients of Section 378 of IPC are similar to that of the ingredients of Section 21 of the Mines and Minerals Act. As I have already mentioned, Section 21(1) of the Mines and Minerals (Development and regulation) Act 1957 states that whoever contravenes the provisions of sub-sections (1) or (1A) of Section 4 shall be punished with imprisonment or with fine or with both. Sub Section (1) of Section 4 states that no person shall undertake any reconnaissance, prospecting or mining operation in anyarea, except under and in accordance with the terms and conditions of are connaissance permit or of a prospecting licenses or, as the case may be, of a mining lease granted under this Act and the rules made hereunder. Sub Section (1A) of Section 4 states that "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 hereunder. A cursory comparison of these two provisions with Section 378 of IPC would go to show that the ingredients are totally different. The contravention of the terms and conditions of mining lease, etc. constitutes an offence punishable under Section 21 of the Mines and Minerals (Development and regulation) Act 1957, whereas dishonestly taking any movable property out of the possession of a person without his consent constitutes theft. Thus, it is undoubtedly clear that the ingredients of an offence of theft as defined in Section 378 of IPC are totally different from the ingredients of an offence punishable under Section 21(1) r/w Section 4(1) and 4(1A) of the Mines and Minerals (Development and regulation) Act 1957.
The Apex Court in case of The Institute of Chartered Accountants Vs. Vimal Kumar surana's 2011(1) SCC 534 has held tha there can well be a prosecution for an offence under Section 379 of IPC as well as under Section 21 of the Mines and Minerals Act simultaneously and the principle of double jeopardy shall not be a bar for such simultaneous prosecution.
Here it is relevant to deal, the conditions requisite for initiation of proceedings as dealt with in Chapter XIV of the Code of Criminal Procedure. An offence under section 379 of IPC is admittedly cognizable and, therefore, in respect of theft of sand from Government land, it will be lawful for the police to register a case, investigate the same and to lay a police report under Section 173 of the Code, upon which the jurisdictional Magistrate will be well within his jurisdiction to take cognizance as provided in Section 190(1)(b) of the Code of Criminal Procedure. To this extent, there is no conflict between the Mines and Minerals (Development and regulation) Act 1957 and the Code of Criminal Procedure and thus question of one overriding the other does not arise. Therefore, in such cases, where the cases have been registered only under the provisions of IPC, more particularly, under Section 379 of IPC in respect of theft of sand, the question of quashing the FIRs or any subsequent proceedings does not arise at all notwithstanding any thing contained in section 2 of the Mines and Mineral (Development and Regulation) Act, 1957.
In Halsbury's Laws of England, under the heading 'Principles of Criminal Liability' "Crime" is defined as follows :-
"A crime is an unlawful act or default, which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment."
In Criminal Procedure Code 'Offence' is defined in Section 2(n) as follows :-
"Offence means any act or omission made punishable by any law for the time being in force .........."
From aforesaid definitions, it appears that an unlawful act or omission is 'per se' punishable under one or more laws and the subsequent prosecution is merely' a step to bring home this liability to the offender under any existing procedure. In other words, it is the illegal act or omission which is primarily punishable and the penal section of any particular statute is merely a name under which it is prosecuted before a court of law for that purpose, what is punishable is not the name given to it by any section of a penal statute, but the offence defined in that section.
The issue whether a person can be prosecuted for the offence under two different Acts along with other connected issues have also been considered and settled by the Apex Court in the case of State (NCT Of Delhi) vs Sanjay; 2014 (9) SCC 772 in paragraphs No. 69,70, 71,72 and 73 of the said judgment.
One of the issues involved in this case also considered by the Division Bench of this Court in case of Mahendra Kumar Yadav and another Vs. State of U.P. 2014 SCC OnLine All 10026, wherein FIR was challenged. In the said case the FIR was lodged for alleged violation of provisions of Mines & Minerals (Development & Regulation) Act and U.P. Mines Minerals (concession)Rules. In that case the petitioners were not attributed with the charge of commission of an offence under Indian Penal Code. On the said factual situation, this Court quashed the FIR with the observation that quashing of writ petition will not come in the way of the authorities concerned to file a complaint under Section 22 of Mines & Minerals(Development & Regulation) Act 1957.
At this stage this Court would like to refer the judgment of Apex Court in Lalita Kumari Vs. Govt. of U.P. and others 2014 (2) SCC 1. In the said case the Apex Court has held that it is mandatory on the part of the police officer to register the crime invoking Section 154 of Cr.P.C. if the information discloses the commission of a cognizable offence and no preliminary enquiry is permissible in such situation and if the information does not disclose a cognizable offence but indicates the necessity for an enquiry, a preliminary enquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not.
So far as argument advanced on behalf of the applicants that no prima facie offence under sections 379, 411 IPC & 4/21 Mines and Mineral (Development and Regulation) Act -1957 is made out against the applicant is concerned, this Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sprangly, only in such a appropriate cases, where uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage. It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicant for the offences under Indian Penal Code is not liable to be quashed.
In view of above, this Court is of the view that so far the cognizance taken by the Judicial Magistrate concerned on the impugned charge-sheet dated 06.04.2017 for the offences under the Indian Penal Code is concerned, it cannot be said to be illegal and without authority, but so far as the cognizance taken for the offence under the Mines and Minerals (Development and Regulation) Act on the impugned charge-sheet dated 06.04.2017 is concerned, the same is not liable to be sustained in the eyes of law on account of categorical bar contained in Section 22 of the the Mines and Minerals (Development and Regulation) Act 1957.
Accordingly further proceeding of criminal case no. 233 of 2019 pursuant to impugned charge-sheet dated 06.04.2017 arising out of case no. 748/17 so far as offence under section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 only is hereby quashed with liberty to the prosecution /officer concerned to file complaint against the applicants under the Mines and Minerals (Development and Regulation) Act 1957.
It is made clear that so far as order taking cognizance under Sections 379, 411 under Indian Penal Code are concerned, that has not been interfered by this Court and the concerned court below is at liberty to proceed in accordance with law against the applicants pursuant to charge-sheet dated 06.04.2017.
With the aforesaid observations and findings the application is disposed of.
Order Date :- 17.10.2019/Arti