Allahabad High Court
Abhishek Kukreti And 9 Others vs State Of U.P. And 3 Others on 9 August, 2023
Bench: Vivek Kumar Birla, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:160656-DB AFR Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 11966 of 2023 Petitioner :- Abhishek Kukreti And 9 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mahipal Singh Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Kripa Shankar Singh, learned Senior Counsel assisted by Sri Mahipal Singh, learned counsel for the petitioners and Sri Ratan Singh alongwith Sri Vibhav Ojha, learned AGA for the State.
2. Present petition has been filed seeking quashing of the first information report dated 28.04.2023, arising out of case crime no.85 of 2023, under sections 379, 411 IPC and Section 4/21 Mines and Minerals (Development and Regulation) Act, 1957, Police Station Nagina Dehat, District Bijnor. Further, the petitioners are seeking a direction in the nature of mandamus commanding the respondents to take appropriate action/departmental inquiry against the responsible respondents, who were involved in the proceeding of seizing of the vehicles concern as well as false arresting of said drivers in pursuance of the impugned first information report.
3. Sole submission of the learned counsel for the petitioners is that in view of Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to 'MMDR Act') the FIR could not have been registered as it provides that only a complaint could have been lodged by the authorized person.
4. In support, it is submitted that a Co-ordinate Bench of this Court on this ground itself in the same case crime no.85 of 2023 has granted interim order vide order dated 29.05.2023 passed in Criminal Misc. Writ Petition No.7806 of 2023 (Kalyan Singh and 8 Others vs. State of U.P. and 18 Others). The said interim order reads as under:-
"1. Heard learned counsel for the petitioners and learned A.G.A. for the State.
2. This writ petition has been preferred to quash the First Information Report dated 28.4.2023 being Case Crime No.85 of 2023, under Sections 379, 411 and 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, Police Station Nagina, District Bijnor with a further prayer not to arrest the petitioners.
3. Learned counsel for the petitioners relying upon section 22 of the Mines and Minerals (Development and Regulations) Act, 1957 has stated that the First Information Report itself could not have been registered.
4. Matter requires consideration.
5. Learned Standing Counsel appears for respondent nos.1, 2 and 3. Issue notice to respondent no.4 by registered post. Steps may be taken within ten days. At this stage, we are not issuing notices to respondent nos.5 to 19.
6. Respondent nos.1 to 4 may file their counter affidavits within a period of three weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
7. List thereafter.
8. Until further orders, no coercive action shall be taken against the petitioners."
(Emphasis Supplied)
5. It is further submitted that no cognizance can be taken by the Magistrate as per Clause 21(4) of the paragraph 21 of the judgment rendered in Jayant Vs. State of Madhya Pradesh, (2021) 2 SCC 670.
6. Per contra, learned AGA opposed the prayer for quashing of the first information report and submits that the present first information report is clearly maintainable in view of the judgment of Jayant (supra).
7. We have considered the rival submissions and perused the records. Interestingly, both sides have placed reliance on law laid down in Jayant (supra).
8. Shorn of details facts as contained in the FIR are that on 28.04.2023 at 11:35 pm, the respondent No.4 lodged first information report against unknown persons. It is alleged in the first information report that the complainant came to Police Station- Nagina Dehat for prevention of illegal mining. He accompanied by the Station House Officer of concerned Police Station alongwith other police personnels reached at Kho river on 28.04.2023 at 08:15 pm. The complainant found that continuous illegal mining was being done. Some JCBs, dumpers, and tractor were found on the spot, drivers whereof ran away from the spot after seeing the Police team. 11 dumpers were found on the spot of which 8 dumpers were full of minerals and 3 dumpers were empty and 6 tractors trolley were standing for taking minerals. The details of all the dumpers and tractor trolley are also mentioned in the impugned first information report. The FIR was filed against unknown persons as alleged accused ran away from the spot.
9. Admittedly, the petitioners are the owners of the concerned vehicles/dumpers found on the spot and seized by the police. It is alleged that the petitioners on being harassed by the police, moved applications before the Court concern and wanted reports were submitted by the police. It has been stated in the petition that all the petitioners are legally involved in transportation of minerals, having valid transit pass (Ravanna).
10. Before proceeding further it would be appropriate to take note of Section 22 and 23-A of the MMDR Act, 1952, which is quoted as under:-
"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."
23-A. Compounding of offences.-
Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify: Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith."
11. We find that the interim order that is being relied on by the learned counsel for the petitioners nowhere reflects that the judgment of Jayant (supra) was placed before the Co-ordinate Bench, therefore, the sole argument, placing reliance on the interim order dated 29.05.2023 quoted above that FIR could not be registered in the light of Section 22 of the MMDR Act, has no force. Admittedly, the aforesaid order of the Co-ordinate Bench is only an interim order and is not a final decision/order.
12. We, therefore, proceed to consider the argument of learned Senior Counsel independently of the interim order passed by the Co-ordinate Bench..
13. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 the Hon'ble Apex Court in paragraphs 60, 69, 72 and 73 has held as under :-
"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, waters 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.
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.
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, 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.
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 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."
(Emphasis Supplied)
14. The offence of illegal mining was clearly noticed by the Apex Court in the case of Jayant (supra) as well and it is only thereafter conclusion was drawn that the first information report involving offences under Indian Penal Code alongwith offences under MMDR Act is maintainable. Paragraphs 17, 18, 19, 20 and 21 of the said judgment reads as under:
17. Now so far as the submission on behalf of the private appellantsviolators that in view of the fact that violators were permitted to compound the violation in exercise of powers under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellantsviolators paid and therefore the bar contained in subsection 2 of Section 23A of the MMDR Act will be attracted.
17.1 Section 23A as it stands today has been brought on the Statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Subsection 2 of Section 23A further provides that where an offence is compounded under subsection (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith . Thus, the bar under subsection 2 of Section 23A shall be applicable with respect to offences under the MMDR Act or any rule made thereunder.
17.2 However, the bar contained in subsection 2 of Section 23A shall not be applicable for the offences under the IPC, such as, Section 379 and 414 IPC. In the present case, as observed and held hereinabove, the offences under the MMDR Act or any rule made thereunder and the offences under the IPC are different and distinct offences.
17.3. Therefore, as in the present case, the mining inspectors prepared the cases under Rule 53 of the 1996 Rules and submitted them before the mining officers with the proposals of compounding the same for the amount calculated according to the concerned rules and the Collector approved the said proposal and thereafter the private appellants violators accepted the decision and deposited the amount of penalty determined by the Collector for compounding the cases in view of subsection 2 of Section 23A of the MMDR Act and the 1996 rules and even the 2006 rules are framed in exercise of the powers under Section 15 of the MMDR Act, criminal complaints/proceedings for the offences under Sections 4/21 of the MMDR Act are not permissible and are not required to be proceeded further in view of the bar contained in subsection 2 of Section 23A of the MMDR Act. At the same time, as observed hereinabove, the criminal complaints/proceedings for the offences under the IPC - Sections 379/414 IPC which are held to be distinct and different can be proceeded further, subject to the observations made hereinabove.
18. However, our above conclusions are considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay (supra), the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay (supra), reproduced hereinabove, we are of the opinion that the violators cannot be permitted to go scot free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature.
19. It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay (supra), excessive in stream sandandgravel mining from river beds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States.
20. Now so far as the appeal preferred by the State on the premise that the order passed by the learned Magistrate, confirmed by the High Court, affects the powers of the authorised person to compound the offence, in exercise of powers under Rule 53 of the 1996 Rules and Rule 18 of the 2006 Rules is concerned, the same is absolutely misconceived. By the order passed by the learned Magistrate, confirmed by the High Court, by no stretch of imagination, it can be said that directing to file the first information report/crime case for the offences under the IPC and even for the offences under the MMDR Act and the rules made thereunder, it affects any of the powers of the authorised person to compound the offence. In fact, in view of the decision of this Court in the case of Sanjay (supra), in which this Court has specifically observed and held that so far as the offence under the IPC is concerned, there shall not be any bar under Section 22 of the MMDR Act and when before the High Court the State supported the order passed by the learned Magistrate and rightly so and when the impugned judgment and order passed by the High Court is in favour of the State, as such, the State ought not to have filed the special leave petition/appeal.
"21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder visàvis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
21.1. that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In charge/SHO of the police station 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; and 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 concerned Incharge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer 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.
21.5. in a case where the violator is permitted to compound the offences on payment of penalty as per subsection1 of Section 23A, considering subsection 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. However, the bar under subsection 2 of Section 23A 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."
(Emphasis Supplied)
15. In view of the decisions made hereinabove it can be safely concluded that:
(i) bar under section 22 of the MMDR Act is not attracted in case FIR is lodged/registered for offences under IPC and even for offences under the MMDR Act and Rules made thereunder, the competent magistrate in exercise of power under Section 156(3) Cr.P.C. can order/direct registration of FIR;
(ii) 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 the Rules framed thereunder;
(iii) for commission of an offence under the IPC, on police report, the competent magistrate can take cognizance of the said offences WITHOUT awaiting the receipt of complaint that may be filed by the authorised officer regarding offences under the MMDR Act and Rules framed thereunder;
(iv) in a case where violator is permitted to compound the offences on payment of penalty as per Section 23A(1), in view of Section 23A(2) of the MMDR Act, there shall not be any proceeding or further proceedings against the offender in respect of offence under the MMDR Act or Rules framed thereunder;
(v) however, importantly bar under sub-section (2) of Section 23-A of the MMDR Act shall not affect and proceedings for the offences under the IPC such as sections 379, 411, 414 and the same shall be proceeded further;
(vi) the above decisions leave no reason to doubt that as per the law settled by the Hon'ble Apex Court, offences under the MMDR Act and Rules framed thereunder and offences under the IPC stands on different footing and are procedurely distinguishable and can be differently initiated and proceeded with;
(vii) finally, it can be safely concluded that FIR involving offences under IPC alongwith offences under the MMDR Act and the Rules framed thereunder as in the present case, is clearly maintainable and can be validly registered and bar under section 22 of the MMDR Act is not attracted.
16. In such view of the matter, we are not inclined to place reliance upon the interim order granted by this Court without noticing the law laid down by Hon'ble Apex Court in Sanjay (supra) and in Jayant (supra). The petitioners are the owners of the vehicles which were found to be involved in the present case, therefore, a cognizable offence is made out.
17. One can take judicial notice of the fact that everyday newspapers are flooded with news of illegal mining from every corners of the country, raiding parties/officials/even officers are attacked and due to illegal mining, there can be no dispute about the fact that State Exchequer must be losing huge revenue apart from damage to the public property as well. The ecological part of such damage has already been discussed and taken note of Hon'ble Apex Court in the above noted judgments in the case of Sanjay (Supra) and Jayant (supra). Observations made by Hon'ble Apex Court judgment in Jayant (supra) also gives an impression that the existing provisions of the MMDR Act are falling short of expectations in view of the volume of illegal mining. Therefore, before we part, we express our concern by highlighting concern of the Hon'ble Apex Court expressed specifically in para 18 and 19 of Jayant (supra) and observe that it is high time for the Government concern to take a call on the larger issue and do the needful as Hon'ble Apex Court has left in to the wisdom of the legislature to do the needful and the concerned State to perform its public duty/obligation being an elected Government.
18. To attract the attention of the State Government and for doing the needful in its own wisdom, in larger public interest, learned AGA is directed to forward a copy of this order to the respondent no.1-State of U.P. through its Secretary, Home Department, U.P. Government, Lucknow as well as to the Chief Secretary Government of U.P. within a week.
19. For similar reasons, office is also directed to serve a copy of this order on the Additional Solicitor General of India representing Union of India in this Court for being forwarded to the Secretary of the concerned Department/Ministry, Union of India within a week.
20. From the discussions made hereinabove, we find that the writ petition is devoid of merit and is accordingly dismissed, however, with the observations as made above.
Order Date :- 9.8.2023 Nitendra