Kerala High Court
George vs State Of Kerala on 8 January, 2021
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 ..3..
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 ..6..
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 ..7..
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 ..8..
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 ..9..
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 ..10..
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 ..11..
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 ..12..
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 ..14..
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 ..15..
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