Allahabad High Court
Abdul Rashid vs State Of U.P. And Another on 9 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2563
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 49 Case :- APPLICATION U/S 482 No. - 5613 of 2021 Applicant :- Abdul Rashid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Singh Bais Counsel for Opposite Party :- G.A. Hon'ble Vivek Agarwal,J.
1. Sri A.K.S. Bais, learned counsel for the applicant and Sri Vikas Goswami, learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been filed by the applicant- Abdul Rashid seeking quashing of the entire proceedings of the Criminal Case No.2927 of 2020 (State vs. Saleem and Another) arising out of impugned charge sheet dated 17.02.2020 submitted in Case Crime No.17/2020, under Section 379 , 411 IPC and 2/3, Prevention of Damage to Public Property Act, 1984, Police Station Chilkana, District Saharanpur.
3. Applicant has also challenged the impugned order of cognizance dated 20.07.2020 passed by learned A.C.J.M. Ist, Saharanpur on two grounds, namely, as per the provisions contained in Section 26 of the General Clauses Act, 1897, it is submitted that 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 of any of those enactments but shall not be liable to be punished twice for the same offence.
4. It is further submitted that there are elaborate provisions under the Mines and Minerals (Development and Regulation) Act, 1957 for instituting a complaint in the matter of illegal mining and, therefore, present case originating from an FIR needs to be quashed.
5. Sri Vikas Goswami, learned AGA, in his turn, submits that provisions of Section 26 of the General Clauses Act, 1897 will not be applicable at this juncture inasmuch as applicant is not being punished under several acts but right now trial has to take place which will determine culpability of the applicant and, thereafter, at the time of sentencing, this provision can be invoked and be brought to the notice of the concerned court so to enlighten it to not to punish the delinquent under more than one enactments.
6. After hearing learned counsel for the parties, as far as the provisions of Mines and Minerals (Development and Regulation) Act, 1957 are concerned, it is for the authorities to choose whether they want to proceed against the provisions of General Law or under Special Law or under both. For the present, when prosecution has decided to prosecute the accused under the provisions of General Law, then that can also be not faulted with in the light of the provisions contained in Section 26 of the General Clauses Act, 1897.
7. Before embarking upon the applicability of provisions of Section 26 of the General Clauses Act, 1897, it will be appropriate to refer to certain important provisions of the Mines and Minerals (Development and Regulation) Act, 1957.
8. Section 21 deals with penalties. It reads as under:-
" 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 and 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 year, or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with 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 (2 of 1974), an offence under sub-section (1) shall be cognizable."
9. Section 4(1) and 4(1)(a) referred to in Section 21 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 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 Companies Act, 2013 (18 of 2013), and any other entities including private entities that may be notified for this purpose, subject to such conditions as may be specified 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."
9. Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984 reads as under:-
"(2) Definitions.- In this Act, unless the context otherwise requires,-
(a) "mischief" shall have the same meaning as in section 425 of the Indian Penal Code (45 of 1860);
(b) "public property" means any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of--
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided that the Central Government shall not specify any institution, concern or undertaking under this sub-clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments.
3. Mischief causing damage to public property.- (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being--
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months."
10. Section 379 IPC prescribes punishment for theft. Theft has been defined under Section 378 IPC. Section 411 IPC deals with aspect of dishonestly receiving stolen property. When all the relevant provisions are examined under the Mines and Minerals (Development and Regulation) Act, 1957, then it is evident that Section 4(1) prohibits undertaking of any reconnaissance, prospecting or mining operations in any area, except in accordance with the terms and conditions of reconnaissance permit or of a prospecting license or, as the case may be, of a mining lease granted under this act and the rules made there under. Similarly sub-section 1 (A) of Section 4 of Mines and Minerals (Development and Regulation) Act, 1957 prohibits transport or storage or cause to be transported or stored any mineral otherwise then in accordance with the provisions of this Act and the Rules made thereunder, for which penalty has been prescribed as extracted above.
11. As far as Prevention of Damage to Public Property Act is concerned, Section 3(1) of the Act of 1984 specifically provides that whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section 2, shall be punished with imprisonment for a term which may extend to five years and with fine.
12. Word mischief has been given same meaning as is mentioned under sub-section 425 of the Indian Penal Code. Mischief is defined under section 425 IPC as under:-
"425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."
13. Section 26 of the General Clauses Act, 1897 provides that where an act or omission constitutes of an offence under two or more enactments, then offender shall be liable to be prosecuted and punished under either of or any of those enactments, but shall not be liable to be punished twice for the same offense.
14. In this regard in case of Manipur Administratiorn, Manipur, Appellant vs. Thokchom Vira Singh, respondent as reported in AIR 1965 SC 87, it is held that both in the case of Article 20 (2) of the Constitution as well as Section 26 of the General Clauses Act, to operate as a bar, on second prosecution and the consequential punishment thereunder must be for "the same offence" i.e. an offense whose ingredients are the same.
15. In case of State of Madhya Pradesh vs. Vireshwar Rao Agnihotri AIR 1957 SC 592, it is held that the offence of criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act is not identical in essence, import and content with an offence under Section 409 of the Penal Code. It is held that Article 20 cannot apply because the accused was not prosecuted after he had already been tried and acquitted for the same offense in an earlier trial and therefore it is well known in view of the above pronouncement, the view taken by the learned Judge of the High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under s. 5(2) of the Prevention of Corruption Act 2 of 1947. Section 403(1) of the Criminal Procedure Code only prohibits the subsequent trial for the same offence, or on the same facts for any other offence for which a different charge from the one made against an accused person might have been made under s. 236 of the Criminal Procedure Code, or for which he might have been convicted under s. 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that s. 403(1) has no application to the facts of the present case, where there was only one trial for several offences, of which the accused person was acquitted while being convicted of one. On this ground alone the order of the High Court is liable to be set aside. The High Court also relied on Art. 20 of the Constitution for the order of acquittal but the article cannot apply because the respondent was not prosecuted after he had already tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debet lis vexari, constat curice quad sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause) embodied in Art. 20 cannot apply.
16. It is further held that when there are two alternative charges in the same trial conviction for one and acquittal on other will not prevent the conviction on the other attracting provisions contained in Section 26 of the General Clauses Act.
17. This issue was again dealt with by the Supreme Court in case of State of Bombay vs. S.L. Apte and Another, AIR 1961 SC 578, wherein in para 15 it is held that if the offences were distinct, there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable.
18. In para 16, it is held as under:-
"16. It has been held that concluding portion of Section 26 clearly provides that one shall not be liable to be punished twice for the same offence. If the offences are not same but are distinct, the ban imposed by this provision also cannot be invoked."
19. In case of Institute Chartered Accountant of India vs. Vimal Kumar Surana (2011) 1 SCC 534, it is held that respondent could have been simultaneously prosecuted for contravention of Sections 24, 24(A) and 26 of the Chartered Accountants Acts, 1949 and for the offences defined under IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence.
20. This aspect was also considered by the Supreme Court in case of T.S. Baliah vs. T.S. Rengachari, AIR 1969 SC 701, where the Court considered the question whether the appellant could be simultaneously prosecuted under Section 177 IPC and for violation of Section 52 of the Income Tax Act, 1922. After noticing Section 26 of the General Clauses Act, the Court held:-
"A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case".
21. When tested on the touchstone on the principles of law laid down by in case of Vireshwar Rao Agnihotri (supra), Thokchom Vira Singh (supra), S.L. Apte (supra) and the one in case of Vimal Kumar Surana (supra), it is evident that ratio of law is that Article 20 will apply where accused is prosecuted again after he had already been tried and acquitted for the same offence in an earlier trial, but provisions of Section 26 of the General Clause Act will not be applicable where there are two alternative charges in same trial as is in the case in hand at present. There are charges under the provisions of the Prevention of Damage to Public Property Act, 1984 and also under the provisions of IPC, for which trial has to commence simultaneously and, therefore, it is not open to the applicant to suggest that since there are provisions under Mines and Minerals (Development and Regulation) Act, 1957 as well, a complaint should have been instituted instead of registering a FIR against the applicant. As in the same trial, two sets of charges have been framed and trial has to go on simultaneously, there does not arise any question of being punished twice for the same offence, therefore, plea raised by the applicant that registration of case under two provisions of different enactments will result in violation of provisions contained in Section 26 of the General Clauses Act, 1897 is not made out specially when tested on the touchstone of law laid down in case of T.S. Baliah (supra) and also in the light of the law laid down in case of Collector of Customs vs. Basantraj Bhawanji Bhatia, (1988) 3 SCC 467, as ingredients of mischief as defined under Section 425 IPC so to constitute of an offence under the Prevention of Damage to Public Property Act, 1894 are totally different from the ingredients to constitute an offence of theft and that of Section 411 prescribing punishment for dishonestly receiving stolen property.
22. Therefore, for the present, I do not find any illegality in the impugned order calling for interference.
23. Application fails and is dismissed.
Order Date :- 09.08.2021 Ravi/-