03 Dec 2020

Offences under Mines & Minerals (Development & Regulation) Act, 1957 and Indian Penal Code, 1860 are distinct and different, compounding of offence under the former does not prevent the proceedings under the latter - Supreme Court of India

Case : Jayant Etc. v. State of Madhya Pradesh and Anr. Criminal Appeal Nos. 824-¬825 of 2020

Court :

Bench : Justice Ashok Bhushan and Justice M.R. Shah

Decided on : 03 Dec 2020

Relevant Statutes

Sections 4 and 21  of the Mines & Minerals (Development & Regulation) Act, 1957

Rule 18 of the M. P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006

Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996

Sections 482 and 156(3) of the Code of Criminal Procedure, 1973

Section 379 and 414 of the Indian Penal Code, 1860

Brief Facts and Procedural History

1. The mining inspectors found the private appellants indulged in illegal mining/ transportation of minor mineral. They prepared their respective cases under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996 and submitted them before the Mining Officers with a proposal of compounding the same for the amount calculated under the Madhya Pradesh Minor Mineral Rules, 1996. The proposal was also approved by the Collector. The violators deposited the amount determined and their tractor/ trolleys along with the minerals,   which were illegally excavated/ transported, were released.

2. Later it was revealed that required legal action had not been taken and the violators were permitted to go on compounding the offence under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996.

3. The Judicial Magistrate First Class took suo-motu action under Section 156 of the Code of Criminal Procedure, 1973 and directed initiation of investigation and also directed the concerned In-­charge/SHOs of the concerned police stations to register the first information report for the offences under the Sections 379 and 414 of the Indian Penal Code, 1860, Section 4/21 of the MMDR Act and Rule 18 of 2006 rules and a copy of the first information report be sent to the learned Magistrate as per the provisions of Section 157 of the Code of Criminal Procedure, 1973.

4. The private appellants approached the High Court to quash the aforesaid First Information Reports registered against them for illegal mining/ transportation of sand under Section 482 of the Code of Criminal Procedure, 1973.

5. The High Court dismissed the aforesaid applications filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the respective First Information Reports. 

6. Indore Bench of High Court of Madhya Pradesh passed a common judgement and order confirming the decision of the Judicial Magistrate First Class; which has been challenged by the original petitioner and the State of Madhya Pradesh through an appeal before the Supreme Court of India.

The Issues of the case

Whether the provisions contained in Sections 21, 22 and other provisions of the Mines & Minerals (Development & Regulation) Act, 1957 operate as a bar against the prosecution of a person who has been charged with the commission of the offences under Sections 379 and 414 of the Indian Penal Code, 1860?

Whether the provisions of the Mines & Minerals (Development & Regulation) Act, 1957 explicitly or impliedly exclude the provisions of the Indian Penal Code, 1860 when the act of the accused is an offence both under the Indian Penal Code, 1860 and Mines & Minerals (Development & Regulation) Act, 1957?

When and at what stage the Magistrate can be said to have taken cognizance attracting bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957?

The Observations of the Court

1. There is no complete and absolute bar in prosecuting persons under the Indian Penal Code, 1860 where the offence committed by the person are penal and cognizable. The prohibition contained in Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 against the prosecution of a person except on a written complaint by an authorized officer would be attracted only when such a person is sought to be prosecuted under Section 4 of the Mines & Minerals (Development & Regulation) Act, 1957 act and not for any offence under the Indian Penal Code, 1860.  The bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 will be attracted only when the Magistrate takes the cognizance.

2. Taking cognizance is completely different from making a complaint. These are two different stages of the same process and this fact has been explained and accepted in several cases such as Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121, Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157. Thus, the High Court has correctly confirmed the order of the Judicial Magistrate First Class.

3. The Magistrate by ordering initiation of the investigation for the criminal proceedings cannot be said to have taken cognizance of the case. As observed in the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 when a Special Judge refers a complaint about investigation under Section 156(3) CrPC., 1973, has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. The decisions in R.R. Chari v. State of U.P AIR 1951 SC 207 and A.R. Antulay v. Ramdas Sriniwas Nayak,(1984) 2 SCC 500 concur with the same.

4. When an order is passed by the Magistrate for the investigation to be made by the police under Section 156(3) of the Code of Criminal Procedure, which the learned Magistrate did in the instant case when such an order is made the police is obliged to investigate the case and submit a report under Section 173(2) of the Code. That thereafter the investigating officer is required to send a report to the authorised officer and thereafter as envisaged under Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 the authorised officer as mentioned in Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 may file the complaint before the learned Magistrate along with the report submitted by the investigating officer and at that stage, the question with respect to taking cognizance by the learned Magistrate would arise.

5. The appropriate authority in the present case determined the penalty which the private appellants paid.  Section 23A provides that any offence punishable under MMDR Act or rules made thereunder, either before or after the institution of the proceedings, be compounded by the authorised person under Section 22 to make a complaint to the court with respect to that offence. Section 23A (2) provides that where an offence is compounded under Section 23A (1) no further proceeding shall be taken with respect to such offence. However, this bar does not apply to offences under the Indian Penal Code, 1860.

6. The State may indeed get revenue by compounding the offence, but because of the large scale damages caused to the environment, the object and policy of the MDR Act are to restore the serious ecological balance and those inflicting serious damage to nature cannot go scot-free on payment of penalty only. The deterrent effect of the stringent provisions should make violators think twice before committing such offences and causing damage to the earth.

7. The appeal preferred by the State is misconceived. Initiation of a criminal proceeding in the court does not affect the powers of the authorised person to compound the offence. As observed in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 the offences under the IPC and offences under the Mines & Minerals (Development & Regulation) Act, 1957 are distinct and different, and it is permissible to initiate proceedings for the offences under the Indian Penal Code as well as under Mines & Minerals (Development & Regulation) Act, 1957. In the present case since the Courts have given orders in favour of the State, the latter ought not to have filed the appeal.

The following conclusions were thus, reached by the Honourable Supreme Court:

a. that the learned Magistrate can in the exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge of the police station to lodge/register crime case/FIR even for the offences under the Mines & Minerals (Development & Regulation) Act, 1957 and the Rules made thereunder and at this stage the bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 shall not be attracted;

b. The bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, 1957 shall be attracted only when the Magistrate takes cognizance of the offences under the Mines & Minerals (Development & Regulation) Act, 1957 and Rules made thereunder and orders issuance of process/summons for the offences under the Mines & Minerals (Development & Regulation) Act, 1957 and Rules made thereunder;

c. For the commission of the offence under the Indian Penal Code, 1860 on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of a complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the Mines & Minerals (Development & Regulation) Act, 1957 and Rules made thereunder;

d. In respect of violation of various provisions of the Mines & Minerals (Development & Regulation) Act, 1957 and the Rules made there under, when a Magistrate passes an order under Section 156(3) of the Code of Criminal Procedure and directs the concerned In-charge of the police station to register FIR in respect of the violation of various provisions of the Act and Rules made there under and thereafter after investigation the concerned In-charge 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 Mines & Minerals (Development & Regulation) Act, 1957 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 Mines & Minerals (Development & Regulation) Act, 1957 and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate;

e. In a case where the violator is permitted to compound the offences on payment of penalty as per Section 23A(1), considering Section 23A(2) of the Mines & Minerals (Development & Regulation) Act, 1957, there shall not be any further proceedings against the offender in respect of the offences punishable under the Mines & Minerals (Development & Regulation) Act, 1957 or any rule made thereunder so compounded. However, the bar under Section 23A(2) shall not affect any proceedings for the offences under the Indian Penal Code, 1860.

The Decision Held by the Court

The Honourable Supreme Court held that:

1. The appeals filed by the private appellants are partly allowed; to the extent of proceedings under Sections 4/21 of the Mines & Minerals (Development & Regulation) Act, 1957.

2. The appeal preferred by the State of Madhya Pradesh is dismissed.

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