Supreme Court of India
STATE OF NCT OF DELHIversusSANJAY
- Citation
- 2014 INSC 602
- Decided
- 4 September 2014
- Disposal
- Disposed off
- Bench
- M Y EQBAL
Holding
Sections 21 and 22 of the MMDR Act do not bar prosecution under the IPC for theft of sand; police may register an FIR and a magistrate may take cognizance of the IPC offence without a complaint under Section 22.
Summary
The Supreme Court examined whether the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) bars prosecution under the Indian Penal Code (IPC) for theft of sand and gravels from riverbeds. The Court held that offences under Section 21 of the MMDR Act (contravention of mining lease conditions) are distinct from theft offences under IPC Sections 378 and 379, and therefore the MMDR Act does not preclude police from registering an FIR or a magistrate from taking cognizance of the IPC offence. It clarified that Section 22's requirement of a complaint by an authorized officer applies only to prosecutions under the MMDR Act, not to IPC theft offences. The judgment also discussed statutory interpretation principles, the non‑obstante clause, and the public‑trust doctrine, emphasizing the State’s duty to protect natural resources. Consequently, the appeals were disposed of, directing lower courts to proceed with the IPC prosecutions.
Issues considered
- Whether Sections 21 and 22 of the MMDR Act operate as a complete bar against prosecution under the IPC for theft of sand and gravels.
- Whether the police may register an FIR for such theft offences despite Section 22.
- Whether a magistrate can take cognizance of the IPC offence without a complaint under Section 22 of the MMDR Act.
Legislation cited
- Chartered Accountants Act, 1949s. 24, s. 26
- Code of Criminal Procedure, 1973s. 156, s. 173, s. 190(1)(d), s. 195, s. 210
- Constitution of Indias. Article 48-A, s. Article 51-A
- Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005
- Indian Penal Code, 1860s. 114, s. 1208, s. 34, s. 378, s. 379
- Mines and Minerals (Development and Regulation) Act, 1957s. 21, s. 21(6), s. 22, s. 4, s. 4(1A)
- Wild Life (Protection) Act, 1972s. 55
Subjects
illegal sand miningMMDR ActIndian Penal Codetheftcognizancenon-obstante clausestatutory interpretationpublic trust doctrineenvironmental protectiondouble jeopardy
Judgment
[2014] 9 S.C.R. 1063
STATE OF NCT OF DELHI A
v.
SANJAY
(Criminal Appeal No. 499 of 2011)
SEPTEMBER 04, 2014
B
[M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]
Mines and Minerals (Development and Regulation) Act,
1957:
c
Object and legislative intent behind enactment -
Discussed.
Illegal sand mining - Adverse impact of - Discussed.
ss.21, 22 - Whether the provisions contained in ss.21, D
22 and other sections of MMDR Act operate as bar against
prosecution of a person who has been charged u/ss. 3791114
and other provisions of the /PC - Held: A close reading of
the provisions of MMDR Act and the offence defined u/s.378,
/PC shows that the ingredients constituting the offence are E
different - The contravention of terms and conditions of
mining lease or doing mining activity in violation of s.4 of the
Act is an offence punishable uls.21 of the MMDR Act,
whereas dishonestly removing__§g_{ld, gravels and other
minerals from the river, whicnTs the property of the State, out F
. of State's possession without the consent, constitute an
offence of theft - Therefore, in a case where there is a theft of
sand and gravels from the Government /aQd, the police can
register a case, investigate the same and submit a final report
u/s. 173, Cr.P. C. before the Magistrate having jurisdiction for G
,(h~ ,PF,rpose of taking cognizance as provided in s.190(1)(d),
Cr.P. C. - Penal Code, 1860 - ss. 3791114 - Constitution of
India, 1950 -Arts 48-A, 51-A - Doctrine of Public Trust.
1063 H
1064 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Interpretation of statutes:
Non-obstante clause - Held: Is a legislative device which
is usually employed to give overriding effect to certain
provisions over some contrary provisions that may be found
either in the same enactment or some other enactment, that
8
is to say, to avoid the operation and effect of all contrary
provisions - Mines and Minerals (Development and
Regulation) Act, 1957.
Statute mandatory or directory - Held: The question
C whether a statute is mandatory or directory depends upon the
intent of the Legislature and not upon the language in which
t""'. intent is clothed.
Disposing of the appeals, the Court
D HELD: 1. 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
E 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 natu'ral environment including forests, lakes, rivers
F 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
G great importance to the people as a whole that it would
be highly unjustifiable to make them a subject of private
ownership. Reading the provisions of the MMDR Act
minutely and carefully, prima facie there is no complete
and absolute bar in prosecuting persons under the Indian
H
STATE OF NCT OF DELHI v. SANJAY 1065
Penal Code where the offences committed by persons A
are penal and cognizable offence. [Paras 55, 56] [1115-
G, H; 1116-A-D]
M. Pa/anisamy v. The State of Tamil Nadu 2012 (4) CTC
1; Centre for Public Interest Litigation v. Union of India (2012)
8
3 SCC 1: 2012 (3) SCR 147; M. C. Mehta v. Kamal Nath
(1997) 1 SCC 388: 1996 (10) Suppl. SCR 12; Intellectuals
Forum v. State of A.P. (2006) 3 SCC 549: 2006 (2) SCR 419;
Manohar Lal Sharma v. Principal Secretary (2014} 2 SCC
532; State of M.P. v. Ram Singh (2000) 5 SCC 88: 2000
(1) SCR 579; Directorate of Enforcement v. Deepak Mahajan, C
(1994) 3 SCC 440: 1994 (1) SCR 445; Maqbool Hussain v.
State of Bombay, AIR 1953 SC 325: 1953 SCR 73.0; State
of Bombay v. S.L. Apte AIR 1961 SC 578:1961 SCR 107;
T. S. Baliah v. /TO AIR 1969 SC 701: 1969 SCR 65; Collector
of Customs v. Vasantraj Bhagwanji Bhatia 1988 (3) SCC 467: D
1988 (3) SCR 450; Leo Roy Frey v. Thomas Dana AIR 1958
SC 119: 1958 SCR 822; State of Bihar v. Murad Ali Khan
and Ors. (1988) 4 sec 655:1988 (3) Suppl. SCR 455;
Institute of Chartered Accountants of India v. Vimal Kumar
Surana (2011) 1 SCC 534: 2010 (14) SCR 248; State of E
Rajasthan vs. Hat Singh (2003) 2 SCC 152: 2003 (1) SCR 38
- referred to.
Avtar Singh vs. State of Punjab AIR 1965 SC 666: 1965
SCR 103 - Distinguished. F
Sengol, Charles and K. Kannan, etc.etc. vs. State Rep.
by Inspector of Police 2012 Cri LJ 1705, 2012(2) CTC 369;
Smt. Seema Sarkar vs. The State (1995)1 CALLT 95(HC) -
referred to.
G
2. Sub-section (1A) of Section 4 of the MMDR Act
puts a restriction in transporting and storing any mineral
otherwise than in accordance with the provisions of the
Act and the rules made thereunder. In other words no
person will do mining activity without a valid lease or H
1066 SUPREME COURT REPORTS [2014) 9 S.C.R.
A license. Section 21 is a penal provision according to
which if a person contravenes the provisions of Sub-
section (1A) of Section 4 shall be prosecuted and
punished in the manner and procedure provided in the
Act. Section 22 of the Act puts a restriction on the court
s to take cognizance of any offence punishable under the
Act or any rule made thereunder except upon a complaint
made by a person authorized in this behalf. Section 21
does not begin with a non-obstante clause. Instead of the
words "notwithstanding anything contained in any law
c for the time being in force no court shall take
cognizance ..... ", the Section begins wit!t the words "no
court shall take cognizance of any offence." It is well
known that a non-obstante clause is a legislative device
which is usually employed to give overriding effect to
certain provisions over some contrary provisions that
0
may be found either in the same enactment or some other
enactment, that is to say, to avoid the operation and effect
of all contrary provisions. The question is whether a
statute is mandatory or directory depends upon the intent
of the Legislature and not upon the language in which
E the intent is clothed. [Paras 57 to 60, 63] [1116-E-H; 1117-
A-B; 1118-A]
3. Considering the principles of interpretation and
the wordings used in Section 22, the provision is not a
F 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
G. 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
H cause serious repercussions. [Paras 66,67] [1119-8-E]
STATE OF NCT OF DELHI v. SANJAY 1067
4. There cannot be any dispute with regard to A
restrictions imposed under the MMDR Act and remedy
provided therein. In any case, where there is oa mining
activity by any person in contravention of the provisions
of Section 4 and other sections of the Act, the officer
empowered and authorized under the Act shall exercise 8
all the powers including making a complaint befor-e the
jurisdictional magistrate. The Magistrate shall in such
cases take cognizance on the basis of the complaint filed
before it by a duly authorized officer. In case of breach
and violation of Section 4 and other provisions of the Act, c
the police officer cannot insist Magistrate for taking
cognizance under the Act on the basis of the record
-submitted by the police alleging contravention of the said
Act. In other words, the prohibition contained in Section
22 of the Act against prosecution of a person except on 0
a complaint made by the officer is attracted on!y when
such person sought to be prosecuted for contravention
of Section 4 of the Act and not for any act or omission
which constitute an offence under Indian Penal Code.
However, there may be situation where a person without
any lease or licence or any authority enters into river and E
extracts sands, gravels and other minerals and remove
or transport those minerals in a clandestine manner with
an intent to remove dishonestly those minerals from the
possession of the State, is liable to be punished for
committing such offence under Sections 378 and 379, F
IPC. [Paras 68, 69] [1119-F-H; 1120-A-C]
5. A close reading of the provisions of MMDR Act and
the offence defined under Section 378, IPC make it clear
that the ingredients constituting the offence are different. G
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 H
1068 SUPREME COURT REPORTS [2014) 9 S.C.R.
A of the State, out of State's possession without the
consent, constitute an offence of theft. 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
B 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. [Paras
70 to 72] [1120-D-E; 1121-B-C]
,C Pratap Singh vs. Shri Krishna Gupta AIR 1956 SC 140;
State of UP. vs. Babu Ram Upadhya AIR 1961 SC 751 -
relied on,
Liverpool Borough v. Turner Lord Campbell (1861) 30
L.J. Ch.379 - referred to.
D
Maxell on the Interpretation of Statutes 10th Edn.-
referred to.
Case Law Reference:
E 2012 Cri LJ 1705, referred to Para 11
2012(2) CTC 369
(1995)1 CALLT 95(HC) referred to Para 13
2012 (4) CTC 1 referred to Para 35
F 2012 (3) SCR 147 referred to Para 36
1996 (10) Suppl. SCR 12 referred to Para 37
2006 (2) SCR 419 referred to Para 38
G (2014) 2 sec 532 referred to Para 39
2000 (1) SCR 579 referred to Para 40
1994 (1) SCR 445 referred to Para 41
1953 SCR 730 referred to Para 42
H
STATE OF NCT OF DELHI v. SANJAY 1069
1961 SCR 107 referred to Para 44 A
.1969 SCR 65 referred to Para 45
1988 (3) SCR 450 referred to Para 46
1958 SCR 822 referred to Para 47 B
1988 (3) Suppl. SCR 455 referred to Para 49
2003 (1) SCR 38 referred to Para 51
1965 SCR 103 Distinguished Para 52
c
2010 (14) SCR 248 referred to Para 54
AIR 1956 SC 140 relied on Para 62
AIR 1961 SC 751 relied on Para 65
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal D
No. 499 of 2011.
From the Judgment & Order dated 17.03.2009 in Writ
Petitiobn (Criminal) No. 5.82 of 2008 by the High Court of Delhi
at New Delhi. E
WITH
Crl. A. Nos. 2108-2112, 2107, 2106 and 2105 of 2013.
Anil Katiyar, Abhijat P. Medh, Nikhil Goel, A. Venayagam F
Balan for the Appellant.
R.C. Kaushik, Pinky Behra, Preeti Bhardwaj (for
Hemantika Wahi) for the Respondent.
The Judgment of the Court was delivered by. G
M.Y.EQBAL, J. 1. The principal question which arises for
consideration in these appeals is whether the provisions
contained in Sections 21, 22 and other sections of Mines and
Minerals (Development and Regulation) Act, 1957 operate as H
1070 SUPREME COURT REPORTS [2014] 9 S.C.R.
A bar against prosecution of a person who has been charged with
allegation which constitutes offences under Section 379/114
and other provisions of the Indian Penal Code. In other words,
whether the provisions of Mines and Minerals Act explicitly or
impliedly excludes the provisions of Indian Penal Code when
B the act of an accused is an offence both under the Indian Penal
Code (in short, 'IPC') and under the provisions of Mines and
Minerals (Development and Regulation) Act.
2. Criminal Appeal No.499 of 2011 arose out of an order
passed by the Delhi High Court on an application under Section
C 482 Cr.P.C. seeking quashing of the FIR registered at Police
Station Alipur under Sections 379/114/1208/34 IPC on the
allegation that appellant was involved in illegal mining of sand
from the Yamuna basin. An FIR was registered by the police
suo motu having come to know that some persons were
D removing and selling sand from the Yamuna basin for the last
so many days. On receipt of such information, the police
officers committed raid and visited the site where they found
one dumper filled with sand. Because of non-production of any
documents and valid papers, the digging equipments were
E seized and taken into possession and persons were arrested.
An FIR was registered on the charges of illegal mining under
Section 379/114 IPC besides being cognizable offence under
Section 21 (4) of the Mines and Mineral (Development and
Regulation) Act, 1957 (in short the MMDR Act).
3. The appellant challenged the registration of the case on
the ground inter alia that offence if at all committed, cognizance
would have been taken under the provisions of MMDR Act, that
too on the basis of complaint to be filed under Section 22 of
G the Act by an authorized officer.
4. Criminal Appeal No.2105 of 2013
Similarly this case arose 9ut of an order passed by the
Gujarat High Court on an application filed by the appellant
H seeking quashing of the FIR on various grounds inter alia that
STATE OF NCT OF DELHI v. SANJAY 1071
[M.Y. EQBAL, J.]
Section 22 of the MMDR Act put a complete bar on .the A
registration of FIR by the police. The allegation inter alia in the
FIR was on illegal mining in those areas where mining lease
was already revoked.
5. Criminal Appeal Nos. 2108-2112 of 2013 B
In these cases, appellants are the owners of Murlidhar
Stone Industries and were granted quarry lease in the seam of
Village Thoriwari for excavation of mines and minerals on
payment of royalty. The appellants challenged the legality and
validity of mining complaint lodged by the State geologist C
against them for offences under Section 379/114 of IPC .and
under Section 21 of the MMDR Act. The appellants sought an
. appropriate writ or direction to quash and set aside the criminal
proceedings on the same ground that Section 22 of the Act
prohibits registration of FIR with respect to offences punishable D
under the said MMDR Act.
6. Criminal Appeal No.2107 of 2013
This appeal also arose out of the order passed by the High
Court of Gujarat on the application challenging the legality and E
validity of criminal complaint filed before Bhuj Taluka Police
Station for the alleged illegal mining and transporting a dumper
loaded with black trap stone. A complaint was made with the
police for the commission of offence under Section 379 read
with Section 114 of the IPC and Linder Section 21 of the MMDR F
Act.
7. Criminal Appeal No.2106 of 2013
This appeal also arose out of a complaint filed before
Sayla Police Station by the lncharge Mines Supervisor, alleging G
offence punishable under Sections 4(1) and 21(1) of the MMDR
Act. No charge sheet has been filed in this complaint so fa_r.
8. Criminal Appeal No.499 of 2011, as stated above,
H
1072 SUPREME COURT REPORTS [2014] 9 S.C.R.
A arose out of the order passed by the Delhi High Court. The
Delhi High Court formulated three issues for consideration:-
(1) Whether the police could have registered an FIR in the
case;
B (2) Whether a cognizance can be taken by the concerned
Magistrate on the basis of police report; and
(3) Whether a case of theft was made out for permitting
registration of an FIR under Section 379/411 of the Indian
c Penal Code.
The High Court after referring various provisions on the
MMDR Act vis-a-vis Code of Criminal Procedure disposed of
the application directing the respondent to amend the FIR, which
D was registered, by converting the offence mentioned therein
under Section 379/411/1208/34 of IPC to Section 21 of the
MMDR Act. The Higt'I Court in para 18 of the impugned order
held as under:-
"18. In view of the aforesaid and taking into consideration
E the provisions contained under Section 21 (6) of the said
Act I hold that:
(i) The offence under the said Act being cognizable
offence, the Police could have registered an FIR in this
case;
F
(ii) However, so far as taking cognizance of offence
under the said Act is concerned, it can be taken by the
Magistrate only on the basis of a complaint filed by an
authorized officer, which may be filed along with the police
G report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act,
the question of said offence being an offence under
H Section 379 IPC does not arise because the said Act
STATE OF NCT OF DELHI v. SANJAY 1073
[M.Y. EQBAL, J.]
makes illegal mining as an offence only when there is no A
permit/licence for such extraction and a complaint in this
regard is filed by an authorized officer."
9. On the other hand the Gujarat High Court formulated the
following question for co'nsideration:-
B
Whether Section 22 of the Act would debar even lodging
an FIR before the police with respect to the offences
punishable under the said Act and Rules made
thereunder?
c
In Case such FIR's are not debarred and the police are
permitted to investigate, can the concerned Magistrate
take cognizance of the offences on a police report?
What would be the effect on the offences punishable under
the Indian Penal Code in view of the provisions contained D
in the Act?
10. The Gujarat High Court came to the following
conclusion:-
E
(i) The offence under the said Act being cognizable
offencE>. the Police could have registered an FIR in this
case;
(ii) However, so far as taking cognizance of offence under
the said Act is concerned, it can be taken by the Magistrate F
. only on the basis of a complaint filed by an authorized
officer, which may be filed along with the Police report;
(iii) Since the offence of rriining of sand without permission
is punishable under Section 21 of the said Act, the G
question of said offence being an offence under Section
379 IPC do~s riot arise because the said Act makes
illegal mining as an offence only when there is no permit/
licence for such extraction and a complaint in this regard
is filed by an authorized officer.
H
1074 SUPREME COURT REPORTS [2014] 9 S.C.R.
A The High Court, therefore, held that:-
1. Section 22 of the Act does not prohibit registering an
FIR by the police on information being given with respect
to offences punishable under the said Act or the Rules
made thereunder.
B
2. It is however, not open for the Magistrate to take
cognizance of the offence punishable under the Act or the
Rules made there under on a mere charge- sheet filed by
the police. It would, however, be open for the officer
c authorized by the state or the Central Government in this
behalf to file a complaint in writing before the Magistrate
relying upon the investigating carried out by the police and
the complaint may also include the papers of the police
investigation.
D
3. With respect to offences punishable under the Indian
Penal Code, no such bar as indicated in para (2) would
apply.
xxxxxxx
E
22. In so far as the petitions where only FIRs have been
registered by the police and no charge sheet is filed, they
must fail. In so far as the cases where police investigation
has been concluded and charge sheets have been filed,
F it would not be open for the Magistrate concerned to take
cognizance of offences only on such police reports.
11. In the case of Sengol, Charles and K. Kannan, etc.etc.
vs. State Rep. by Inspector of Police, 2012 Cri LJ 1705,
2012(2) CTC 369, a similar question also came for
G consideration before the Madras High Court where a batch of
writ petitions were heard and disposed of. The allegation made
against the writ petitioner in the FIR was that they committed
theft of sand from rivers and river-bed belonging to the
Government, which act also constitutes violation of the
H
STATE OF NCT OF DELHI v. SANJAY 1075
[M.Y. EQBAL, J.]
provisions of MMDR Act. Accordingly, they were prosecuted A
for the offence punishable under Section 21 of the MMDR Act
and also under Section 379 IPC. The question that came for
consideration before the Court was as to whether the provisions
of the Mines and Minerals (Development and Regulation) Act,
1957, will either explicitly or impliedly exclude the provisions of B
the Indian Penal Code when the act of an accused is an offence
both under the Indian Penal Code and under the Provisions of
the Mines and Minerals (Development and Regulation) Act,
1957?
12. After considering various provisions of the Act, the
c
Division Bench observed:-
"35. 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 D
conditions of mining lease, etc. constitutes an offence
punishable under Section 21 of the Mines and Minerals
Act, 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 E
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 Act."
F
13. The Calcutta High Court in the C(\se of Smt. Seema
Sarkar vs. The State, (1995)1 CALLT 95(HC), has taken a
different view. In this case the Block Land Reforms Officer
lodged a complaint with the Police Station alleging inter a/ia
that the accused persons unauthorisedly excavated the land of
ordinary clay for manufacturing brick without an authorized G
licence and thereby violated Section 21 (2) of the MMDR Act
and Section 379 IPC. The Bhatar police station registered the
complaint treating it as an FIR and GR case was started before
the sub-divisional judicial Magistrate, Faridabad. The order
taking cognizance and also the complaint was challenged by H
1076 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the accused persons on the ground inter alia that no court is
competent and empowered to take cognizance of an offence
under the MMDR Act, 1957 unless the complaint is being
lodged by an authorizea person. Quashing· the complaint, the
Calcutta High Court held as under:-
B
"6. The learned Magistrate has taken cognizance of. the
offence on the basis of the charge-sheet as submitted by
the Police under Section 21 (2) of the Mines and Minerals
(Regulation and Development) Act, 1957 and Section 379
of the Indian Penal Code. Cognizance can be taken under
c section 190 of the Code of Criminal Procedure, 1973.
Cognizance is one and it cannot be divided. Splitting of
cognizance is not permissible under the law. This is the
admitted position that the complainant who lodged the
complaint is not an authorized person to make such
D complaint. So taking cognizance on the basis of the
complaint by the learned Magistrate for violation of-the
provision under Section 21 (2) of the Mines and Minerals
(Regulation and Development) Act, 1957 is bad. The only
question that is left open is whether taking cognizance itself
E is bad or a partial cognizance can be taken? In the
peculiarity of the facts and circumstances of the case if the
offence as alleged under Section 379 1.P.C. against the
accused is dissociated from the allegation of excavation
of earth without license constituting an offence under
F Section 21 (2) of the Mines and Minerals (Regulation and
Development) Act, 1957, then there is no ingredient for an
offence under Section 379 l.P.C. against the accused.
Even if it is assumed that there is such an ingredient then
the order of taking cognizance is bad because cognizance
G is one and it cannot be made a split. If it is found that taking
cognizance of an offence is bad the other part of the
offence for which cognizance has been taken cannot be
sustained in law."
14. Since conflicting views have been taken by Gujarat
H High Court, Delhi High Court, Kerala High Court, Calcutta High
STATE OF NCT OF DELHI v. SANJAY 1077
[M.Y. EQBAL, J.]
Court, Madras High Court and Jharkhand High Court, and they A
are in different tones, it is necessary to settle the question
involved in these appeals.
15. Mr. Nikhil Goel learned counsel appearing in Criminal
Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the
B
impugned order of the High court on various grounds. Learned
counsel firstly contended that Section 22 of MMDR Act per se
puts a bar even on registration of the FIR and consequently on
investigation unless a direction to that effect comes from the
Magistrate and that too on a complaint in writing made by a
person authorized in this behalf. Learned counsel contended C
that Section 21 (6) of the Act makes the offence under sub-
section 1 of Section 21 to be cognizable irrespective of
anything contained to the contrary in the Code of Criminal
Procedure. Learned counsel contended that both Section 21 (6)
and Section 22 if read independently on each other would D
make the other provision otiose. As a result, the bar under
Section 22 of the Act would not only prevail upon the provisions
contained in Section 190, Cr.P.C. but would prevail over the
chapter of the investigation, namely Chapter 12 Cr.P.C.
E
16. Learned counsel further submitted that in case the
cognizability of the offence contained in sub-clause 6 of Section
21 is to be extended to include applicability of Chapter 12 of
the Criminal Procedure Code, without complying with the
provisions of Section 22, the same would present at least three F
difficulties. Firstly, there are several provisions after the stage
of filing of charge-sheet which would be contrary to the
provisions and the rules contained in the 1957 Act. These
provisions in the act and the rules framed under the 1957
legislation inescapably indicate that almost everything relating G
to an offence under the provisions of Section 21 has to be done
by the authorized officer. Accordingly, if the provisions of
Section 21(6) are to be extended to Chapter 12, while the
police may register an FIR, the power to seize, the power to
compound, the requirement of taking directions from the
H
1078 . SUPREME COURT REPORTS [2014] 9 S.C.R.
A jurisdictional magistrate are examples of some things which the
police cannot do in view of direct contrary to the provisions in
the 1957 Act. Learned counsel submitted that this power of the
police is equivalent to the same power/duty which arises
pursuant to an order of the Magistrate under Section 156 [3].
s There would definitely be cases where offences punishable
under Section 20 were brought to the notice of persons who
were neither authorized person under the Act nor the police.
Therefore in such a situation, if the police fails to act, the other
option available to any person is to make an application under
c·Section 156 [3]. However, in this case, the learned Magistrate
has no jurisdiction to pass an order under this provision in view
of paragraph 11. Therefore, it will be a completely incongruous
situation if the provisions of sub-clause 6 of Section 21 are to
be extended to Chapter 12 despite which several provisions
in Chapter 12 cannot be invoked.
0
17. Learned counsel further submitted that the provisions
of Chapter 12 to 14 leading up to the magistrate taking
cognizance of an offence are a part of a common statutory duty.'
The investigation under Section 156 of the Code has to
E necessarily result in a report either under Section 170 or 173
of the Code. The appellant submits that the magistrate is duty
bound to act on such report in one of the three manners
suggested in para-6 of 1980 (4) SCC 631. It is submitted that
there is no other option of preparation of final report and keep
F it in abeyance. For this reason as well, the provisions of sub-
section (6) cannot be read into Chapter 12 of the code.
Learned counsel further submitted that the manner in which the
various high courts have dealt with these provisions are
conflicting. The appellant relies upon the decision of Kerala
G High Court reported in 2008 Cr.L.J. 2388, decision of Madras
High Court in Sengol (supra), the judgments of this Court
reported in (2009) 7 sec 526 and (2011) 1 sec 534 on the
· interpretation of similar clauses under different enactments. It
was contended that if the intention of the Legislature was to
H make violation of the provisions of Section 4 of the MMDR Act
STATE OF NCT OF DELHI v. SANJAY 1079
[M.Y. EQBAL, J.]
as an offence of theft, there would have been, an appropriate A
provision in the MMDR Act itself. The counsel submits that there
is a specific purpose for which powers have been given to the
authorized person to take care of breaches under the Act and
as such breaches are to be tried under the general penal law
as it would take away the protection which an accused/suspect B
has been given under the MMDR Act. The appellant submits
that all penal statutes have to be construed strictly and wherever
there are two views possible, benefit to an accused has to be
given.
18. Before answering the question, we shall first refer in
c
brief the relevant provisions of Mines and Minerals
(Development and Regulation) Act, 1957 and Code of Criminal
Procedure. Section 4 of the Act puts a restriction on mining
operation or prospecting mining operation by any person
except under a lease or licence. Section 4 reads as under:- D
"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 E
conditions of a reconnaissance permit or of a prospecting
licence or, as the case may be, a mining lease, granted
under this Act and the rules made thereunder:
Provided that nothing in this sub-section shall affect any
F
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.
G
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
o, .he Department of Atomic Energy of the Central H
1080 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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 Section 617 of the
Companies ACft, 1956.
B
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.
c
(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.
D
(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.
E (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
F that State which is not already held under any
reconnaissance permit, prospecting licence or mining
lease."
19. From a bare perusal of Section 4, particularly Section
G 4(1 A) would show that there is a total restriction on
transportation or search of minerals otherwise than in
accordance with the provisions of the Act and the rules made
. thereunder. The next relevant provisions are Sections 21 and
22 of the Act. Section 21 reads as under:-
H
STATE OF NCT OF DELHI v. SANJAY 1081
[M.Y. EQBAL, J.]
"Penalties 21. (1) Whoever contravenes the provisions of A
sub-section (1) or sub-section (1A) of section 4 shall be
punished with imprisonment for a term which may extend
to two years, or with fine which may extend to twenty-five
thousand rupees, or with both.
B
(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 one year
or with fine which may extend to five thousand rupees, or
with both, and in the case of a continuing contravention,
with an additional fine which may extend to five hundred
c
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 D
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. E
(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
F
seized by an officer or authority specially empowered in
this behalf.
(4A) Any mineral, tool, equipment, vehicle or any o!her
.thing seized under sub-section (4), shall be liable to be G
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.
H
1082 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (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,
B 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, an offence under sub-section
c (1) shall be cognizable."
20. Section 21 is a penalty provision in case of
contravention of Section 4( 1A) of the Act and is punishable with
imprisonment for a term which may extend to two years. Sub-
D section 3 of Section 21 would show that the State Government
or any other authority authorized by the State Government may
obtain the help of police to evict the trespassers from the land
who is doing mining activity in contravention of the provisions
of the Act. Sub-section 4 further empowered the officer or an
E authority specially empowered in this behalf to seize any tool,
equipment, vehicle or any other thing which are used by any
person who illegally or without any lawful authority erases,
transports any minerals from any land. Those minerals, tools,
equipment or vehicle or any other thing so seized shall be
F confiscated by the order of the court competent to take
cognizance and shall be disposed of in accordance with the
direction of such court as contemplated under sub-section 4(A)
of Section 4 of the Act. Sub-section (6) of Section 21 has been
inserted by an Amendment Act of 1986 whereby an offence
under Sub-section (1) of this Section has been made
G cognizable. Section 22 which is very relevant for the instant
case needs to be quoted hereinbelow :-
"22. Cognizance of offences
H No court shall take cognizance of any offence punishable•
STATE OF NCT OF DELHI v. SANJAY 1083
[M.Y. EQBAL, J.]
under this Act or any rules made thereunder except upon A
complaint in writing made by a person authorised in this
behalf by the Central Government or the State
Government."
21. Reading the aforesaid provision would show that 8
cognizance of any offence punishable under the Act or the
Rules made thereunder shall be taken only upon a written
complaint made by a person authorized in this behalf by the
Central Government or the State Government.
22. Section 23(8) confers power to any gazetted officer C
of the Central or State Government authorized on that behalf
to make search of minerals, documents or things in case there
is a reason to believe that any mineral has been raised in
contravention of the Act or the Rules made thereunder. While
making search provisions of Section 100 of Code of Criminal D
Procedure has been made applicable to every search.
"238. 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, E
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
F
mineral, document or thing and the provisions of section
100 of the Code of Criminal Procedure, 1973 shall apply
to every such search."
23. In exercise of powers conferred by Section 23(C)(1)
of the MMDR Act, the Government of Gujarat made rules called G
Gujarat Mineral (Prevention of Illegal Mining, Transportation and
Storage) Rules, 2005. The said Rules, inter alia, made
provisions to search, seizure and confiscation of the property
.... in the manner provided under the Act as and when a person
H
1084 SUPREME COURT REPORTS [2014) 9 S.C.R.
A violates the provisions of the Act and the Rules made thereunder
· in doing mining activities.
24. Looking into the provisions the Code of Criminal
Procedure, 1973 the relevant provisions need to be referred
hereunder. Section 2(c), 2(d) and 2(h) define cognizable
8
offence, complaint and investigation which reads as under :-
"2(c) "cognizable offence" means an offence for which, and
"cognizable case" means a case in which, a police officer
may, in accordance with the First Schedule or under any
c other law for the time being in force, arrest without warrant;
2(d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
D unknown, has committed an offence, but does not include
a police report.
2(h) "investigation" includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
E authorized by a Magistrate in this behalf;"
25. Section 4 provides that all offences under the Indian·
Penal Code shall be investigated, inquired into, tried and
otherwise dealt with according to the provisions contained in
F the said Code. Sub-section (2) of Section 4 provides that all
offences under any other law shall be inquired into, tried and
otherwise dealt with according to the same provisions but
subject to any enactment regulating the mining or place of
investigation, inquiry or trial of such offences. Coming to the
G provisions of Section 41 of the Code, it will show that a police
officer without an order of Magistrate and warrant can arrest
any person who commits a cognizable offence. The Court may
also arrest any person against whom a reasonable complaint
has been made or credible information has been received or ,,
H a reasonable suspicion exist that he has committed a
STATE OF NCT OF DELHI v. SANJAY 1085
[M.Y. EQBAL, J.]
cognizable offence punishable with imprisonment for a term A
which made less than seven years. The relevant part of Section
41, Cr.P.C. is quoted hereinbelow:-
"41. When police may arrest without warrant .-
(1) Any police officer may without an order from a B
Magistrate and without a warrant, arrest any person-
(a) who commits, in the presence of a police officer, a
cognizable offence;
(b) against whom a reasonable complaint has been made, c
or credible information has been received, or a
reasonable suspicion exists that he has committed a
cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may
extend to seven years whether with or without fine, if the D
following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of
such complaint, information, or suspicion that such person
has committed the said offence;
E
(ii) the police officer is satisfied that such arrest is
necessary-
(a) to prevent such person from committing any further
offence; or
F
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such evidence
in any manner; or G
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or
H
1086 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured,
and the police officer shall record while making such arrest,
his reasons in writing.
B
26. Chapter 11 of the Code confers very important power
and duty upon the police officer to take preventive action in
certain cases. Sections 149, 150, 151 and 152 of the Code
c are worth to be referred to and quoted hereinbelow :-
"149. Police to prevent cognizable offences - Every
police officer may interpose for the purpose of preventing,
and shall, to the best of his ability, prevent, the commission
of any cognizable offence.
D
150. Information of design to commit cognizable
offences - Every police officer receiving information of a
design to commit any cognizable offence shall
communicate such information to the police officer to whom
E he is subordinate, and to any other officer whose duty it is
to prevent or take cognizance of the commission of any
such offence.
151. Arrest to prevent the commission of cognizable
offences - (1) A police officer, knowing of a design to
F
commit any cognizable offence may arrest, without orders
from a Magistrate and without a warrant, the person so
designing, if it appears to such officer that the commission
of the offence cannot be otherwise prevented.
G (2) No person arrested under sub-section (1) shall
be detained in custody for a period exceeding twenty-four
hours from the time of his arrest unless his further detention
is required or authorized under any other provisions of this
Code or any other law for the time being in force.
H·
STATE OF NCT OF DELHI v. SANJAY 1087
[MY EQBAL, J.]
152. Prevention of injury to public property.- A police A
office may of his own authority interpose to prevent any
injury attempted to be committed in his view to any public
property, movable or immovable, or the removal or injury
of any public landmark or buoy or other mark used for
navigation." B
27. Perusal of aforementioned provisions would show that
a police officer of his own authority has the duty to prevent any
injury attempted to be committed to any public property or
national assets and to prosecute such person in accordance C
with law.
28. The policy and object of Mines and Minerals Act and
Rules have a long history and are the result of an increasing
awareness of the compelling need to restore the serious
ecological imbalance and to stop the damages being caused D
to the nature.
29. The Court cannot lose sight of the fact that adverse and
destructive environmental impact of sand mining has been
discussed in the UNEP Global Environmental Alert Service E
report. As per the contents of the report, lack of proper
scientific methodology for river sand mining has led to
indiscriminate sand mining, while weak governance and
corruption have led to widespread illegal mining. While referring
to the proposition in India, it was stated that Sand trading is a
F
lucrative business, and there is evidence of illegal trading such
as the ca~e of the influential mafias in our Country.
30. The mining of aggregates in rivers has led to severe
damage to river, including pollution and changes in levels of pH.
Removing sediment from rivers causes the river to cut its G
channel through the bed of the valley floor, or channel incision,
both upstream and downstream of the extraction site. This
leads to coarsening of bed material and lateral channel
instability. It can change the riverbed itself. The removal of more
than 12 million tonnes of sand a year from the Vembanad Lake H
1088 SUPREME COURT REPORTS (2014] 9 S.C.R.
A catchment in India has led to the lowering of the riverbed by 7
to 15 centimetres a year. Incision can also cause the alluvial
aquifer to drain to a lower level, resulting in a loss of aquifer
storage. It can also increase flood frequency and intensity by
reducing flood regulation capacity. However, lowering the water
B table is most threatening to water supply exacerbating drought
occurrence and severity as tributaries of major rivers dry up
when sand mining reaches certain thresholds.
31. Illegal sand mining also causes erosion. Damming and
C mining have reduced sediment delivery from rivers to many
coastal areas, leading to accelerated beach erosion.
32. The report also dealt with the astonishing impact of
sand mining on the economy. It states that the tourism may be
affected through beach erosion. Fishing, both traditional and
D commercial - can be affected through destruction of benthic
fauna. Agriculture could be affected through loss of agricultural
land from river erosion and the lowering of the water table. The
insurance sector is affected through exacerbation of the impact
of extreme events such as floods, droughts and storm surges
E through decreased protection of beach fronts. The erosion of
coastal areas and beaches affects houses and infrastructure.
A decrease in bed load or channel shortening can cause
downstream erosion including bank erosion and the
undercutting or undermining of engineering structures such as
F bridges, side protection walls and structures for water supply.
33. Sand is often removed from beaches to build hotels,
roads and other tourism-related infrastructure. In some
locations, continued construction is likely to lead to an
unsustainable situation and destruction of the main natural
G attraction for visitors - beaches themselves.
34. Mining from, within or near a riverbed has a direct
impact on the stream's physical characteristics, such as channel
geometry, bed elevation, substratum composition and stability,
H instream roughness of the bed, flow velocity, discharge
STATE OF NCT OF DELHI v. SANJAY 1089
[M.Y. EQBAL, J.]
capacity, sediment transportation capacity, turbidity, A
temperature, etc. Alteration or modification of the above
attributes may cause hazardous impact on ecological
equilibrium of riverine regime. This may also cause ·adverse
impact on instream biota and riparian habitats. This
disturbance may also cause changes in channel configuration B
and flow-paths.
35. In the case of M. Palanisamy vs. The State of Tamil
Nadu, 2012 (4) CTC 1, the amended provisions of the Tamil
Nadu Mines and Minerals Concession Rules, 1959 was
challenged on the ground that the said Rules for the purpose C
of preventing and restricting illegal mining, transportation and
storage of minerals are ultra vires constitutional provisions and
the provisions of the Mine and Minerals (Development and
Regulation) Act, 1957. Upholding the vires of the Rules, the
Division Bench (one of us, Eqbal, J. as he then was) of the D
Madras High Court, elaborately discussed the object of
restriction put in the illegal mining, transportation and storage
of minerals including sand and after considering various reports
observed thus: ·
E
"20. In order to appreciqte the issue involved in these Writ
Petitions, we may have to look at the larger picture - the
impact of indiscriminate, uninterrupted sand quarrying on
the already brittle ecological set up of ours. According to
expert reports, for thousands of years, sand and gravel F
have been used in the construction of roads and buildings.
Today,. demand for sand and gravel continues to increase.
Mining operators, instead of working in conjunction with
cognizant resource agencies to ensure that sand mining
is conducted in a responsible rrianner, are engaged in full- G
time profiteering. Excessive in-stream sand-and-gravel
mining from river beds and like resources causes the
degradation of rivers. In-stream mining lowers the stream
bottom, which leads to bank erosion. Depletion of sand in
the stream-bed and along coastal areas causes the
H
1090 SUPREME COURT REPORTS (2014) 9 S.C.R.
A deepening of rivers and estuaries and enlargement of river
mouths and coastal inlets. It also leads to saline-water
intrusion from the nearby sea. The effect of mining is
compounded by the effect of sea level rise. Any volume of
sand exported from stream-beds and coastal areas is a
B loss to the system. Excessive in-stream sand mining is a
threat to bridges, river banks and nearby structures. Sand
mining also affects the adjoining groundwater system and
the uses that local people make of the river. Further,
according to researches, in-stream sand mining results in
c the destruction of aquatic and riparian habitat through
wholesale changes in the channel morphology. The ill
effects include bed degradation, bed coarsening, lowered
water tables near the stream-bed, and channel instability.
These physical impacts cause degradation of riparian and
aquatic biota and may lead to the undermining of bridges
D
and other structures. Continued extraction of sand from
river beds may also cause the entire stream-bed to
degrade to the depth of excavation.
22. The most important effects of in-stream sand mining
E on aquatic habitats are bed degradation and
sedimentation, which can have substantial negative effects
on aquatic life. The stability of sand-bed and gravel-bed
streams depends on a delicate balance between stream
flow, the sediments supplied from the watershed and the
F channel form. Mining-induced changes in sediment supply
and channel form disrupt the channel and the habitat
development processes. Furthermore, movement of
unstable substrates results in downstream sedimentation
of habitats. The affected distance depends on the intensity
G of mining, particles sizes, stream flows, and channel
morphology.
23. 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
H
STATE OF NCT OF DELHI v. SANJAY 1091
[M.Y. EQBAL, J.]
on the embankments of these rivers dry. Bed degradation A
from in-stream mining lowers the elevation of stream flow
and the floodplain water table, which in turn, can eliminate
water table-dependent woody vegetation in riparian areas
and decrease wetted periods in riparian wetlands. So far
as locations close to the sea are concerned, saline water B
may intrude into the fresh waterbody."
36. In the case of Centre for Public Interest Litigation vs.
Union of India, (2012) 3 SCC 1, this Court, while observing
that the natural resources are the public property and national C
assets, held as under:-
"75. The State is empowered to distribute natural
resources. However, as they constitute public property/
national asset, while distributing natural resources the
State is bound to act in consonance with the principles of D
equality and public trust and ensure that no action is taken
which may be detrimental to public interest. Like any other
State action, constitutionalism must be reflected at every
stage of the distribution of natural resources. In Article
39(b) of the Constitution it has been provided that the E
ownership and control of the material resources of the
community should be so distributed so as to best subserve
the common good, but no comprehensive legislation has
been enacted to generally define natural resources and a
framework for their protection. Of course, environment laws F
enacted by Parliament and State Legislatures deal with
specific natural resources i.e. forest, air, water, coastal
zones, etc."
37. In the case of M.C. Mehta vs. Kamal Nath and others
(1997) 1 SCC 388, this Court while considering the doctrine G
of public trust which extend to natural resources observed as
under:-
"24. The ancient Roman Empire developed a legal theory
known as the "Doctrine of the Public Trust". It was founded H
1092 SUPREME COURT REPORTS [2014] 9 S.C.R.
A on the ideas that certain common properties such as
rivers, seashore, forests and the air were held by
Government in trusteeship for the free and unimpeded use
of the general public. Our contemporary concern about "the
environment" bear a very close .conceptual relationship to
B this legal doc1'ine. Under the Roman law these resources
were either owned by no one (res nul/ious) or by every one
in common (res communious). Under the English common
law, however, the Sovereign could own these resources
but the ownership was limited in nature, the Crown could
c not grant these properties to private owners if the effect
was t-o interfere with the public interests in navigation or
fishing. Resources that were suitable for these uses were
deemed to be held in trust by the Crown for the benefit of
· the public. Joseph L. Sax, Professor of Law, University of
Michigan - proponent of the Modern Public Trust Doctrine
D
- in an erudite article "Public Trust Doctrine in Natural
Resource Law: Effective Judicial Intervention", Michigan
Law Review, Vol. 68, Part 1 p. 473, has given the historical
background of the Public Trust Doctrine as under:
E "The source of modern public trust law is found in a
.concept that received much attention in Roman and
English law - the nature of property rights in rivers, the
sea, and the seashore. That history has been given
considerable attention in the legal literature, need not be
F repeated in detail here. But two points should be
emphasized. First, certain interests, such as navigation
and fishing, were sought to be preserved for the benefit
of the public; accordingly, property used for those
purposes was distinguished from general public property
G which the sovereign could routinely grant to private owners.
Second, while it was understood that in certain common
properties - such as the seashore, highways, and running
water.- 'perpetual use was dedicated to the public', it has
never been clear whether the public had an enforceable
H right to prevent infringement of those interests. Although
STATE OF NCT OF DELHI v. SANJAY 1093
[M.Y. EQBAL, J.]
the State apparently did protect public uses, no evidence A
is available that public rights could be legally asserted
against a recalcitrant government."
25. The Public Trust Doctrine primarily rests on the
principle that certain resources like air, sea, waters and
B
the forests have such a great importance to the people as
a whole that it would be wholly unjustified to make them a
subject of private ownership. The said resources being a
gift of nature, they should be made freely available to
everyone irrespective of the status in life. The doctrine C
enjoins upon the Government to protect the resources for
the enjoyment of the general public rather than to permit
their use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine
imposes the following restrictions on governmental
authority: D
"Three types of restrictions on governmental authority
are often thought to be imposed by the public trust: first,
the property subject to the trust must not only be used for
a public purpose, but it must be held available for use by E
the general public; second, the property may not be sold,
even for a fair cash equivalent; and third the property must
be maintained for particular types of uses:"
xxxxxxxxx
F
34. Our legal system - based on English common law -
includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and
enjoyment. Public at large is the beneficiary of the sea- G
shore, running waters, airs, forests and ecologically fragile
lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for
public use cannot be converted into private ownership."
H
1094 SUPREME COURT REPORTS [2014] 9 S.C.R.
A · 38. In the case of Intellectuals Forum vs. State of A.P.,
(2006) 3 sec 549, this Court while balancing the conservation
of natural resources vis-a-vis urban development observed as
under:-
"67. The responsibility of the State to protect the
B
environment is now a well-accepted notion in all countries.
It is this notion that, in international law, gave rise to the
principle of "State responsibility" for pollution emanating
within one's own territories (Corfu Channel case). This
responsibility is clearly enunciated in the United Nations
c Conference on the Human Environment, Stockholm 1972
(Stockholm Convention), to which India was a party. The
relevant clause of this declaration in the present context
is para 2, which states:
D "The natural resources of the earth, including the air, water,
land, flora and fauna and especially representative
samples of natural ecosystems, must be safeguarded for
the benefit of present and future generations.through careful
planning or management, as appropriate."
E
Thus, there is no doubt about the fact that there is a
responsibility bestowed upon the Government to protect
and preserve the tanks, which are an important part of the
environment of the area."
F 39. In the case of Manohar Lal Sharma vs. Principal
Secretary, (2014) 2 SCC 532, this Court while considering the
power of the police officer observed as under:-
"24. In the criminal justice system the investigation of an
G offence is the domain of the police. The power to
investigate into the cognizable offences by the police
officer is ordinarily not impinged by any fetters. However,
such power has to be exercised consistent with the
statutory provisions and for legitimate purpose. The courts
ordinarily do not interfere in the matters of investigation by
H
STATE OF NCT OF DELHI v. SANJAY 1095
[M.Y. EQBAL, J.]
police, particularly, when the facts and circumstances do A
not indicate that the investigating officer is not functioning
bona fide. In very exceptional cases, however, where the
court finds that the police officer has exercised his
investigatory powers in breach of the statutory provision
putting the personal liberty and/or the property of the citizen B
in jeopardy by illegal and improper use of the power or
there is abuse of the investigatory power and process by
the police officer or the investigation by the police is found
to be not bona fide or the investigation is tainted with
animosity, the court may intervene to protect the personal c
and/or property rights of the citizens."
40. In the case of State of M.P. vs. Ram Singh, (2000) 5
SCC 88, this Court was considering an order by which the High
Court quashed the investigation and consequent proceedings
conducted and concluded by the police under Section 13(1}(e} D
and 13(2) of the Prevention of Corruption Act, 1988 on the
ground that the investigation had not been conducted by an
authorized officer in terms of Section 17 of the Act. The Court
held that the Act was intended to make effective provision for
the prevention of bribery and corruption rampant amongst the E
public servants. It is a social legislation intended to curb illegal
activities of the public servant and is designed to be liberally
construed so as to advance its object. The Court observed:-
"9. The menace of corruption was found to have F
enormously increased by the First and Second World War
conditions. Corruption, at the initial stages, was considered
confined to the bureaucracy which had the opportunities
to deal with a variety of State largesse in the form of
contracts, licences and grants. Even after the war the G
opportunities for corruption continued as large amounts of
government surplus stores were required to be disposed
of by the public servants. As a consequence of the wars
the ~hortage of various goods necessitated the imposition
of controls and extensive schemes of post-war H
1096 SUPREME COURT REPORTS [2014] 9 S.C.R.
A reconstruction involving the disbursement of huge sums of
money which lay in the control of the public servants giving
them a wide discretion with the result of luring them tci the
glittering shine of wealth and property. In order to
consolidate and amend the laws relating to prevention .of
B corruption and matters connected thereto, the Prevention
of Corruption Act, 1947 was enacted which was amended
from time to time. In the year 1988 a new Act.on the subject
being Act 49 of 1988 was enacted with the object of
dealing with the circumstances, contingencies and
c shortcomings which were noticed in the working and
implementation of the 194 7 Act. The law relating to
prevention of corruption was essentially made to deal with
the public servants, not as understood in common parlance
but specifically defined in the Act.
D xxxxx
14. It may be noticed at this stage that a three-Judge
Bench of this Court in H.N. Rishbud v. State of Delhi, AIR
1955 SC 196, had held that a defect or illegality in
E investigation, however serious, has no direct bearing on
the competence or the procedure relating to cognizance
or trial. Referring to the provisions of Sections 190, 193,
195 to 199 and 537 of the Code of Criminal Procedure
(1898) in the context of an offence under the Prevention
F of Corruption Act, 1947, the Court held:
"A defect or illegality in investigation, however serious, has
no direct bearing on the competence or the procedure
relating to cognizance or trial. No doubt a police report
which results from an investigation is provided in Section
G 190 Cr.PC as the material on which cognizance is taken.
But it cannot be maintained that a valid and legal police
report is the foundation of the jurisdiction of the court to
take cognizance. Section 190 Cr.PC is one out of a group
of sections under the heading 'Conditions requisite for
H
STATE OF NCT OF DELHI v. SANJAY 1097
[M.Y. EQBAL, J.]
initiation of proceedings'. The language of this section is A
in marked contrast with that of the other sections of the
group under the same heading, i.e., Sections 193 and 195
to 199.
These latter sections regulate the competence of the court 8
and bar its jurisdiction in certain cases excepting in
compliance therewith. But Section 190 does not. While no
doubt, in one sense, clauses (a), (b) and (c) of Section
190(1) are conditions requisite for taking of cognizance,
it is not possible to say that cognizance on an invalid police C
report is prohibited and is therefore a nullity. Such an
invalid report may still fall either under clause (a) or (b) of
Section 190(1 ), (whether it is the one or the other we need
not pause to consider) and in any case cognizance so
taken is only in the nature of error in a proceeding
antecedent to the trial. To such a situation Section 537 D
Cr.PC which is in the following terms is attracted:
'Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a court of competent
jurisdiction shall be reversed or altered on appeal or E
revision on account of any error, omission or irregularity
in the complaint, summons, warrant, charge, proclamation,
order, judgment or other proceedings before or during trial
or in any inquiry or other proceedings under this Code,
unless such error, omission or irregularity, has in fact F
occasioned a failure of justice.'
If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the
trial which follows it cannot be set aside unless the illegality G
in the investigation can be shown to have brought about a
miscarriage of justice. That an illegality committed in the
course of investigation does not affect the competence and
the jurisdiction of the court for trial is well settled as appears
from the cases in - 'Parbhu v. Emperor, AIR 1944 PC H
1098 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 73, and - 'Lumbhardar Zutshi v. R., AIR 1950 PC 26 "
It further held:
"In our opinion, therefore, when such a breach is brought
to the notice of the court at an early stage of the trial, the
B court will have to consider the nature and extent of the
violation and pass appropriate orders for such
reinvestigation as may be called for, wholly or partly, and
by such officer as it considers appropriate with reference
to the requirements of Section 5-A of the Act. It is in the
c light of the above considerations that the validity or
otherwise of the objection as to the violation of Section
5(4) of the Act has to be decided and the course to be
adopted in these proceedings, determined."
0 41. In the case of Directorate of Enforcement vs. Deepak
Mahajan, (1994) 3 SCC 440, the question came up for
consideration before this Court was as to whether a Magistrate
before whom a person arrested under Section 35 of the Foreign
Exchange Regulation Act, 1973 is produced, has jurisdiction
E to authorize detention of that person under Section 167(2) of
the Code of Criminal Procedure. Answering that question the
Court observed:-
"23. Keeping in view the cardinal principle of law that
every law is designed to further the ends of justice but not
F to frustrate on the mere technicalities, we shall deal with
all those challenges in the background of the principles of
statutory interpretations and of the purpose and the spirit
of the concerned Acts as gathered from their intendment.
G 24. The concerned relevant provisions of the Acts
with which we are concerned, no doubt, pose some
difficulty in resolving the question with regard to the
jurisdiction of the Magistrate authorising detention and
subsequent extension of the same when the provisions of
those Acts are narrowly and literally interpreted. Though
H
STATE OF NCT OF DELHI v. SANJAY 1099
[M.Y. EQBAL, J.]
the function of the courts is only to expound the law and A
not to legislate, nonetheless the legislature cannot be
asked to sit to resolve the difficulties in the implementation
of its intention and the spirit of the law. In such
circumstances, it is the duty of the court to mould or
creatively interpret the legislation by liberally interpreting B
the statute.
xxxxxxxxxxxx
134. There are a series of decisions of various High
Courts, of course with some exception, taking the view that C
a Magistrate before whom a person arrested by the
competent authority under the FERA or Customs Act is
produced, can authorise detention in exercise of his
powers under Section 167. Otherwise the mandatory
direction under the provision of Section 35(2) of FERA or D
Section 104(2) of the Customs Act, to take every person
arrested before the Magistrate without unnecessary delay
when the arrestee was not released on bail under sub-
section (3) of those special Acts, will become purposeless
and meaningless and to say that the courts even in the E
event of refusal of bail have no choice but to set the person
arrested at liberty by folding their hands as a helpless
spectator in the face of what is termed as "legislative
casus omissus" or legal flaw or lacuna, it will become
utterly illogical and absurd." F
42. In the case of Maqboo/ Hussain vs. State of Bombay,
AIR 1953 SC 325, the question that fell for consideration before
the Constitution Bench of this Court was whether by reason of
the proceedings taken by the Sea Customs authorities the
appellant could be said to have been prosecuted and punished G
for the same offence with which he was charged in the court of
the Chief Presidency Magistrate, Bombay. In the said case,
gold had been brought by the appellant from Jeddah in
contravention of the provisions of Foreign Exchange Regulation
H
1100 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Act, 194 7. He was also liable to be prosecuted under the Sea
Customs Act. The prosecution was challenged as being
violative of Article 20(2) of the Constitution. The Constitution
Bench answering the question held as under:
" ... There is no doubt that the act which constitutes an
B
offence under the Sea Customs Act as also an offence
under the Foreign Exchange Regulation Act was one and
the same, viz., importing the gold in contravention of the
notification of the Government of India dated the 25th
August, 1948. The appellant could be proceeded against
c under section 167(8) of the Sea Customs Act as also
under section 23 of the Foreign Exchange Regulation Act
in respect of the said act. Proceedings were in fact taken
under section 167(8) of the Sea Customs Act which
resulted in the confiscation of the gold. Further proceedings
D were taken under section 23 of the Foreign Exchange
Regulation Act by way of filing the complaint aforesaid in
the Court of the Chief Presidency Magistrate, Bombay, and
the plea which was taken by the accused in bar of the
prosecution in the Court of the Chief Presidency
E Magistrate, was that he had already been prosecuted and
punished for the same offence and by virtue of the
provisions of article 20(2) of the Constitution he could not
be prosecuted and punished again."
F 43. This Court further observed that:
"The fundamental right which is guaranteed in
article 20(2) enunciates the principle of "autrefois convict"
or "eouble jeopardy". The roots of that principle are to be
found in the well established rule of the common law of
G England "that where a person has been convicted of an
offence by a court of competent jurisdiction the conviction
is a bar to all further criminal proceedings for the same
offence." (Per Charles J. in Reg. v. Miles 24, Q.B.D. 423:
To the same effect is the ancient maxim "Nemo bis debet
H punire pro uno delicto", that is to say that no one ought to
STATE OF NCT OF DELHI v. SANJAY 1101
[M.Y. EQBAL, J.]
be twice punished for one offence or as it is sometimes A
written "pro eadem causa", that is, for the same cause."
44. In the case of State of Bombay vs. S.L. Apte, AIR 1961
SC 578, the question that fell for consideration was whether in
view of an earlier conviction and sentence under Section 409,
B
IPC, the subse_quent prosecution for an offence under Section
105 of the Insurance Act was barred by Section 26 of the
General Clauses Act and Article 20(2) of the Constitution.
Answering the question, the Constitution Bench of this Court
observed:
c
"14. To operate as a bar the second prosecution and the
consequential punishment thereunder must be for "the
same offence". The crucial requirement, therefore for
attracting the Article is that the offences are the same, i.e.,
they should be identical. If, however, the two offences are D
distinct, then notwithstanding that the allegations of facts
in the two complaints might be substantially similar, the
benefit of the ban cannot be invoked. It is, therefore,
necessary to analyse;and compare not the allegations in
the two complaints but the ingredients of the two offences · E
and see whether their identity is made out. It would be seen
from a comparison of s. 105 of the Insurance Act and
s. 405 of Indian Penal Code (s. 409 of the Indian Penal
Code being only an aggravated form of the same offence)
that though some of the necessary ingredients are common F
they differ in the following :
(1) Whereas under s. 405 of the Indian Penal Code the
accused must be "entrusted" with property or with
"dominion over that property", under s. 105 of the Insurance
Act the entrustment or dominion over property is G
unnecessary; it is sufficient if the manager, director, etc.
"obtains possession" of the property.
(2) The offence of criminal breach of trust (s. 405 of the
Indian Penal Code) is not committed unless the act of H
1102 SUPREME COURT REPORTS (2014] 9 S.C.R.
A misappropriation or conversion or "the disposition in
violation of the law or contract'', is done with a dishonest
intention, but s. 105 of the Insurance Act postulates no
intention and punishes as an offence the mere withholding
of the property - whatever be the intent with which the same
B is done, and the act of application of the property of an
insurer to purposes other than those authorised"oy the Act
is similarly without reference to any intent with which such
application or misapplication is made. In these
circumstances it does not seem possible to say that the
c offence of criminal breach of trust under the Indian Penal
Code is the "same offence" for which the respondents
were prosecuted on the complaint of the company
charging them with an offence under s. 105 of the Insurance
Act.
D 15. This aspect of the matter based on the two offences
being distinct in their ingredients, content and scope was
not presented to the learned Judges of the High Court,
possibly because the decisions of this Court construing and
explaining the scope of Art. 20(2) were rendered later. In
E Om Prakash Gupta v. State of U.P. (1957] S.C.R. 423 the
accused, a clerk of a municipality had been convicted of
an offence under s. 409 of the Indian Penal Code for
having misappropriated sums of money received by him
in his capacity as a servant of the local authority and the
F conviction had been affirmed on appeal, by the Sessions
Judge and in revision by the High Court. The plea raised
by the accused before this Court, in which the matter was
brought by an appeal with special leave, was thats. 409 of
the Indian Penal Code had been repealed by implication
G by the enactment of sub-ss. (1 )(c) and (2) of s. 5 of the
Prevention of Corruption Act because the latter dealt with
an offence of substantially the same type. This court
repelled that contention. It analysed the ingredients of the
two offences and after pointing out the difference in the
crucial elements which constituted the offences under the
H
STATE OF NCT OF DELHI v. SANJAY 1103
[M.Y. EQBAL, J.]
two provisions, held that there was no repeal of s. 409 of A
the Indian Penal Code implied by the constitution of a new
offence under the terms of the Prevention of Corruption
Act. It was the application of this decision and the ratio
underlying it in the context of Art. 20(2) of the Constitution
that is of relevance to the present appeal. The occasion B
for this arose in State of Madhya Pradesh v. Veereshwar
Rao Agnihotry [1957] S.C.R. 868 The respondent was a
tax-collector under a municipality and was prosecuted for
offences among others under s. 409 of the Indian Penal
Code and s. 5(2) of the Prevention of Corruption Act for c
misappropriat+on of sums entrusted to him as such tax-
collector. By virtue of the provision contained in s. 7 of the
Criminal Law Amendment Act, XLVI of 1952, the case
was transferred to a Special Judge who was appointed
by the State Government after the prosecution was 0
commenced before a Magistrate. The Special Judge found
the accused guilty of the offence under s. 409 of the Indian
Penal Code and convicted him to three years' rigorous
imprisonment but as regards the charge under s. 5(2) of
the Prevention of Corruption Act, he acquitted the accused
E
on the ground of certain procedural non-compliance with
the rules as to investigation prescribed by the latter
enactment. The respondent appealed to the High Court
against this conviction and sentence under s. 409 of the
Indian Penal Code and there urged that by reason of his
acquittal in respect of the offence under s. 5(2) of the F
Prevention of Corruption Act, his conviction under s. 409 of
the Indian Penal Code could not also be maintained, the
same being barred by Art. 20(2) of the Constitution. The
High Court of Madhya Bharat accepted this argument and
allowed the appeal and the State challenged the G
correctness of this decision by an appeal to this Court.
Allowing the appeal of the State, Govinda Menon, J.,
delivering the judgment of the Court observed :
''This Court has recently held in Om Prakash Gupta H
1104 SUPREME COURT REPORTS [2014] 9 S.C.R.
A v. The State of U.P. that the offence of criminal
misconduct punishable under s. 5(2) of the
Prevention of Corruption Act, II of 1947, is not
identical in essence, import and content with an
offence under s. 409 of the Indian Penal Code ......
8 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, th~re can be no objection to a trial and
conviction under s. 409 of the Indian Penal Code,
c even if the respondent has been acquitted of an
offence under s. 5(2) of the Prevention of Corruption.
Act II of 1947 ....... The High Court also relied on
Art. 20 of the Constitution for the order of acquittal
but that Article cannot apply because the
respondent was not prosecuted after he had
D
already been tried and acquitted for the same
offence in an earlier trial and, therefore, the well-
known maxim "Nemo debet bis vexari, si constat
curiae quod sit pro una et eadem causa" (No man
shall be twice punished, if it appears to the court
E that it is for one and the same cause) embodied in
Art. 20 cannot apply."
45. In the case of T.S. Baliah vs. /TO, AIR 1969 SC 701,
the question that arose for consideration before this Court was
F whether the appellant could be simultaneously prosecuted
under Section 177, IPC and for violation of Section 52 of the
Income Tax Act, 1922. Considering the provisions of Section
26 of the General Clauses Act, this Court held as under:
"6 ..... A plain reading of the section shows that there is
G
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
H
STATE OF NCT OF DELHI v. SANJAY 1105
[M.Y. EQBAL, J.]
prosecuted and punished under either or both the A
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.
7. It was then contended on behalf of the appellant that the
B
prosecution is illegal as complaint petition was required
to be riled by the Inspecting Assistant Commissioner under
the 1922 Act. In our opinion, there is no substance in this
argument, Section 53 of the 1922 Act only requires that a
person shall not be proceeded against for an offence
under Section 51 or Section 52 of the 1922 Act "except at C
the instance of the Inspecting Assistant Commissioner". It
is not disputed in the present case that the respondent has
filed complaint petitions on the authority of the Inspecting
Assistant Commissioner. There is no statutory requirement
that the complaint petition itself must be filed by the D
Inspecting Assistant Commissioner. The clause "at his
instance" in Section 53 of the 1922 Act only means "on his
authority" and it is therefore sufficient compliance of the
statutory requirement if the complaint petition is filed by the
respondent on being authorised by the Inspecting Assistant E
Commissioner."
46. In the case of Collector of Customs vs. Vasantraj
Bhagwanji Bhatia, 1988 (3) SCC 467, the question that arose
for consideration before this Court was as to whether a person F
prosecuted under the Customs Act, 1962 was also liable to be
prosecuted under the Gold (Control) Act, 1968. In that case,
person was acquitted from the charge of commission of offence
under the Customs Act. Considering the question, whether
acquittal of that person will create a bar for subsequent G
prosecution under the Gold (Control) Act, 1968, this Court
observed:
"It is therefore evident that the ingredients required to be
established in respect of the offence under the Customs
Act are altogether different from the ones required to be H
1106 SUPREME COURT REPORTS [2014] 9 S.C.R.
A established for an offence under the Gold (Control) Act. In
respect of the former, the prosecution has to establish that
there was a prohibition against the import into Indian sea
waters of goods which were found to be in the possession
of the offender. On the other hand in respect of the offence
B under the Gold (Control) Act, it is required to be
established that the offender was in possession of primary
gold meaning thereby gold of a purity of not less than 9
carats in any unfinished or semi-finished form. In regard
to the latter offence it is not necessary to establish that
c there is any prohibition against the import of gold into
Indian sea waters. Mere possession of gold of purity not
less than 9 carats in any unfinished or semi-finished form
would be an offence under the Gold Control Act. It is
therefore stating the obvious to say that the ingredients of
the two offences are altogether different. Such being the
D
case the question arises whether the acquittal for the
offences under the Customs Act which requires the
prosecution to establish altogether different ingredients
operates as a bar to the prosecution of the same person
in connection with the charge of having committed the
E offence under the Gold (Control) Act."
47. In the case of Leo Roy Frey vs. Thomas Dana, AIR
1958 SC 119, the question that arose for consideration before
the Constitution Bench of this Court was as to whether
F conviction of a person for an offence under Section 157(8)(c)
of the Customs Act will bar a subsequent trial for conspiracy,
this Court observed that:
"The proceedings before the Customs authorities were
under s. 167(8) of the Sea Customs Act. Under s. 186 of
G
that Act, the award of any confiscation, penalty or
increased rate of duty under that Act by an officer of
Customs does not prevent the infliction of any punishment
to which the person affected thereby is liable under any
other law. The offences with which the petitioners are now
H
STATE OF NCT OF DELHI v. SANJAY 1107
[M.Y. EQBAL, J.]
charged include an offence under s. 1208, Indian Penal A
Code. Criminal conspiracy is an offence created and
made punishable by the Indian Penal Code. It is not an
offence under the Sea Customs Act. The offence of a
conspiracy to commit a crime is a different offence from
the crime that is the object of the conspiracy because the B
conspiracy precedes the commission of the crime and is
complete before the crime is attempted or completed,
equally the crime attempted or completed does not require
the element of conspiracy as one of its ingredients. They
are, therefore quite separate offences. This is also the c
view expressed by the United States Supreme Court in
United States v. Rabinowich (1915) 238 U.S. 78. The
offence of criminal conspiracy was not the subject matter
of the proceedings before the Collector of Custr ;s and
therefore it cannot be said that the petitioners have already 0
been prosecuted and punished for the "same offence". It
is true that the Collector of Customs has used the words
"punishment" and "conspiracy". but those words were used
in order to bring out that each of the two petitioners was
guilty of the offence under s. 167(8) of the Sea Customs
Act. The petitioners were not and could never be charged
E
with criminal conspiracy before the Collector of Customs
and therefore Art. 20(2) cannot be invoked. In this view of
the matter it is not necessary for us, on the present
occasion, to refer to the case of Maqbool Hussain v. The
State of Bombay1953 SCR730 (AIR 1953 SC 325) and F
to discuss whether the words used in Art. 20 do or do not
contemplate only proceedings of the nature of criminal
proceedings before a court of law or a judicial tribunal so
ordinarily understood. In our opinion, Art. 20 has no
application to the facts of the present case. No other points G
having been urged before us, these applications must be
dismissed."
48. Similar provision had been made in the Wild Life
(Protection) Act, 1972. Section 55 of the said Act is peri metria H
1108 SUPREME COURT REPORTS [2014] 9 S.C.R.
A of Section 21 of the MMDR Act. Section 55 of the Wild Life
(Protection) Act, reads as under:
"55. No court shall take congnizance of any offence against
this Act except on the complaint of the Chief Wild Life
Warden or such other officer as the State Government may
B
authorize in this behalf."
49. In the case of State of Bihar vs. Murad Ali Khan and
others, (1988) 4 sec 655, accusation was made against the
persons by alleging that they shot and killed an elephant and
C removed ivory tusks of the elephant. On the basis of the
complaint lodged with the Judicial Magistrate, cognizance of
the offence was taken and process was issued. It was at the
same time that the Police registered a case under Sections
447, 429 and 379, IPC read with Sections 54 and 39 of the
D Wild Life (Protection) Act, 1972 and the matter was
investigated by the Police. At this stage, one of the accused
persons moved the High Court under Section 482, Cr.P.C. to
quash the order of the Magistrate to take cognizance of the
alleged offence. The High Court took the view that Section 210,
E Cr.P.C. is attracted and that as an investigation by the Police
was under progress in relation to the same offence, the learned
Magistrate would be required to stay the proceedings on the
complaint. The High Court further held that learned Magistrate
acted without jurisdiction in taking cognizance of the offence.
F The matter ultimately came to this Court at the instance of State
of Bihar. Holding that Section 210 was not attracted, Their
Lordships held:
"24. We are unable to accept the contention of Shri R.F.
Nariman that the specific allegation in the present case
G concerns the specific act of killing of an elephant, and that
such an offence, at all events, falls within the overlapping
areas between of Section 429 IPC on the one hand and
Section 9(1) read with Section 50(1) of the Act on the
other and therefore constitutes the same offence. Apart
H from the fact that this argument does not serve to support
STATE OF NCT OF DELHI v. SANJAY 1109
[M.Y. EQBAL, J.]
the order of the High Court in the present case, this A
argument is, even on its theoretical possibilities, more
attractive than sound. The expression "any act or omission
vvhich constitutes any offence under this Act" in Section 56
of the Act, merely imports the idea that the same act or
omission might constitute an offence under another law and B
could be tried under such other law or laws also.
xxxxxxxx
26. Broadly speaking, a protection against a second or
multiple punishment for the same offence, technical C
complexities aside, includes a protection against re-
prosecution after acquittal, a protection against re-
prosecution after conviction and a protection against
double or multiple punishment for the same offence. These
protections have since received constitutional guarantee D
under Article 20(2). But difficulties arise in the application
of the principle in the context of what is meant by "same
offence". The principle in American law is stated thus:
"The proliferation of technically different offences
E
encompassed in a single instance of crime behaviour has
increased the importance of defining the scope of the
offence that controls for purposes of the double jeopardy
guarantee.
Distinct statutory provisions will be treated as involving F
separate offences for double jeopardy purposes only if
'each provision requires proof of an additional fact which
the other does not' (B/ockburgerv. United States). Where
the same evidence suffices to prove both crimes, they are
the same for double jeopardy purposes, and the clause G
forbids successive trials and cumulative punishments for
the two crimes. The offences must be joined in one
indictment .and tried together unless the defendant
requests that t~ey be tried separately.(Jeffers v.United
States,[1977]432 US 137)" H
1110 SUPREME COURT REPORTS (2014] 9 S.C.R.
A 27. The expression "the same offence", "substantially the
same offence" "in effect the same offence" or "practically
the same", have not done much to lessen the difficulty in
applying the tests to identify the legal common
denominators of "same offence". Friedland in Double
B Jeopardy (Oxford 1969) says at p. 108:
"The trouble with this approach is that it is vague and hazy
and conceals the thought processes of the court. Such an
inexact test must depend upon the individual impressions
of the judges and can give little guidance for future
c decisions. A more serious consequence is the fact that a
decision in one case that two offences are 'substantially
the same' may compel the same result in another case
involving the same two offences where the circumstances
may be such that a second prosecution should be
D permissible .... "
28. In order that the prohibition is attracted the same act
must constitute an offence under more than one Act. If
there are two distinct and separate offences with different
E ingredients under two different enactments, a double
punishment is not barred. In Leo Roy Frey v.
Superintendent, District Jail, the question arose whether
a crime and the offence of conspiracy to commit it are
different offences. This Court said: ·
F "The offence of conspiracy to commit a crime is a different
offence from the crime that is the object of the conspiracy
because the conspiracy precedes the commission of the
crime and is complete before the crime is attempted or
completed, equally the crime attempted or completed does
G not require the element of conspiracy as one of its
ingredients. They are, therefore, quite separate offences."
50. It is well known principle that the rule against double
jeopardy is based on a maxim nemo debet bis vexari pro una
H et eadem causa, which means no man shall be put in jeopardy
STATE OF NCT OF DELHI v. SANJAY 1111
[M.Y. EQBAL, J.]
twice for one and the same offence. Article 20 of the A
Constitution provides that no person shall be prosecuted or
punished for the offence more than once. However, it is also
settled that a subsequent trial or a prosecution and punishment
has no bar if the ingredients of the two offences are distinct.
B
51. In the case of State of Rajasthan vs. Hat Singh, (2003)
2 sec 152, a person was prosecuted for violation of prohibitory
order issued by the Collector under Sections 5 and 6 of the
Rajasthan Sati (Prevention) Ordinance, 1987. Against the said
Ordinance, mass rally took place which led to the registration C
of Fl Rs against various persons for violation of prohibitory order
under Sections 5 and 6 of the Act. Persons, who were arrested,
moved a petition challenging the vires of the Ordinance and the
Act. The High Court upholding the vires of the Ordinance/Act
held that the provisions of Sections 5 and 6 overlapped each
other and that a person could be found guilty only of the offence D
of contravening a prohibitory order under either Section 6(1)
or Section 6(2) of the Act. This Court discussing the doctrine
of double jeopardy and Section 26 of the General Clauses Act
held as under:
E
"We are, therefore, of the opinion that in a given case,
same set of facts may give rise to an offence punishable
under Section 5 and Section 6(3) both. There is nothing
unconstitutional or illegal about it. So also an act which is
alleged to be an offence under Section 6(3) of the Act and F
if for any reason prosecution under Section 6(3) does not
end in conviction, if th"\ ingredients of offence under
Section 5 are made out, may still be liable to be punished
under Section 5 of the Act. We, thereft>re, do not agree
with the High Court to the extent to which it has been held
G
that once a prohibitory order under sub-section (1) or (2)
has been issued, then a criminal act done after the
promulgation of the prohibitory order can be punished only
under Section 6(3) and in spite of prosecution under
Section 6(3) failing, on the same set of facts the person
H
1112 SUPREME COURT REPORTS [2014] 9 S.C.R.
A proceeded against cannot be held punishable under
Section 5 of the Act although the ingredients of Section 5
are fully made out.
52. Learned counsel appearing for the appellant put heavy
reliance on the decision of this Court in the case of Avtar Singh
8
vs. State of Punjab, AIR 1965 SC 666, in which the appellant
was prosecuted and convicted for theft of electrical energy
under Section 39 of the Indian Electricity Act, 1910. The said
conviction was challenged on the ground that as his prosecution
was for an offence against the Act it was incompetent as it had
C not been instituted at the instance of any person mentioned in
Section 50 of the Act. Section 39 of the Act provides that if a
person dishonestly abstracts, consumes or uses any energy
shall be deemed to have committed theft within the meaning
of the Indian Penal Code. It is not in dispute that the appellant
D had committed the theft mentioned in this section. However,
Section 50 of the Act provides that no prosecution shall be
instituted against any person for any offence against the Act
except at the instance of the Government or an Electrical
Inspector, or of a person aggrieved by the same. This Court
E allowing the appeal held as under:
"We may now refer to certain general considerations also
leading to the view which we have taken. First, we find that
the heading which governs Sections 39 to 50 of the Act is
F "Criminal Offences and Procedure". Obviously, therefore,
the legislature thought that s. 39 created an offence. We
have also said that Sections 48 and 49 indicate that in the
legislature's contemplation s. 39 provided for a
punishment. That section must, therefore, also have been
intended to create an offence to which the punishment was
G
to attach. The word 'offence' is not defined in the Act.
Since for the reasons earlier mentioned, in the legislature's
view s. 39 created an offence, it has to be held that that
was one of the offences to which s. 50 was intended to
apply. Lastly, it seems to us that the object of s. 50 is to
H
STATE OF NCT OF DELHI v. SANJAY 1113
[M.Y. EQBAL, J.]
prevent prosecution for offences against the Act being A
instituted by anyone who chooses to do so because the
offences can be proved by men possessing special
qualifications. That is why it is left only to the authorities
concerned with the offence and the persons aggrieved by
it to initiate the prosecution. There is no dispute that B
s. 50 would apply to the offences mentioned in Sections40
to 47. Now it seems to us that if we are right in our view
about the object of s. 50, in principle it would be impossible
to make any distinction between s. 39 and any of the
sections from s. 40 to 47. Thuss. 40 makes it an offence c
to maliciously cause energy to be wasted. If in respect of
waste of energy s. 50 is to have application, there is no
reason why it should not have been intended to apply to
dishonest abstraction of energy made a theft by s. 39. For
all these reasons we think that the present is a case of an 0
offence against the Act and the prosecution in respect of
that offence would be incompetent unless it was instituted
at the instance of a person named in s. 50."
53. With due respect, the ratio decided by this Court can
be severally distinguished for the reason that the complaint or E
allegation of dishonest abstraction of electricity as contemplated
under Section 39 making the act as a theft within the meaning
of the Indian Penal Code and be made and proved by person
possessing special qualification. In other words, whether there
is a dishonest abstraction of electrical energy, as mentioned F
in Section 39 of the Act, can be ascertained only by a person/
Engineers having special qualification in that field.
54. Last but not least, in addition to these decisions, in the
case of Institute of Chartered Accountants of India vs. Vimal G
Kumar Surana and another, (2011) 1 SCC 534, this Court has
very elaborately dealt with similar provision under the Chartered
Accountants Act, 1949 (in short, 'C.A. Act'). In that case, the
respondent, who passed the Chartered Accountant
examination but was not a member of the appellant's Institute
H
1114 SUPREME COURT REPORTS [2014] 9 S.C.R.
A of Chartered Accounts, allegedly represented before the
Income Tax Department and the authorities constituted under
the Madhya Pradesh Trade Tax Act on the basis of power of
attorney or as legal representative and submitted documents
such as audit reports and certificates required to be issued by
B the Chartered Accountants by preparing forged seals and
thereby impersonated himself as Chartered Accountant. He
was accordingly prosecuted and charge was framed against
him under Sections 419, 468, 471 and 472, IPC. The
respondent challenged the order by filing revision under Section
c 397, Cr.P.C. The Additional Sessions Judge set aside the
order of the Magistrate and remanded the case to the trial court
with a direction to decide whether there are sufficient grounds
for framing charges under Sections 419, 468, 471 and 473, IPC
read with Sections 24 and 26 of the C.A. Act. After remand,
the trial court passed an order holding that there was no basis
0
for framing any charge against respondent under the IPC. The
Magistrate fmther held that cognizance of offences under
Sections 24 and 26 of the C.A. Act cannot be taken because
no complaint had been filed by or under the order of the Council
E before the Magistrate. The revision filed against the orders of
the Magistrate was dismissed. The High Court referring
Sections 2, 4, 5 and Section 195(1), Cr.P.C. held that in the
absence of a complaint the Magistrate was not competent to
frame charges against the respondent. The High Court further
held that in view of the special mechanism contained in the
F C.A. Act for prosecution of a person violating
Sections 24, 24A and 26 of the Act, he cannot be prosecuted
under the IPC. The matter finally came to this Court. Allowing
the appeal, this Court considered catena of decisions and held
as under:
G
"24. Such an unintended consequence can be and
deserves to be avoided in interpreting Sections 24-A, 25
and 26 keeping in view the settled law that if there are two
possible constructions of a statute, then the one which
H leads to anomaly or absurdity and makes the statute
STATE OF NCT OF DELHI v. SANJAY 1115
[M.Y. EQBAL, J.]
vulnerable to the attack of unconstitutionality should be A
avoided in preference to the other which makes it rational
and immune from the charge of unconstitutionality. That
apart, the court cannot interpret the provisions of the Act
in a manner which will deprive the victim of the offences
defined in Sections 416, 463, 464, 468 and 471 of his right B
to prosecute the wrongdoer by filing the first intormation
report or complaint under the relevant provisions of CrPC."
xxxxxxxxxxxx
42. The submission of Shri Gupta that the respondent C
cannot be prosecuted for the offences defined under IPC
because no complaint had been filed against him by the
court concerned or authority as per the requirement of
Section 195(1 )(b)(it) CrPC sounds attractive but lacks
merit. The prohibition contained in Section 195 CrPC D
against taking of cognizance by the court except on a
complaint in writing made by the court concerned before
which the document is produced or given in a proceeding
is not attracted in the case like the present one because
the officers of the Income Tax Department and the E
authorities constituted under the Madhya Pradesh Trade
Tax Act, 1995 before whom the respondent is alleged to
have acted on the basis of power of attorney or as legal
representative or produced audit report do not fall within
the ambit of the term "court" as defined in Section 195(3) F
CrPC. Such officer/authorities were neither discharging the
functions of a civil, revenue or criminal court nor could they
be treated as tribunal constituted by or under the Central
or State Act, which is declared to be a court for the
purpose of Section 195."
G
55. 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 H
1116 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 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.
B 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
c private ownership.
56. Reading the provisions of the Act minutely and
carefully, prima facie we are of the view that there is no
complete and absolute bar in prosecuting persons under_the
Indian Penal Code where the offences committed by persons
D are penal and cognizable offence.
57. Sub-section (1A) of Section 4 of the MMDR Act puts
a restriction in transporting and storing any mineral otherwise
than in accordance with the provisions of the Act and the rules
E made thereunder. In other words no person will do mining
activity without a valid lease or license. Section 21 is a penal
provision according to which if a person contravenes the
provisions of Sub-section (1A) of Section 4 shall be prosecuted
and punished in the manner and procedure provided in the Act.
F Sub-section (6) has been inserted in Section 4 by amendment
making the offence cognizable notwithstanding anything
contained in the Code of Criminal Procedure 1973.
58. Section 22 of the Act puts a restriction on the court to
take cognizance of any offence punishable under the Act or any
G rule made thereunder except upon a complaint made by a
person authorized in this behalf.
59. It is very important to note that Section 21 does not
begin with a non-obstante clause. Instead of the words
H "notwithstanding anything contained in any law for the time
STATE OF NCT OF DELHI v. SANJAY 1117
[M.Y. EQBAL, J.]
being in force no court shall take cognizance ..... ", the Section A
begins with the words "no court shall take cognizance of any
offence."
60. It is well known that a non-obstante clause is a
legislative device which is usually employed to give overriding
8
effect to certain provisions over some contrary provisions that
may be found either in the same enactment or some other
enactment, that is to say, to avoid the operation and effect of
all contrary provisions.
61. In Liverpool Borough vs. Turner Lord Campbell C
(1861), 30 L.J. Ch.379, C.J. at page 380 said :-
"No universal rule can be laid down for the
construction of statutes, as to whether mandatory
enactments shall be considered directory only or D
obligatory, with an implied nullification for disobedience.
It is the duty of courts to try to get at the real intention of
the legislature by carefully attending to the whole scope of
the statute to be construed."
62. In Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC E
140 at page 141, the Supreme Court while interpreting the
mandatory and directory provisions of statute observed as
under:-
"We do not think that is right and we deprecate this F
tendency towards technicality; it is the substance that
counts and must take precedence over mere form.
Some rules are vital and go to the root of the matter; they
cannot be broken; others are only directory and a breach
of them can be overlooked provided there is substantial G
compliance with the rules read as whole and provided no
prejudice ensues; and when the legislature does not itself
state which Judges must determine the matter and
exercising a nice discrimination, sort out one class from
the other along broad based, commonsense lines."
H
1118 SUPREME COURT REPORTS [2014) 9 S.C.R.
A 63. The question is whether a statute is mandatory or
directory depends upon the intent of the Legislature and not
upon the language in which the intent is clothed. The meaning
and intention of the legislature must govern, and these are to
be ascertained, not only from the phraseology of the provision,
B but also by considering its nature, its design, and the
consequences which would follow from construing it the one
way or the other.
64. In Maxell on the Interpretation of Statutes 10th Edn.
C at page 381, it is stated thus :-
"On the other hand, where the prescriptions of a
statute relate to the performance of a public duty and where
the invalidation of acts done in neglect of them would work
serious general inconvenience or injustice to persons who
D have no control over those entrusted with the duty without
promoting the essential aims of the legislature, such
prescriptions seem to be generally understood as mere
instructions for the guidance and government of those on
whom the duty is imposed, or, in other words, as directory
·E only. The neglect of them may be penal, indeed, but it does
not affect the validity of the act done in disregard of them."
65. In the case of State of U.P. vs. Babu Ram Upadhya,
AIR 1961 SC 751, while interpreting a particular statute as
mandatory or directory this Court observed :-
F - .
"When a statute uses the word 'shall', 'prima facie',
it is mandatory, but the court may ascertain the real
intention of the legislature by carefully attending to the
whole scope of the statute. For ascertaining the real
G intention of the legislature the court may consider, inter alia,
the nature and the design of the statute, and the
consequences which would follow from construing it the
one way or the other, the impact of other provisions
whereby the necessity of complying with the provisions in
H question is avoided, the circumstance, namely, that the
STATE OF NCT OF DELHI v. SANJAY 1119
[M.Y. EQBAL, J.]
statute provides for a contingency of the non-compliance A
with the provisions, the fact that the non-compliance with
the provisions is or is not visited by some penalty, the
serious or trivial consequences that flow therefrom, and,
above all, whether the object of the legislation will be
defeated or furthered." B
66. 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 C
minerals including sand from the river bed.
67. 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, D
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. E
68. There cannot be any dispute with regard to restrictions
imposed under the MMDR Act and remedy provided therein.
In any case, where there is a mining activity by any person in
contravention of the provisions of Section 4 and other sections
F
of the Act, the officer empowered and authorized under the Act
shall exercise all the powers including making a complaint
before the jurisdictional magistrate. It is also not in dispute that
the Magistrate shall in such cases take cognizance on the basis
of the complaint filed before it by a duly authorized officer. In
case of breach and violation of Section 4 and other provisions G
of the Act, the police officer cannot insist Magistrate for taking
cognizance under the Act on the basis of the record submitted
by the police alleging contravention of the said Act. In other
words, the prohibition contained in Section 22 of the Act
against prosecution of a person except on a complaint made H
1120 SUPREME COURT REPORTS [2014] 9 S.C.R.
A by the officer is attracted only when such person sought to be
prosecuted for contravention of Section 4 of the Act and not
for any act or omission which constitute an offence under Indian
Penal Code.
69. However, there may be situation where a person
8
without any lease or licence or any authority enters into river
and extracts sands, gravels and other minerals and remove or
transport those minerals in a clandestine manner with an intent
to remove dishonestly those minerals from the possession of
C the State, is laible to be punished for committing such offence
under Sections 378 and 379 of the Indian Penal Code.
70. From a C:ose reading of the provisions of MMDR Act
and the offence defined under Section 378, lPC, it is manifest
that the ingredients constituting the offence are different. The
D 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
E possession without the consent, constitute an offence of theft.
71. 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
F 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 theftofsana
and gravels from the Government land, the police can register
G 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.
H 72. After giving our thoughtful consideration in the matter,
STATE OF NCT OF DELHI v. SANJAY 1121
[M.Y. EQBAL, J.]
in the light of relevant provisions of the Act vis-a-vis the Code A
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 B
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 c
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.
D
Devika Gujral Appeals disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "illegal sand mining"Sign in to search