REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1920 OF 2019  ARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019  

KANWAR PAL SINGH ..... APPELLANT(S)

VERSUS

THE  STATE  OF  UTTAR  PRADESH  AND ANOTHER

..... RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

Leave granted.

2. Kanwar Pal Singh, the appellant,  impugns the order dated 22nd

July 2019 whereby the High Court of Judicature at Allahabad has

dismissed his petition under Section 482 of the Code of Criminal

Procedure,  1973  (‘Code’  for  short)  for  quashing  criminal

prosecution under Section 379 of  the Indian Penal Code, 1860

(‘IPC’ for short),  Rules 3, 57 and 7 of  the Uttar  Pradesh Minor

Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines

and  Minerals  (Development  and  Regulation)  Act,  1957  (‘Mines

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Regulation Act’ for short), and Sections 3 and 4 of the Prevention

of Damage to Public Property Act, 1984 arising out of Crime Case

No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar

Pradesh.  The  appellant  had  also  challenged,  without  success

before the High Court, the order dated 8th February 2019 passed

by  the  Chief  Judicial  Magistrate  taking  cognizance  and

summoning the appellant for trial.

3. In brief, the facts of the case are that on the basis of a complaint

filed by one Mr.  S.K.  Pal,  Surveyor,  Mines Department,  District

Mirzapur, FIR No. 0289 dated 15th November 2018 was registered

at  Police  Station,  Vindyachal,  inter  alia recording  that  on  2nd

November  2018,  during inspection of  the mining site  in  Village

Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had

noticed illegal  mining whereupon a report  vide letter  dated 12th

November 2018 was submitted to the Sub-Divisional Magistrate,

Sadar. The appellant is a Director of M/s. Kanwar Enterprises Pvt.

Ltd., which was granted rights to excavate sand vide mining lease

over  Plot  No.  2/4,  measuring  12.35  acre  and  Plot  No.  2/5

measuring 12.35 acre in Village Nandni. However, it is alleged that

the  appellant  was  mining  sand  outside  the  permitted  area  in

Village  Babhni  numbered  as  534/2  where  he  had  illegally

excavated a  pit  50 feet  long,  50  feet  wide and 2  meter  deep.

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Consequently, the District Magistrate had ordered for immediate

registration of the FIR under the aforesaid provisions.

4. Though  a  number  of  contentions  were  raised  before  the  High

Court, the learned senior counsel for the appellant has during the

course of arguments before us restricted his submissions to the

violation of Section 22 of the Mines Regulation Act and the legal

effect thereof. Referring to the contents of the FIR, it is submitted

that the appellant has been wrongly charge-sheeted by the police

for the offences, as at the best there was violation of Section 4,

which is punishable under Section 21 of the Mines Regulation Act.

It is highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a

valid  lease  for  mining.  As  per  Section  22  no  court  can  take

cognizance  of  the  offences  under  the  Mines  Regulation  Act,

except on a complaint in writing by a person authorised by the

Central  or  State  Government.  The  State  police  not  being

authorised, could not have filed the charge-sheet/complaint. The

contention predicated on Section 22 of the Mines Regulation Act is

made  by  relying  upon  the  judgment  of  this  Court  in  Jeewan

Kumar Raut and Another  v.  Central Bureau of Investigation1.

In the written submissions filed by the appellant, a relatively new

plea  and  contention  has  been  raised  by  relying  upon  the

1 (2009) 7 SCC 526

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judgments of this Court in  Belsund Sugar Company Limited v.

State of Bihar,2 Sharat Babu Digumarti v. Government of NCT

of Delhi3 and Suresh Nanda v. Central Bureau of Investigation4

to  urge  that  the  Mines  Regulation  Act  being  a  special  statute,

prosecution for an offence under Section 379 of the IPC would not

be maintainable.  The judgment  of  this  Court  in  State (NCT of

Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for

the  offence  against  illegal  sand  mining  in  Sanjay (supra)  was

registered  suo moto due to non-production of any document to

establish mining rights and therefore, the ratio in that case would

apply only to cases of illegal mining where the mining lease had

already been revoked or there was no subsisting mining lease.

5. We  find  the  submission  of  the  appellant  to  be  untenable.  In

Sanjay  (supra),  a  Division  Bench  of  this  Court  had  decided

appeals preferred against the conflicting judgments of the Delhi

High Court, Gujarat High Court, Kerala High Court, Calcutta High

Court,  Madras  High  Court  and  Jharkhand  High  Court  on  the

question whether  a person can be prosecuted for  the offences

under Sections 379/114 and other provisions of the IPC on the

2 (1999) 9 SCC 620 3 (2017) 2 SCC 18 4 (2008) 3 SCC 674 5 (2014) 9 SCC 772

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allegations of  illegal  mining in  view of  Section 22 of  the Mines

Regulation Act, which reads as under:

“22.  Cognizance  of  offences.— No  court  shall  take cognizance of any offence punishable under this Act or any rules  made  thereunder  except  upon  complaint  in  writing made by a person authorised in this behalf  by the Central Government or the State Government.”

After  adverting to the provisions of  the Code, namely,  Sections

2(c), 2(d) and 2(h) which define ‘cognizable offence’, ‘complaint’

and ‘investigation’ respectively, this Court had referred to Section

4 of the Code, which reads as under:   

“4. Trial  of offences under the Indian Penal Code and other laws.— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being  in  force  regulating  the  manner  or  place  of investigating, inquiring into, trying or otherwise dealing with such offences.”

As per sub-section (2) to Section 4, all offences under any law,

other than the IPC, can be investigated, inquired into and tried

under the Code, subject to any enactment regulating the manner

or place of investigation, trial etc. of such offences. Section 21 of

the  Mines  Regulation  Act,  it  was  observed,  states  that  the

offences specified thereunder are cognizable. Section 41 of the

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Code was referred to elucidate that the police has the power to

arrest  without  warrant  in  case of  cognizable offences.  Sections

149 to 152 of Chapter XI of the Code that require the police to

prevent  cognizable  offences  either  by  arrest  or  otherwise,  etc.

were referred,  to hold that  the aforementioned provisions 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 also to prosecute such persons in accordance

with law.

Accordingly, in Sanjay (supra) it was held that the investigation of

the offences is within the domain of the police and the power of a

police  officer  to  investigate  into  cognizable  offences  is  not

ordinarily  impinged  by  any  fetters  albeit  the  power  must  be

exercised  as  per  the  statutory  provisions  and  for  legitimate

purposes. The courts would interfere only when while examining

the  case  they  find  that  the  police  officer  in  exercise  of  the

investigatory powers has breached the statutory provisions and

put the personal liberty and/or the property of a citizen in jeopardy

by  an  illegal  and  improper  use  of  the  powers  or  when  the

investigation by the police is not found to be bona fide or when the

investigation is tainted with animosity. While examining the issue,

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this Court in  Sanjay (supra) took notice of the decision in  H.N.

Rishbud v. State of  Delhi6 wherein this  Court  has held that  a

defect or illegality in investigation, however serious, has no direct

bearing on the competence or the procedure relating to the taking

of the cognizance or trial. The cardinal principle of law as noted by

this Court in Directorate of Enforcement v. Deepak Mahajan7 is

that every law is designed to further the ends of justice and should

not be frustrated on mere technicalities. The public trust doctrine

was  cited  and  applied  to  underscore  the  principle  that  certain

resources like air,  sea, water,  forests and minerals are of great

importance to the people as a whole and that the government is

enjoined  to  hold  such  resources  in  trust  for  the  benefit  of  the

general  public  and  to  use  them for  their  benefit  than  to  serve

private interests.  

6. This Court in Sanjay (supra) has cited several decisions wherein

the challenge to the prosecution on the ground that there can be

no multiplicity of offences under different enactments was resolved

and answered by relying upon Section 26 of the General Clauses

Act,  which  we  would  like  to  reproduce  for  the  sake  of

convenience:

6 AIR 1955 SC 196 7 (1994) 3 SCC 440

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“26. Provision as to offences punishable under two or more  enactments.—  Where  an  act  or  omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Section 26 of  the General  Clauses Act  permits  prosecution for

‘different offences’ but bars prosecution and punishment twice for

the ‘same offence’ under two or more enactments. The expression

‘same offence’ has been interpreted by this Court  in numerous

decisions  viz.,  Maqbool  Hussain  v.  State  of  Bombay8 with

reference  to  the  provisions  of  the  Sea  Customs  Act  and  the

Foreign Exchange Regulation Act, 1947;  Om Parkash Gupta  v.

State of U.P.9 and State of Madhya Pradesh v. Veereshwar Rao

Agnihotri10 with reference to Section 409 of the IPC and Section

5(2) of the Prevention of Corruption Act;  T.S. Baliah v.  ITO11 with

reference to Section 52 of the Income Tax Act, 1922 and Section

177 of the IPC;  Collector of Customs v.  Vasantraj Bhagwanji

Bhatia12, with reference to the provisions of the Customs Act 1962

and the provisions of the Gold (Control) Act, 1968; State of Bihar

v.  Murad Ali Khan13 with reference to the provisions of Sections

447,  429  and  379  of  the  IPC  and  provisions  of  the  Wildlife

8 AIR 1953 SC 325 9 AIR 1957 SC 458 10 AIR 1957 SC 592 11 AIR 1969 SC 701 12 (1988) 3 SCC 467 13 (1988) 4 SCC 655

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(Protection)  Act,  1972;  Avtar  Singh  v.  State  of  Punjab14 with

reference  to  Section  39  of  the  Electricity  Act,  1910  and  the

provisions  of  theft  under  the  IPC;  and  Institute  of  Chartered

Accountants of India v. Vimal Kumar Surana15 with reference to

the  provisions  of  the  Chartered  Accountants  Act,  1949  and

offences  under  Sections  419,  468,  471  and  472  of  the  IPC.

Elucidating on the provisions of Section 4 read with Sections 21

and 22 of the Mines Regulation Act and the offence under Section

379 of the IPC, it was observed in Sanjay (supra):   

“69.  Considering  the  principles  of  interpretation  and  the wordings used in Section 22, in our considered opinion, the provision  is  not  a  complete  and  absolute  bar  for  taking action by the police for illegal  and dishonestly  committing theft of minerals including sand from the riverbed. 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 ecosystem of  the  rivers  and  safety  of  bridges.  It  also  weakens riverbeds, 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 groundwater levels.

70. 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 of the Act, the officer empowered and authorised 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

14 AIR 1965 SC 666 15 (2011) 1 SCC 534

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cognizance on the basis of the complaint filed before it by a duly authorised officer.  In case of  breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the 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 by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.

71.  However,  there  may  be  a  situation  where  a  person without any lease or licence or any authority enters into river and extracts sand, gravel 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 of the Penal Code.

72. From a close reading of the provisions of the MMDR Act and  the  offence  defined  under  Section  378  IPC,  it  is manifest  that  the  ingredients  constituting  the  offence  are different.  The  contravention  of  terms  and  conditions  of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State’s possession without the consent, constitute  an  offence  of  theft.  Hence,  merely  because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing  theft  of  sand  and  minerals  in  the  manner mentioned above by exercising power under the Code of Criminal  Procedure  and  submit  a  report  before  the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the  purpose  of  taking  cognizance  as  provided  in  Section 190(1)(d) of the Code of Criminal Procedure.”

     (emphasis supplied)

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7. As noticed above, in the written submissions the appellant  has

relied upon Belsund Sugar Company Limited (supra), Sharat

Babu Digumarti  (supra) and Suresh Nanda (supra) to contend

that where there is a special act dealing with a special subject,

resort cannot be taken to a general act.  The said submission has

no force in view of the ratio in  Sanjay (supra) as quoted above

which specifically refers to Section 26 of the General Clauses Act

and states that the offence under Section 4 read with Section 21

of  the  Mines  Regulation  Act  is  different  from  the  offence

punishable  under  Section  379  of  the  IPC.  Thus,  they  are  two

‘different’ and not the ‘same offence’. It would be relevant to state

here that the Delhi High Court in its decision reported as Sanjay

v. State16, which was impugned in  Sanjay (supra), had accepted

an identical argument to hold that once an offence is punishable

under Section 21 of the Mines Regulation Act, the offence would

not be punishable under Section 379 of the IPC. This reasoning

was rejected by this  Court  and the judgment of  the Delhi  High

Court  was  reversed.  The  contention  relying  on  the  same

reasoning before us, therefore, must be rejected.  

8. We would also reject the contention raised by the appellant in the

16 (2009) 109 DRJ 594

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written submissions that the alleged theft of sand is not punishable

under Section 379 read with Section 378 of the IPC as sand is an

immovable property as per Section 3 (26) of the General Clauses

Act.  In  the  present  case,  sand  had  been  excavated  and  was

thereupon no longer an immovable property. The sand on being

excavated would  lose its  attachment  to  the earth,  ergo,  it  is  a

movable  property  or  goods  capable  of  being  stolen.  {See

Explanation 1 to Section 378 of the IPC and  Sanjay  (supra) as

quoted above}

9. We would in  the end refer  to  the judgment  in  Jeewan Kumar

Raut (supra) on which considerable reliance was placed by the

appellant  at  the  time  of  the  hearing.  The  said  judgment  was

distinguished in  Institute of Chartered Accountants  (supra) by

observing  that  the  provisions  of  the  Transplantation  of  Human

Organs Act, 1994 (‘TOHO Act’ for short) were different and were

not similar to the provisions of sub-section 2 to Section 24-A, 25

and 26  of  the Chartered  Accountants  Act  as  the TOHO Act  is

hedged  with  a  non-obstante clause.  We  would  like  to  further

elucidate and explain that  in  Jeewan Kumar Raut (supra) this

Court  was examining the right  of  the appellant  therein to claim

statutory bail  in  terms of  sub-section (2)  to  Section 167 of  the

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Code on the ground that the Central Bureau of Investigation (‘CBI’

for short) had failed to file the charge-sheet within 90 days from

the date of arrest. Relying on Section 22 of the TOHO Act, which

mandates filing of a complaint by a person duly authorised by a

competent  authority,  it  was  observed  that  the  TOHO  Act  is  a

special law which deals with the subjects mentioned therein, viz.,

offences relating to the removal of human organs, etc.  Ordinarily,

any person can set the criminal law into motion but the legislature

keeping in view the sensitivity and importance of the subject had

provided that the violations under the TOHO Act would be dealt

with by the authorities specified therein. Thereafter, reference was

made to Section 4 of the Code as cited above, to hold that the

TOHO Act being a special  Act,  the matters relating to offences

covered thereunder would be governed by the provisions of said

Act,  which  would  prevail  over  the  provisions  of  the  Code.

Reference was made to clause (iv) of sub-section (3) to Section

13 of the TOHO Act which states that the appropriate authority

shall investigate any complaint of breach of any of the provisions

of the said Act or any rules made thereunder and take appropriate

action. There is no similar provision under the Mines Regulation

Act  i.e.  the  Mines  and Minerals  (Development  and Regulation)

Act, 1957.

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10. In  Jeewan Kumar Raut (supra), it  was noted that the CBI has

been designated as an appropriate authority under the provisions

of the TOHO Act and therefore entitled to carry on investigation. In

this context,  it  was observed that  Section 22 of  the TOHO Act

prohibits taking of cognizance except on a complaint made by an

appropriate authority and therefore the police report filed by the

CBI  was  only  a  complaint  petition  made  by  an  appropriate

authority in terms of Section 22 of the TOHO Act.  Consequently,

sub-section (2) to Section 167 of the Code would not be attracted

as the CBI could not have submitted a police report in terms of

sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut

(supra)  was,  thus,  dealing  with  a  contention and  issue entirely

different from the one raised in the present case. It is undisputed

that decisions of the courts cannot be blindly applied in disjunction

of the factual circumstances and issues of each case. The court

decisions  expound  on  the  law  as  applicable  to  the  specific

circumstances  of  each  case  and  such  exposition  may  not

therefore be necessarily applicable to another case given its own

peculiarities. Therefore, the contention predicated on the ratio in

Jeewan Kumar Raut (supra) holds no merit.

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11. We would again advert to the decision in  Sanjay  (supra) which

had overruled the decision of the Calcutta High Court in Seema

Sarkar v. State17 wherein the High Court held the proceedings to

be invalid and illegal as the Magistrate had taken cognizance on

the basis of a charge-sheet submitted by the police under Section

21(2) of  the Mines Regulation Act  and Section 379 of the IPC,

observing that  the cognizance was one that  cannot  be split  or

divided.  The  High  Court  had  further  observed  that  as  the

complaint  was  not  made  in  terms  of  Section  22  of  the  Mines

Regulation Act, the cognizance was bad and contrary to law.  We

have already noted the decision of the Delhi High Court which had

directed that the FIR should not be treated as registered under

Section 379 of the IPC but only under Section 21 of the Mines

Regulation Act. These decisions of the Calcutta High Court and

the Delhi High Court were reversed and set aside by this Court in

Sanjay  (supra)  after  referring  to  Section  26  of  the  General

Clauses Act and the meaning of the expression ‘same offence’, to

observe that the offence under Section 21 read with Section 4 of

the Mines Regulation Act and Section 379 of the IPC are different

and  distinct.  The  aforesaid  reasoning  compels  us  to  reject  the

contention of the appellant that the action as impugned in the FIR

17 (1995) 1 Cal LT 95

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is a mere violation of Section 4 which is an offence cognizable

only under Section 21 of the Mines Regulation Act and not under

any  other  law.  There  is  no  bar  on  the  Court  from  taking

cognizance  of  the  offence  under  Section  379  of  the  IPC.  We

would  also  observe  that  the  violation  of  Section  4  being  a

cognizable offence, the police could have always investigated the

same, there being no bar under the Mines Regulation Act, unlike

Section 13(3)(iv) of the TOHO Act.  

12. In view of the aforesaid discussion, we would uphold the order of

the  High  Court  refusing  to  set  aside  the  prosecution  and

cognizance of the offence taken by the learned Magistrate under

Section 379 of the IPC and Sections 3 and 4 of the Prevention of

Damage to Public Property Act. We would, however, clarify that

prosecution and cognizance under Section 21 read with Section 4

of the Mines Regulation Act will not be valid and justified in the

absence of the authorisation. Further, our observations in deciding

and answering the legal issue before us should not be treated as

findings on the factual allegations made in the complaint. The trial

court would independently apply its mind to the factual allegations

and  decide  the  charge  in  accordance  with  law.  In  light  of  the

aforesaid observations, the appeal is partly allowed, as we have

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upheld  the  prosecution  and  cognizance  of  the  offence  under

Section 379 of the IPC and Sections 3 and 4 of the Prevention of

Damage to Public Property Act. There would be no order as to

costs.

......................................J. (S. ABDUL NAZEER)

......................................J. (SANJIV KHANNA)

NEW DELHI; DECEMBER 18, 2019.

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