JAYANT ETC. versus THE STATE OF MADHYA PRADESH on 3 December 2020

JAYANT ETC.

v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 824-825 of 2020)

DECEMBER 03, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Mines & Minerals (Development & Regulation) Act, 1957 –ss.4, 21, 22, 23A – Bar u/ss.22, 23A – When attracted – Illegalmining, storage and transportation of minerals – Magistrate suomotu directed registration of FIR – Applications filed by privateappellants for quashing of FIRs for offences u/ss.379, 414, IPC;ss.4/21, MMDR Act and u/r.18, 2006 Rules – Dismissed by HighCourt – On appeal, held: Magistrate can in exercise of powersu/s.156(3) direct the concerned In-charge/SHO of the police stationto register crime case/FIR even for offences under the MMDR Actand the Rules made thereunder – Bar u/s. 22 is not attracted at thisstage – It is attracted only when the Magistrate takes cognizanceof the offences under the MMDR Act/Rules and orders issuance ofprocess/summons – In the present case, it cannot be said that at thisstage the Magistrate had taken any cognizance of the allegedoffences attracting bar u/s.22 – Further, the offences under theMMDR Act as against the private appellants were permitted to becompounded by the competent authority thus, the bar contained insub-sec.2 of s.23A is attracted – Hence, there shall not be anyproceedings/further proceedings in respect of the offencespunishable under the MMDR Act/Rule so compounded – However,the aforesaid bar shall not be applicable for offences under IPC,such as ss.379, 414, as offences under the MMDR Act/Rule andunder the IPC are different and distinct – Proceedings quashed foroffences u/ss.4/21, MMDR Act only – Penal Code, 1860 – ss.379,414 – Code of Criminal Procedure, 1973 – s.156(3) – M.P. Minerals(Prevention of illegal Mining, Transportation and Storage) Rules,2006 – r.18 – Madhya Pradesh Minor Mineral Rules, 1996 – r.53.

Disposing of the appeals, the Court

HELD: 1.1 Reading Section 22 of the Mines & Minerals(Development & Regulation) Act, 1957 (MMDR Act) would show

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Athat cognizance of any offence punishable under the MMDR Actor the Rules made thereunder shall be taken only upon a writtencomplaint made by a person authorised in this behalf by theCentral Government or the State Government. Therefore, on afair reading of Section 22 of the MMDR Act, the bar would beattracted when the Magistrate takes cognizance. [Para 8.1][685-BA, C]

1.2 The High Court has not committed any error in notquashing the order passed by the Magistrate and not quashingthe criminal proceedings for the offences under Sections 379 and414. The Magistrate in exercise of the suo motu powers conferredCunder Section 156(3), Cr.P.C. directed the concerned In-charge/SHO of the police station to lodge/register the crime case/FIRand directed initiation of investigation and directed the concernedIn-charge/SHO of the police station to submit a report after dueinvestigation. It cannot be said that at this stage the Magistrate Dhad taken any cognizance of the alleged offences attracting barunder Section 22 of the MMDR Act. On considering the relevantprovisions of the MMDR Act and the Rules made thereunder, itcannot be said that there is a bar against registration of a criminalcase or investigation by the police agency or submission of areport by the police on completion of investigation, asEcontemplated by Section 173, Cr.P.C. As per Section 21 of theMMDR Act, the offences under the MMDR Act are cognizable.As specifically observed by this Court in the case of Anil Kumar,‘when a Special Judge refers a complaint for investigation underSection 156(3) Cr.P.C., obviously, he has not taken cognizance ofFthe offence and, therefore, it is a pre-cognizance stage and cannotbe equated with post-cognizance stage’. Even as observed bythis Court in the case of R.R. Chari, even the order passed by theMagistrate ordering investigation under Section 156(3), or issuinga search warrant for the purpose of the investigation, he cannot

be said to have taken cognizance of the offence. As observed byGthe Constitution Bench of this Court in the case of A.R. Antulay,filing of a complaint in court is not taking cognizance and whatexactly constitutes taking cognizance is different from filing of acomplaint. Therefore, when an order is passed by the Magistratefor investigation to be made by the police under Section 156(3)Hof the Code, which the Magistrate did in the instant case, when such an order is made the police is obliged to investigate thecase and submit a report under Section 173(2) of the Code. Thatthereafter the investigating officer is required to send report tothe authorised officer and thereafter as envisaged under Section22 of the MMDR Act the authorised officer as mentioned inSection 22 of the MMDR Act may file the complaint before theMagistrate along with the report submitted by the investigatingofficer and at that stage the question with respect to takingcognizance by the Magistrate would arise. [Paras 10, 10.1-10.3][700-C-H; 701-A-D]

A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC500 : [1984] 2 SCR 914 – followed.

Anil Kumar v. M. K. Aiyappa (2013) 10 SCC 705: [2013] 9 SCR 869; R. R. Chari v. State of U.P. AIR1951 SC 207 : [1951] SCR 312 – relied on.

2. It is true that in the present case the appropriate authoritydetermined the penalty under Rule 53 of the 1996 Rules/Rule 18of the 2006 Rules, which the private appellants-violators paidand therefore the bar contained in sub-section 2 of Section 23Aof the MMDR Act will be attracted. Section 23A as it stands todayhas been brought on the Statute in the year 1972 on therecommendations of the Mineral Advisory Board which providesthat any offence punishable under the MMDR Act or any rulemade thereunder may, either before or after the institution of theprosecution, be compounded by the person authorised undersection 22 to make a complaint to the court with respect to thatoffence, on payment to that person, for credit to the Government,of such sum as that person may specify. Sub-section 2 of Section23A further provides that where an offence is compounded undersub-section (1), no proceeding or further proceeding, as the casemay be, shall be taken against the offender in respect of theoffence so compounded, and the offender, if in custody, shall bereleased forthwith. Thus, the bar under sub-section 2 of Section23A shall be applicable with respect to offences under the MMDRAct or any rule made thereunder. However, the bar contained insub-section 2 of Section 23A shall not be applicable for the offencesunder the IPC, such as, Section 379 and 414 IPC. In the presentcase, the offences under the MMDR Act or any rule made AB

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Athereunder and the offences under the IPC are different anddistinct offences. Therefore, as in the present case, the mininginspectors prepared the cases under Rule 53 of the 1996 Rulesand submitted them before the mining officers with the proposalsof compounding the same for the amount calculated according tothe concerned rules and the Collector approved the said proposalBand thereafter the private appellants-violators accepted thedecision and deposited the amount of penalty determined by theCollector for compounding the cases in view of sub-section 2 ofSection 23A of the MMDR Act and the 1996 rules and even the2006 rules are framed in exercise of the powers under SectionC15 of the MMDR Act, criminal complaints/proceedings for theoffences under Sections 4/21 of the MMDR Act are notpermissible and are not required to be proceeded further in viewof the bar contained in sub-section 2 of Section 23A of the MMDRAct. At the same time, the criminal complaints/proceedings forthe offences under the IPC – Sections 379/414 IPC which areDheld to be distinct and different can be proceeded further, subjectto the observations made hereinabove. However, the aboveconclusions are considering the provisions of Section 23A of theMMDR Act, as it stands today. It might be true that by permittingthe violators to compound the offences under the MMDR Act orEthe rules made thereunder, the State may get the revenue andthe same shall be on the principle of person who causes thedamage shall have to compensate the damage and shall have topay the penalty like the principle of polluters to pay in case ofdamage to the environment. The violators cannot be permittedto go scot free on payment of penalty only. There must be someFstringent provisions which may have deterrent effect so that theviolators may think twice before committing such offences andbefore causing damage to the earth and the nature. It is the dutycast upon the State to restore the ecological imbalance and tostop damages being caused to the nature. As observed by thisGCourt in the case of Sanjay, excessive in-stream sand-and-gravelmining from river beds and like resources causes the degradationof rivers. It is further observed that apart from threateningbridges, sand mining transforms the riverbeds into large and deeppits, as a result, the groundwater table drops leaving the drinkingwater wells on the embankments of these rivers dry. EvenH

otherwise, sand/mines is a public property and the State is thecustodian of the said public property and therefore the Stateshould be more sensitive to protect the environment andecological balance and to protect the public property the Stateshould always be in favour of taking very stern action against theviolators who are creating serious ecological imbalance andcausing damages to the nature in any form. As the provisions ofSection 23A are not under challenge and Section 23A of theMMDR Act so long as it stands, the matter is left there and it isleft to the wisdom of the legislatures and the concerned States.[Para 11][701-D-H; 702-A-H; 703-A-E]

3. By the order passed by the Magistrate, confirmed bythe High Court, by no stretch of imagination, it can be said thatdirecting to file the first information report/crime case for theoffences under the IPC and even for the offences under theMMDR Act and the rules made thereunder, it affects any of thepowers of the authorised person to compound the offence. Infact, in view of the decision of this Court in the case of Sanjay, inwhich this Court has specifically observed and held that so far asthe offence under the IPC is concerned, there shall not be anybar under Section 22 of the MMDR Act and when before theHigh Court the State supported the order passed by theMagistrate and rightly so and when the impugned judgment andorder passed by the High Court is in favour of the State, as such,the State ought not to have filed the special leave petition/appeal.[Para 12][703-F-H; 704-A-B]

4. Conclusions:

4. Conclusions:

i) that the Magistrate can in exercise of powers underSection 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR evenfor the offences under the MMDR Act and the Rules madethereunder and at this stage the bar under Section 22 of theMMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall beattracted only when the Magistrate takes cognizance of theoffences under the MMDR Act and Rules made thereunder andorders issuance of process/summons for the offences under theMMDR Act and Rules made thereunder; AB

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Aiii) for commission of the offence under the IPC, on receiptof the police report, the Magistrate having jurisdiction can takecognizance of the said offence without awaiting the receipt ofcomplaint that may be filed by the authorised officer for takingcognizance in respect of violation of various provisions of theMMDR Act and Rules made thereunder; andB

iv) that in respect of violation of various provisions of theMMDR Act and the Rules made thereunder, when a Magistratepasses an order under Section 156(3) of the Code and directsthe concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of variousCprovisions of the Act and Rules made thereunder and thereafterafter investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent tothe concerned Magistrate as well as to the concerned authorisedofficer as mentioned in Section 22 of the MMDR Act andDthereafter the concerned authorised officer may file the complaintbefore the Magistrate along with the report submitted by theconcerned investigating officer and thereafter it will be open forthe Magistrate to take cognizance after following due procedure,issue process/summons in respect of the violations of the variousprovisions of the MMDR Act and Rules made thereunder and atEthat stage it can be said that cognizance has been taken by theMagistrate.

v) in a case where the violator is permitted to compoundthe offences on payment of penalty as per sub-section 1 of Section23A, considering sub-section 2 of Section 23A of the MMDRFAct, there shall not be any proceedings or further proceedingsagainst the offender in respect of the offences punishable underthe MMDR Act or any rule made thereunder so compounded.However, the bar under sub-section 2 of Section 23A shall notaffect any proceedings for the offences under the IPC, such as,GSections 379 and 414 IPC and the same shall be proceeded withfurther.

The appeals filed by the violators/private appellants arepartly allowed, to the extent quashing the proceedings for theoffences under the MMDR Act – Sections 4/21 of the MMDRHAct only. The appeal preferred by the State of Madhya Pradeshstands dismissed. [Paras 13, 14][704-C-H; 705-A-D]

JAYANT ETC. v. THE STATE OF MADHYA PRADESH

Krishna Pillai v. T. A. Rajendran (1990) Suppl. SCC121; Manohar M. Galani v. Ashok N. Advani (1999) 8SCC 737 : [1999] 4 Suppl. SCR 458; S. K. Sinha, ChiefEnforcement Officer v. Videocon International Limited(2008) 2 SCC 492 : [2008] 2 SCR 36; FakhruddinAhmad v. State of Uttaranchal (2008) 17 SCC 157 :[2008] 13 SCR 66; Subramanian Swamy v. ManmohanSingh (2012) 3 SCC 64 : [2012] 3 SCR 52 –relied on.

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State (NCT of Delhi) v. Sanjay (2014) 9 SCC772; [2014] 9 SCR 1063; Kanwar Pal Singh v. Stateof U.P. (2020) 14 SCC 331 – referred to.

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Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 824-825 of 2020.

From the Judgment and Order dated 11.05.2020 of the High Courtof Madhya Pradesh, Bench at Indore in M. Cr. C. No. 49338 of 2019and M. Cr. C. No. 49972 of 2019.

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Criminal Appeal No.826 of 2020.

Mr. Saurabh Mishra, AAG, Devadatt Kamat, Sr. Adv., Pai Amit,Shoeb Hasan Khan, Aditya Bhat, Rajesh Inamdar, Amit Seth,Ms. Pankhuri Bhardwaj, Sunny Choudhary, Advs. for the appearingHparties.

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned commonBjudgment and order dated 11.05.2020 passed by the High Court of MadhyaPradesh, Bench at Indore in M.Cr.C No. 49338/2019 and M.Cr.C. No.49972/2019, the original petitioner as well as the State of Madhya Pradeshhave preferred the present appeals.

By the impugned common judgment and order, the High CourtChas dismissed the aforesaid applications filed under Section 482 Cr.P.C.to quash the respective FIRs for the offences under Sections 379 and414, IPC, Sections 4/21 of the Mines & Minerals (Development &Regulation) Act, 1957 (hereinafter referred to as the ‘MMDR Act’) andunder Rule 18 of the M.P. Minerals (Prevention of illegal Mining,Transportation and Storage) Rules, 2006 (hereinafter referred to as theD‘2006 Rules’).

3. The facts in nutshell are as under:

On a surprise inspection, the respective Mining Inspectors checkedthe tractor/trolleys of the private appellants along with the minor mineral(sand/storage/yellow soil etc.) loaded in them. They handed over theEtractor/trolleys to the concerned police stations to keep them in safecustody. Finding the private appellants indulged in illegal mining/transportation of minor mineral, the mining Inspectors prepared theirrespective cases under Rule 53 of the Madhya Pradesh Minor MineralRules, 1996 (hereinafter referred to as the ‘1996 Rules’) and submittedFthem before the Mining Officers with a proposal of compounding thesame for the amount calculated according to the concerned 1996 Rules.The concerned Mining Officers submitted those cases before theCollector, who approved the proposal. The violators accepted the decisionand deposited the amounts determined by the Collector for compoundingthe cases. Their tractor/trolleys along with the minerals, which wereGillegally excavated/transported, were released.

3.1 That after some time, a news was published in a dailynewspaper – Bhaskar on 8.9.2019 with respect to illegal excavation/transportation of mineral sand from Chambal, Shivna and Retam andother Tributary rivers flow from District Mandsuar and in surroundingH

places. It was revealed that due to illegal transportation of the mineralsand without payment of royalty, revenue loss is occurring. It was reportedthat illegal mining, storage and transportation of mineral sand was beingcarried out at large scale. Similar kind of information was alsosubsequently published on 3.10.2019 in the daily newspaper – Bhaskarin Mandsuar edition. It was also reported that despite the offences underSections 379 and 414, IPC and the offences under the MMDR Act andthe 2006 Rules were found attracted, necessary legal action has notbeen taken and the violators were permitted to go on compounding theoffence under Rule 53 of the 1996 Rules. The learned Judicial Magistrate,First Class, Mandsuar took note of the aforesaid information and havingtaken note of the decision of this Court in the case of State (NCT ofDelhi) v. Sanjay, (2014) 9 SCC 772 taking the view that offencesunder the IPC and offences under the MMDR Act are distinct anddifferent and it is permissible to lodge/initiate the proceedings for theoffences under the IPC as well as under the MMDR Act, the learnedMagistrate in exercise of powers conferred under Section 156(3), Cr.P.C.(suo motu) directed to register criminal case under Section 156(3) Cr.P.C.for initiation of investigation and for submitting of report after dueinvestigation is conducted. The learned Magistrate also directed theconcerned In-charge/SHOs of the concerned police stations to registerthe first information report and a copy of the first information report besent to the learned Magistrate as per the provisions of Section 157, Cr.P.C.

3.2 That pursuant to the order passed by the learned Magistrate,the In-charge/SHOs of the concerned police stations lodged separateFIRs for the aforesaid offences for illegal mining/transportation of sand,particulars of which are as under:

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A3.3 That thereafter the private appellants and others approachedthe High Court to quash the aforesaid FIRs registered against them forillegal mining/transportation of sand by submitting the applications underSection 482, Cr.P.C. It was mainly contended on behalf of the privateappellants and other violators that in view of Bar under Section 22 of theMMDR Act, the order passed by the learned Magistrate directing toBregister the FIRs is unsustainable and deserves to the quashed and setaside. It was also contended on behalf of the private appellants andother violators that once there was compounding of offence in exerciseof powers under Rule 53 of the 1996 Rules and the violators paid theamount determined by permitting them to compound the offence,Cthereafter the Magistrate was not justified in directing to initiate freshproceedings which would be hit by the principle of “double jeopardy”.That by the impugned common judgment and order, the High Court hasdismissed all the aforesaid applications relying upon the decision of thisCourt in the case of Sanjay (supra).

D4. Feeling aggrieved and dissatisfied with the common impugnedjudgment and order passed by the High Court in refusing to quash theFIRs filed against the private appellants and other violators, the originalpetitioners – violators have preferred the present appeals. Though, beforethe High Court, the learned Public Prosecutor appearing on behalf ofthe State of Madhya Pradesh supported the order passed by the learnedEMagistrate directing to register/lodge FIRs, the State has preferred aseparate special leave petition challenging the impugned judgment andorder passed by the High Court confirming the order passed by thelearned Magistrate. It is very surprising that despite supporting the orderpassed by the learned Magistrate before the High Court, the State ofFMadhya Pradesh has preferred the special leave petition, which shall bedealt with hereinbelow.5. Shri Devadatt Kamat, learned Senior Advocate appearing onbehalf of the private appellants has made following submissions:

i) initiation of criminal proceedings and filing of respective FIRsGagainst the private appellants which have been filed/lodged pursuant tothe order passed by the learned Magistrate in exercise of powers underSection 156(3), Cr.P.C. are hit by Section 22 and 23A of the MMDRAct, as well as, Rule 53 of the 1996 Rules;

ii) on a plain reading of Section 22, cognizance of the offence canHbe taken by the Magistrate only if there is a written complaint in that regard by the Mining Officer/authorised officer. In the present case,admittedly, there is no written complaint made by the Mining Officer/authorised officer;

iii) MMDR Act does not contemplate the taking of suo motucognizance by the Magistrate. The Magistrate does not have jurisdictionunder the MMDR Act to direct the Mining Officer/police officer in-charge to register FIR under the penal provisions of the MMDR Act.Heavy reliance is placed on the decision of this Court in the case ofSanjay (Supra), as well as, in the case of Kanwar Pal Singh v. Stateof U.P., Criminal Appeal No. 1920 of 2019, decided on December18, 2019;

iv) Section 23A of the MMDR Act contemplates the compoundingof offence under the MMDR Act. Therefore, the Rules made under theMMDR Act contain provisions for compounding of offence. Sub-section2 of Section 23A places a bar on proceedings or further proceedings,when the offences have been compounded under sub-section (1).Therefore, once the proceedings have been compounded under the Actor Rules made thereunder, no further proceedings can lie. In the presentcase, the offences under the MMDR Act as against the private appellantswere permitted to be compounded by the competent authority.

5.1 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to allow the present appals and quashthe criminal proceedings initiated against the private appellants for theoffences under Sections 379 and 414, IPC and Sections 4/21 of theMMDR Act.

6. Learned counsel appearing on behalf of the State of MadhyaPradesh has supported the private appellants – violators and has submittedthat the order passed by the learned Magistrate directing to lodge/registerFIRs for the offences under Sections 379 and 414, IPC and Sections4/21 of the MMDR Act is unsustainable, though and as observedhereinabove, the learned Public Prosecutor appearing on behalf of theState of Madhya Pradesh supported the order passed by the learnedMagistrate before the High Court.

One of the grounds stated in the memo of appeal is that the orderpassed by the learned Magistrate, confirmed by the High Court, impinges/affects the powers of the authorised person to compound the offenceunder Rule 18 of the 2006 Rules.

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7. Before submissions made on behalf of the respective partiesare considered, the decision of this Court in the case of Sanjay (supra)dealing with the provisions of the MMDR Act in which this Courtconsidered in detail the policy and object of the MMDR Act and theRules made thereunder, is required to be referred to.

B7.1 The question which arose for consideration before this Courtwas, whether the provisions contained in Sections 21, 22 and otherSections of the MMDR Act operate as bar against prosecution of aperson who has been charged with allegation which constitutes offencesunder Sections 379/414 and other provisions of the Penal Code (IPC).The question which arose was, whether the provisions of the MMDRCAct explicitly or impliedly exclude the provisions of the Penal Code (IPC)when the act of an accused is an offence both under the Penal Codeand under the provisions of the MMDR Act. This Court considered indetail the policy, object and purpose of the MMDR Act in paragraphs 32to 39, which read as under:

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“32. The policy and object of the Mines and Minerals Act andRules have a long history and are the result of an increasingawareness of the compelling need to restore the serious ecologicalimbalance and to stop the damages being caused to the nature.The Court cannot lose sight of the fact that adverse and destructiveEenvironmental impact of sand mining has been discussed in theUNEP Global Environmental Alert Service Report. As per thecontents of the Report, lack of proper scientific methodology forriver sand mining has led to indiscriminate sand mining, while weakgovernance and corruption have led to widespread illegal mining.While referring to the proposition in India, it was stated that sandFtrading is a lucrative business, and there is evidence of illegaltrading such as the case of the influential mafias in our country.

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33. The mining of aggregates in rivers has led to severe damageto rivers, including pollution and changes in levels of PH. Removingsediment from rivers causes the river to cut its channel throughthe bed of the valley floor, or channel incision, both upstream anddownstream of the extraction site. This leads to coarsening ofbed material and lateral channel instability. It can change theriverbed itself. The removal of more than 12 million tonnes ofsand a year from Vembanad Lake catchment in India has led tothe lowering of the riverbed by 7 to 15 cm a year. Incision can G

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also cause the alluvial aquifer to drain to a lower level, resulting ina loss of aquifer storage. It can also increase flood frequency andintensity by reducing flood regulation capacity. However, loweringthe water table is most threatening to water supply exacerbatingdrought occurrence and severity as tributaries of major rivers dryup when sand mining reaches certain thresholds. Illegal sandmining also causes erosion. Damming and mining have reducedsediment delivery from rivers to many coastal areas, leading toaccelerated beach erosion.

34. The Report also dealt with the astonishing impact of sandmining on the economy. It states that tourism may be affectedthrough beach erosion. Fishing, both traditional and commercial,can be affected through destruction of benthic fauna. Agriculturecould be affected through loss of agricultural land from river erosionand the lowering of the water table. The insurance sector isaffected through exacerbation of the impact of extreme eventssuch as floods, droughts and storm surges through decreasedprotection of beach fronts. The erosion of coastal areas andbeaches affects houses and infrastructure. A decrease in bed loador channel shortening can cause downstream erosion includingbank erosion and the undercutting or undermining of engineeringstructures such as bridges, side protection walls and structuresfor water supply.

35. Sand is often removed from beaches to build hotels, roadsand other tourism-related infrastructure. In some locations,continued construction is likely to lead to an unsustainable situationand destruction of the main natural attraction for visitors—beachesthemselves. Mining from, within or near a riverbed has a directimpact on the stream’s physical characteristics, such as channelgeometry, bed elevation, substratum composition and stability,instream roughness of the bed, flow velocity, discharge capacity,sediment transportation capacity, turbidity, temperature, etc.Alteration or modification of the above attributes may causehazardous impact on ecological equilibrium of riverine regime.This may also cause adverse impact on instream biota and riparianhabitats. This disturbance may also cause changes in channelconfiguration and flow paths.

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36. In M. Palanisamy v. State of T.N (2012) 4 CTC 1, theamended provisions of the Tamil Nadu Mines and MineralsConcession Rules, 1959 was challenged on the ground that thesaid Rules for the purpose of preventing and restricting illegalmining, transportation and storage of minerals are ultra viresconstitutional provisions and the provisions of the Mines andMinerals (Development and Regulation) Act, 1957. Upholding thevires of the Rules, the Division Bench (one of us, Eqbal, J. as hethen was) of the Madras High Court, elaborately discussed theobject of restriction put in the illegal mining, transportation andstorage of minerals including sand and after considering variousreports observed thus: (CTC pp. 24-25, paras 21 & 23-24)

“21. In order to appreciate the issue involved in these writ petitions,we may have to look at the larger picture — the impact ofindiscriminate, uninterrupted sand quarrying on the already brittleecological set-up of ours. According to expert reports, forthousands of years, sand and gravel have been used in theconstruction of roads and buildings. Today, demand for sand andgravel continues to increase. Mining operators, instead of workingin conjunction with cognizant resource agencies to ensure thatsand mining is conducted in a responsible manner, are engaged infull-time profiteering. Excessive in-stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers.In-stream mining lowers the stream bottom, which leads to bankerosion. Depletion of sand in the stream-bed and along coastalareas causes the deepening of rivers and estuaries andenlargement of river mouths and coastal inlets. It also leads tosaline water intrusion from the nearby sea. The effect of miningis compounded by the effect of sea level rise. Any volume ofsand exported from stream-beds and coastal areas is a loss to thesystem. Excessive in-stream sand mining is a threat to bridges,river banks and nearby structures. Sand mining also affects theadjoining groundwater system and the uses that local people makeof the river. Further, according to researches, in-stream sandmining results in the destruction of aquatic and riparian habitatthrough wholesale changes in the channel morphology. The illeffects include bed degradation, bed coarsening, lowered watertables near the stream-bed and channel instability. These physicalimpacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continuedextraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of excavation.

23. The most important effects of in-stream sand mining on aquatichabitats are bed degradation and sedimentation, which can havesubstantial negative effects on aquatic life. The stability of sand-bed and gravel-bed streams depends on a delicate balance betweenstream flow, the sediments supplied from the watershed and thechannel form. Mining-induced changes in sediment supply andchannel form disrupt the channel and the habitat developmentprocesses. Furthermore, movement of unstable substrates resultsin downstream sedimentation of habitats. The affected distancedepends on the intensity of mining, particle sizes, stream flows,and channel morphology.

24. Apart from threatening bridges, sand mining transforms theriverbeds into large and deep pits; as a result, the groundwatertable drops leaving the drinking water wells on the embankmentsof these rivers dry. Bed degradation from in-stream mining lowersthe elevation of stream flow and the floodplain water table, whichin turn, can eliminate water table-dependent woody vegetation inriparian areas and decrease wetted periods in riparian wetlands.So far as locations close to the sea are concerned, saline watermay intrude into the fresh waterbody.”

37. In Centre for Public Interest Litigation v. Union of India(2012) 3 SCC 1, this Court, while observing that the naturalresources are the public property and national assets, held as under:(SCC p. 53, para 75)

“75. The State is empowered to distribute natural resources.However, as they constitute public property/national asset, whiledistributing natural resources the State is bound to act inconsonance with the principles of equality and public trust andensure that no action is taken which may be detrimental topublic interest. Like any other State action, constitutionalismmust be reflected at every stage of the distribution of naturalresources. In Article 39(b) of the Constitution it has beenprovided that the ownership and control of the material A

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resources of the community should be so distributed so as tobest subserve the common good, but no comprehensivelegislation has been enacted to generally define naturalresources and a framework for their protection. Of course,environment laws enacted by Parliament and State Legislaturesdeal with specific natural resources i.e. forest, air, water, coastalzones, etc.”

38. In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388, this Courtwhile considering the doctrine of public trust which extends tonatural resources observed as under: (SCC pp. 407-08 & 413,paras 24-25 & 34)

“24. The ancient Roman Empire developed a legal theoryknown as the ‘Doctrine of the Public Trust’. It was foundedon the ideas that certain common properties such as rivers,seashore, forests and the air were held by Government intrusteeship for the free and unimpeded use of the general public.Our contemporary concern about ‘the environment’ bear a veryclose conceptual relationship to this legal doctrine. Under theRoman law these resources were either owned by no one (resnullius) or by everyone in common (res communious). Underthe English common law, however, the Sovereign could ownthese resources but the ownership was limited in nature, theCrown could not grant these properties to private owners ifthe effect was to interfere with the public interests in navigationor fishing. Resources that were suitable for these uses weredeemed to be held in trust by the Crown for the benefit of thepublic. Joseph L. Sax, Professor of Law, University ofMichigan—proponent of the Modern Public Trust Doctrine—in an erudite article ‘Public Trust Doctrine in NaturalResource Law: Effective Judicial Intervention’, MichiganLaw Review, Vol. 68, Part 1, p. 473, has given the historicalbackground of the Public Trust Doctrine as under:

‘The source of modern public trust law is found in a conceptthat received much attention in Roman and English law—thenature of property rights in rivers, the sea, and the seashore.That history has been given considerable attention in the legalliterature and need not be repeated in detail here. But twopoints should be emphasised. First, certain interests, such as navigation and fishing, were sought to be preserved for thebenefit of the public; accordingly, property used for thosepurposes was distinguished from general public property whichthe 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—‘‘perpetualuse was dedicated to the public”, it has never been clearwhether the public had an enforceable right to preventinfringement of those interests. Although the State apparentlydid protect public uses, no evidence is available that publicrights could be legally asserted against a recalcitrantgovernment.’

25. The Public Trust Doctrine primarily rests on the principlethat certain resources like air, sea, waters and the forestshave such a great importance to the people as a whole thatit would be wholly unjustified to make them a subject ofprivate ownership. The said resources being a gift of nature,they should be made freely available to everyone irrespectiveof the status in life. The doctrine enjoins upon theGovernment to protect the resources for the enjoyment ofthe general public rather than to permit their use for privateownership or commercial purposes. According to ProfessorSax the Public Trust Doctrine imposes the followingrestrictions on governmental authority:

‘Three types of restrictions on governmental authorityare often thought to be imposed by the public trust: first, theproperty subject to the trust must not only be used for apublic purpose, but it must be held available for use by thegeneral public; second, the property may not be sold, evenfor a fair cash equivalent; and third the property must bemaintained for particular types of uses.’

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34. Our legal system—based on English common law—includes the Public Trust Doctrine as part of itsjurisprudence. The State is the trustee of all naturalresources which are by nature meant for public use andenjoyment. Public at large is the beneficiary of the AB

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seashore, running waters, air, forests and ecologicallyfragile lands. The State as a trustee is under a legal dutyto protect the natural resources. These resources meantfor public use cannot be converted into privateownership.”

39. In Intellectuals Forum v. State of A.P (2006) 3 SCC 549,this Court while balancing the conservation of natural resourcesvis-à-vis urban development observed as under: (SCC p. 572, para67)

“67. The responsibility of the State to protect the environmentis now a well-accepted notion in all countries. It is this notionthat, in international law, gave rise to the principle of ‘Stateresponsibility’ for pollution emanating within one’s ownterritories (Corfu Channel case[14]). This responsibility is clearlyenunciated in the United Nations Conference on the HumanEnvironment, Stockholm 1972 (Stockholm Convention), towhich India was a party. The relevant clause of this declarationin the present context is para 2, which states:

‘The natural resources of the earth, including the air,water, land, flora and fauna and especially representativesamples of natural ecosystems, must be safeguarded for thebenefit of present and future generations through carefulplanning or management, as appropriate.’

Thus, there is no doubt about the fact that there is a responsibilitybestowed upon the Government to protect and preserve thetanks, which are an important part of the environment of thearea.”

7.2 This Court further observed in paragraphs 60 & 69 as under:

“60. There cannot be any two opinions that natural resources arethe assets of the nation and its citizens. It is the obligation of allconcerned, including the Central and the State Governments, toconserve and not waste such valuable resources. Article 48-A ofthe Constitution requires that the State shall endeavour to protectand improve the environment and safeguard the forests and wildlifeof the country. Similarly, Article 51-A enjoins a duty upon everycitizen to protect and improve the natural environment includingforests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, thedoctrine of public trust has become the law of the land. The saiddoctrine rests on the principle that certain resources like air, sea,water and forests are of such great importance to the people as awhole that it would be highly unjustifiable to make them a subjectof private ownership.

69. Considering the principles of interpretation and the wordingsused in Section 22, in our considered opinion, the provision is not acomplete and absolute bar for taking action by the police for illegaland dishonestly committing theft of minerals including sand fromthe riverbed. The Court shall take judicial notice of the fact thatover the years rivers in India have been affected by the alarmingrate of unrestricted sand mining which is damaging the ecosystemof the rivers and safety of bridges. It also weakens riverbeds, fishbreeding and destroys the natural habitat of many organisms. Ifthese illegal activities are not stopped by the State and the policeauthorities of the State, it will cause serious repercussions asmentioned hereinabove. It will not only change the river hydrologybut also will deplete the groundwater levels.”

7.3 That thereafter, after considering the relevant provisions ofthe MMDR Act, this Court opined that there is no complete and absolutebar in prosecuting persons under the Penal Code where the offencescommitted by persons are penal and cognizable offence. Ultimately, thisCourt concluded in paragraphs 72 and 73 as under:

“72. From a close reading of the provisions of the MMDR Actand the offence defined under Section 378 IPC, it is manifest thatthe ingredients constituting the offence are different. Thecontravention of terms and conditions of mining lease or doingmining activity in violation of Section 4 of the Act is an offencepunishable under Section 21 of the MMDR Act, whereasdishonestly removing sand, gravel and other minerals from theriver, which is the property of the State, out of the State’spossession without the consent, constitute an offence of theft.Hence, merely because initiation of proceeding for commissionof an offence under the MMDR Act on the basis of complaintcannot and shall not debar the police from taking action againstpersons for committing theft of sand and minerals in the mannermentioned above by exercising power under the Code of Criminal A

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Procedure and submit a report before the Magistrate for takingcognizance against such persons. In other words, in a case wherethere is a theft of sand and gravel from the government land, thepolice can register a case, investigate the same and submit a finalreport under Section 173 CrPC before a Magistrate havingjurisdiction for the purpose of taking cognizance as provided inSection 190(1)(d) of the Code of Criminal Procedure.

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73. After giving our thoughtful consideration in the matter, in thelight of the relevant provisions of the Act vis-à-vis the Code ofCriminal Procedure and the Penal Code, we are of the definiteopinion that the ingredients constituting the offence under theCMMDR Act and the ingredients of dishonestly removing sandand gravel from the riverbeds without consent, which is theproperty of the State, is a distinct offence under IPC. Hence, forthe commission of offence under Section 378 IPC, on receipt ofthe police report, the Magistrate having jurisdiction can takeDcognizance of the said offence without awaiting the receipt ofcomplaint that may be filed by the authorised officer for takingcognizance in respect of violation of various provisions of theMMDR Act. Consequently, the contrary view taken by thedifferent High Courts cannot be sustained in law and, therefore,overruled. Consequently, these criminal appeals are disposed ofEwith a direction to the Magistrates concerned to proceedaccordingly.”

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7.4 Thus, as held by this Court, the prohibition contained in Section22 of the MMDR Act against prosecution of a person except ona written complaint made by the authorised officer in this behalfwould be attracted only when such person is sought to be prosecutedfor contraventions of Section 4 of the MMDR Act and not forany act or omission which constitutes an offence under the PenalCode.

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8. However, it is required to be noted that in the case of SanjayG(supra), this Court had no occasion and/or had not consideredwhen and at what stage the bar under Section 22 of the MMDRAct would be attracted. The further question which is required tobe considered is, when and at what stage the Magistrate can besaid to have taken cognizance attracting the bar under Section 22of the MMDR Act?H

8.1 While considering the aforesaid issue, Section 22 of the MMDRAct is required to be referred to, which is as under:

“22. Cognizance of offences.—No court shall take cognizanceof any offence punishable under this Act or any Rules madethereunder except upon complaint in writing made by a personauthorised in this behalf by the Central Government or theState Government.”

Reading the aforesaid provision would show that cognizance ofany offence punishable under the MMDR Act or the Rules madethereunder shall be taken only upon a written complaint made by a personauthorised in this behalf by the Central Government or the StateGovernment. Therefore, on a fair reading of Section 22 of the MMDRAct, the bar would be attracted when the Magistrate takes cognizance.

9. Let us now consider the question in the light of judicialpronouncements on the point.

9.1. In the case of Krishna Pillai v. T.A. Rajendran, 1990(Supp) SCC 121, after considering a five Judge Bench judgment of thisCourt in the case of A.R. Antulay v. Ramdas Sriniwas Nayak, (1984)2 SCC 500, it is observed in paragraph 4 as under:

“4. Taking cognizance has assumed a special meaning in ourcriminal jurisprudence. We may refer to the view taken by a fiveJudge bench of this Court in A.R. Antulay v. Ramdas SriniwasNayak (supra) at p. 530 (para 31) of the reports this Courtindicated:

“When a private complaint is filed, the court has to examinethe complainant on oath save in the cases set out in the provisoto Section 200 CrPC After examining the complainant on oathand examining the witnesses present, if any, meaning therebythat the witnesses not present need not be examined, it wouldbe open to the court to judicially determine whether a case ismade out for issuing process. When it is said that court issuedprocess, it means the court has taken cognizance of the offenceand has decided to initiate the proceedings and a visiblemanifestation of taking cognizance process is issued whichmeans that the accused is called upon to appear before thecourt.”

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686SUPREME COURT REPORTS

AThe extract from the Constitution Bench judgment clearly indicatesthat filing of a complaint in court is not taking cognizance andwhat exactly constitutes taking cognizance is different from filingof a complaint…..”

9.2 In the case of Manohar M. Galani v. Ashok N. AdvaniB(1999) 8 SCC 737, when the bar under Section 195 Cr. P.C. was pressedinto service and the High Court quashed the complaint and enquiry onthe basis of the FIR registered by the complainant, while setting asidethe order passed by the High Court, this Court accepted the submissionon behalf of the State that the bar under Section 195 Cr.P.C. can begone into at the stage when the court takes cognizance of the offenceCand investigation on the basis of the information received could not havebeen quashed and an investigating agency cannot be throttled at thisstage from proceeding with the investigation particularly when thecharges are serious and grave.

9.3 In the case of S.K. Sinha, Chief Enforcement Officer v.DVideocon International Limited, (2008) 2 SCC 492, in paragraphs19 to 34, it is observed and held as under:

“19. The expression “cognizance” has not been defined in theCode. But the word (cognizance) is of indefinite import. It has noesoteric or mystic significance in criminal law. It merely meansE“become aware of” and when used with reference to a court or aJudge, it connotes “to take notice of judicially”. It indicates thepoint when a court or a Magistrate takes judicial notice of anoffence with a view to initiating proceedings in respect of suchoffence said to have been committed by someone.

F20. “Taking cognizance” does not involve any formal action ofany kind. It occurs as soon as a Magistrate applies his mind to thesuspected commission of an offence. Cognizance is taken priorto commencement of criminal proceedings. Taking of cognizanceis thus a sine qua non or condition precedent for holding a validGtrial. Cognizance is taken of an offence and not of an offender.Whether or not a Magistrate has taken cognizance of an offencedepends on the facts and circumstances of each case and no ruleof universal application can be laid down as to when a Magistratecan be said to have taken cognizance.

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21. Chapter XIV (Sections 190-199) of the Code deals with“Conditions requisite for initiation of proceedings”. Section 190empowers a Magistrate to take cognizance of an offence in certaincircumstances. Sub-section (1) thereof is material and may bequoted in extenso:

“190. Cognizance of offences by Magistrates —(1) Subjectto the provisions of this Chapter, any Magistrate of the FirstClass, and any Magistrate of the Second Class speciallyempowered in this behalf under sub-section (2), may takecognizance of any offence—

(a) upon receiving a complaint of facts which constitutesuch offence; (b) upon a police report of such facts;

(c) upon information received from any person other than apolice officer, or upon his own knowledge, that such offencehas been committed.”

22. Chapter XV (Sections 200-203) relates to “Complaints toMagistrates” and covers cases before actual commencement ofproceedings in a court or before a Magistrate. Section 200 of theCode requires a Magistrate taking cognizance of an offence toexamine the complainant and his witnesses on oath. Section 202,however, enacts that a Magistrate is not bound to issue processagainst the accused as a matter of course. It enables him beforethe issue of process either to inquire into the case himself or directan investigation to be made by a police officer or by such otherperson as he thinks fit for the purpose of deciding whether thereis sufficient ground for proceeding further. The underlying objectof the inquiry under Section 202 is to ascertain whether there isprima facie case against the accused. It thus allows a Magistrateto form an opinion whether the process should or should not beissued. The scope of inquiry under Section 202 is, no doubt,extremely limited. At that stage, what a Magistrate is called uponto see is whether there is sufficient ground for proceeding withthe matter and not whether there is sufficient ground forconviction of the accused.

23. Then comes Chapter XVI (Commencement of proceedingsbefore Magistrates). This Chapter will apply only after cognizance A

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of an offence has been taken by a Magistrate under ChapterXIV. Section 204, whereunder process can be issued, is anothermaterial provision which reads as under:

“204. Issue of process.—(1) If in the opinion of a Magistratetaking cognizance of an offence there is sufficient ground forproceeding, and the case appears to be—

(a) a summons case, he shall issue his summons for theattendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinksfit, a summons, for causing the accused to be brought or toappear at a certain time before such Magistrate or (if hehas no jurisdiction himself) some other Magistrate havingjurisdiction.

(2) No summons or warrant shall be issued against the accusedunder sub-section (1) until a list of the prosecution witnesseshas been filed.

(3) In a proceeding instituted upon a complaint made in writing,every summons or warrant issued under sub-section (1) shallbe accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued untilthe fees are paid and, if such fees are not paid within areasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect theprovisions of Section 87.”

24. From the above scheme of the Code, in our judgment, it isclear that “Initiation of proceedings”, dealt with in Chapter XIV,is different from “Commencement of proceedings” covered byChapter XVI. For commencement of proceedings, there must beinitiation of proceedings. In other words, initiation of proceedingsmust precede commencement of proceedings. Without initiationof proceedings under Chapter XIV, there cannot becommencement of proceedings before a Magistrate under ChapterXVI. The High Court, in our considered view, was not right inequating initiation of proceedings under Chapter XIV withcommencement of proceedings under Chapter XVI.

25. Let us now consider the question in the light of judicialpronouncements on the point.

26. In Supdt. & Remembrancer of Legal Affairs v. Abani KumarBanerjee, AIR 1950 Cal. 437, the High Court of Calcutta hadan occasion to consider the ambit and scope of the phrase “takingcognizance” under Section 190 of the Code of Criminal Procedure,1898 which was in pari materia with Section 190 of the presentCode of 1973. Referring to various decisions, Das Gupta, J. (asHis Lordship then was) stated: (AIR p. 438, para 7)

“7. … What is ‘taking cognizance’ has not been defined in theCriminal Procedure Code, and I have no desire now to attemptto define it. It seems to me clear, however, that before it canbe said that any Magistrate has taken cognizance of anyoffence under Section 190(1)(a) CrPC, he must not only haveapplied his mind to the contents of the petition, but he musthave done so for the purpose of proceeding in a particular wayas indicated in the subsequent provisions of this Chapter,proceeding under Section 200, and thereafter sending it forenquiry and report under Section 202. When the Magistrateapplies his mind not for the purpose of proceeding under thesubsequent sections of this Chapter, but for taking action ofsome other kind, e.g., ordering investigation under Section156(3), or issuing a search warrant for the purpose of theinvestigation, he cannot be said to have taken cognizance ofthe offence.”

27. R.R. Chari v. State of U.P. AIR 1951 SC 207 was probablythe first leading decision of this Court on the point. There, thepolice, having suspected the appellant-accused to be guilty ofoffences punishable under Sections 161 and 165 of the Penal Code(IPC) as also under the Prevention of Corruption Act, 1947, appliedto the District Magistrate, Kanpur to issue warrant of arrest on22-10-1947. Warrant was issued on the next day and the accusedwas arrested on 27-10-1947.

28. On 25-3-1949, the accused was produced before the Magistrateto answer the charge-sheet submitted by the prosecution.According to the accused, on 22-10-1947, when warrant for hisarrest was issued by the Magistrate, the Magistrate was said to AB

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have taken cognizance of offence and since no sanction of theGovernment had been obtained before that date, initiation ofproceedings against him was unlawful. The question before theCourt was as to when cognizance of the offence could be said tohave been taken by the Magistrate under Section 190 of the Code.Considering the circumstances under which “cognizance ofoffence” under sub-section (1) of Section 190 of the Code can betaken by a Magistrate and referring to Abani Kumar Banerjee(supra), the Court, speaking through Kania, C.J. stated: (Charicase (supra), AIR p. 208, para 3)

“3. It is clear from the wording of the section that the initiationof the proceedings against a person commences on thecognizance of the offence by the Magistrate under one of thethree contingencies mentioned in the section. The firstcontingency evidently is in respect of non-cognizable offencesas defined in CrPC on the complaint of an aggrieved person.The second is on a police report, which evidently is the case of

a cognizable offence when the police have completed theirinvestigation and come to the Magistrate for the issue of aprocess. The third is when the Magistrate himself takes noticeof an offence and issues the process. It is important toremember that in respect of any cognizable offence, the police,at the initial stage when they are investigating the matter, canarrest a person without obtaining an order from the Magistrate.Under Section 167(b) CrPC the police have of course to putup the person so arrested before a Magistrate within 24 hoursand obtain an order of remand to police custody for the purposeof further investigation, if they so desire. But they have thepower to arrest a person for the purpose of investigation withoutapproaching the Magistrate first. Therefore, in cases ofcognizable offence before proceedings are initiated and whilethe matter is under investigation by the police the suspectedperson is liable to be arrested by the police without an order bythe Magistrate.”

29. Approving the observations of Das Gupta, J. in Abani KumarBanerjee(supra), this Court held that it was on 25-3-1949 whenthe Magistrate issued a notice under Section 190 of the Codeagainst the accused that he took “cognizance” of the offence.

Since before that day, sanction had been granted by theGovernment, the proceedings could not be said to have beeninitiated without authority of law.

30. Again in Narayandas Bhagwandas Madhavdas v. State ofW.B.AIR 1959 SC 1118, this Court observed that whencognizance is taken of an offence depends upon the facts andcircumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuance of a search warrantfor the purpose of an investigation or a warrant of arrest of theaccused cannot by itself be regarded as an act of takingcognizance of an offence. It is only when a Magistrate applies hismind for proceeding under Section 200 and subsequent sectionsof Chapter XV or under Section 204 of Chapter XVI of the Codethat it can be positively stated that he had applied his mind andthereby had taken cognizance of an offence (see also Ajit KumarPalit v. State of W.B. AIR 1963 SC 765 and Hareram Satpathyv. Tikaram Agarwala, (1978) 4 SCC 58).

31. In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986,referring to earlier judgments, this Court said: (AIR p. 989, para7)

“7. … We cannot read the provisions of Section 190 to meanthat once a complaint is filed, a Magistrate is bound to takecognizance if the facts stated in the complaint disclose thecommission of any offence. We are unable to construe theword ‘may’ in Section 190 to mean ‘must’. The reason isobvious. A complaint disclosing cognizable offences may welljustify a Magistrate in sending the complaint, under Section156(3) to the police for investigation. There is no reason whythe time of the Magistrate should be wasted when primarilythe duty to investigate in cases involving cognizable offencesis with the police. On the other hand, there may be occasionswhen the Magistrate may exercise his discretion and takecognizance of a cognizable offence. If he does so then hewould have to proceed in the manner provided by ChapterXVI of the Code.”

32. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC753, the Court stated that it is well settled that before a Magistrate AB

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can be said to have taken cognizance of an offence under Section190(1)(a) of the Code, he must have not only applied his mind tothe contents of the complaint presented before him, but must havedone so for the purpose of proceeding under Section 200 and theprovisions following that section. Where, however, he applies hismind only for ordering an investigation under Section 156(3) orissues a warrant for arrest of the accused, he cannot be said tohave taken cognizance of the offence.

33. In Darshan Singh Ram Kishan v. State of Maharashtra(1971) 2 SCC 654, speaking for the Court, Shelat, J. stated thatunder Section 190 of the Code, a Magistrate may take cognizanceof an offence either (a) upon receiving a complaint, or (b) upon apolice report, or (c) upon information received from a person otherthan a police officer or even upon his own information or suspicionthat such an offence has been committed. As has often been said,taking cognizance does not involve any formal action or indeedaction of any kind. It occurs as soon as a Magistrate applies hismind to the suspected commission of an offence. Cognizance,thus, takes place at a point when a Magistrate first takes judicialnotice of an offence.

34. In Devarapalli Lakshminarayana Reddy v. V. NarayanaReddy (1976) 3 SCC 252, this Court said: (SCC p. 257, paras13-14)

“13. It is well settled that when a Magistrate receives acomplaint, he is not bound to take cognizance if the facts allegedin the complaint, disclose the commission of an offence. Thisis clear from the use of the words ‘may take cognizance’ whichin the context in which they occur cannot be equated with‘must take cognizance’. The word ‘may’ gives a discretion tothe Magistrate in the matter. If on a reading of the complainthe finds that the allegations therein disclose a cognizable offenceand the forwarding of the complaint to the police for investigationunder Section 156(3) will be conducive to justice and save thevaluable time of the Magistrate from being wasted in enquiringinto a matter which was primarily the duty of the police toinvestigate, he will be justified in adopting that course as analternative to taking cognizance of the offence, himself.

14. This raises the incidental question: What is meant by ‘takingcognizance of an offence’ by a Magistrate within thecontemplation of Section 190? This expression has not beendefined in the Code. But from the scheme of the Code, thecontent and marginal heading of Section 190 and the captionof Chapter XIV under which Sections 190 to 199 occur, it isclear that a case can be said to be instituted in a court onlywhen the court takes cognizance of the offence alleged therein.The ways in which such cognizance can be taken are set outin Clauses (a), (b) and (c) of Section 190(1). Whether theMagistrate has or has not taken cognizance of the offence willdepend on the circumstances of the particular case includingthe mode in which the case is sought to be instituted, and thenature of the preliminary action, if any, taken by the Magistrate.Broadly speaking, when on receiving a complaint, theMagistrate applies his mind for the purposes of proceedingunder Section 200 and the succeeding sections in Chapter XVof the Code of 1973, he is said to have taken cognizance of theoffence within the meaning of Section 190(1)(a). If, instead ofproceeding under Chapter XV, he has, in the judicial exerciseof his discretion, taken action of some other kind, such as issuinga search warrant for the purpose of investigation, or orderinginvestigation by the police under Section 156(3), he cannot besaid to have taken cognizance of any offence.”

(see also M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528).

9.4 In the case of Fakhruddin Ahmad v. State of Uttaranchal,(2008) 17 SCC 157, in paragraphs 9 to 17, it is observed and held asunder:

“9. Before examining the rival contentions, we may briefly referto some of the relevant provisions in the Code. Chapter XIV ofthe Code, containing Sections 190 to 199 deals with the statutoryconditions requisite for initiation of criminal proceedings and as tothe powers of cognizance of a Magistrate. Sub-section (1) ofSection 190 of the Code empowers a Magistrate to take cognizanceof an offence in the manner laid therein. It provides that aMagistrate may take cognizance of an offence either (a) uponreceiving a complaint of facts which constitute such offence; or(b) upon a police report of such facts; or (c) upon information AB

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received from any person other than a police officer, or upon hisown knowledge that such offence has been committed.

10. Chapter XV containing Sections 200 to 203 deals with“Complaints to Magistrates” and lays down the procedure whichis required to be followed by the Magistrate taking cognizance ofan offence on complaint. Similarly, Chapter XVI deals with“Commencement of Proceedings before Magistrates”. Sinceadmittedly, in the present case, the Magistrate has takencognizance of the complaint in terms of Section 190 of the Code,we shall confine our discussion only to the said provision. Wemay, however, note that on receipt of a complaint, the Magistratehas more than one course open to him to determine the procedureand the manner to be adopted for taking cognizance of the offence.

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11. One of the courses open to the Magistrate is that instead ofexercising his discretion and taking cognizance of a cognizableoffence and following the procedure laid down under Section 200Dor Section 202 of the Code, he may order an investigation to bemade by the police under Section 156(3) of the Code, which thelearned Magistrate did in the instant case. When such an order ismade, the police is obliged to investigate the case and submit areport under Section 173(2) of the Code. On receiving the policeEreport, if the Magistrate is satisfied that on the facts discoveredor unearthed by the police there is sufficient material for him totake cognizance of the offence, he may take cognizance of theoffence under Section 190(1)(b) of the Code and issue processstraightaway to the accused. However, Section 190(1)(b) of theCode does not lay down that a Magistrate can take cognizance ofFan offence only if the investigating officer gives an opinion thatthe investigation makes out a case against the accused.Undoubtedly, the Magistrate can ignore the conclusion(s) arrivedat by the investigating officer.

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12. Thus, it is trite that the Magistrate is not bound by the opinionof the investigating officer and he is competent to exercise hisdiscretion in this behalf, irrespective of the view expressed by thepolice in their report and decide whether an offence has beenmade out or not. This is because the purpose of the police reportunder Section 173(2) of the Code, which will contain the factsdiscovered or unearthed by the police as well as the conclusion G

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drawn by the police therefrom is primarily to enable the Magistrateto satisfy himself whether on the basis of the report and the materialreferred therein, a case for cognizance is made out or not.

13. The next incidental question is as to what is meant by theexpression “taking cognizance of an offence” by a Magistratewithin the contemplation of Section 190 of the Code?

14. The expression “cognizance” is not defined in the Code but isa word of indefinite import. As observed by this Court in AjitKumar Palit v. State of W.B., AIR 1963 SC 765 (AIR p. 770,para 19)

“19. … The word ‘cognizance’ has no esoteric or mysticsignificance in criminal law or procedure. It merely means—become aware of and when used with reference to a court orJudge, to take notice of judicially.”

Approving the observations of the Calcutta High Court in Emperorv. Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal. 412(at ILR p. 416), the Court said that “taking cognizance does not involve any formal action, or indeedaction of any kind, but occurs as soon as a Magistrate, assuch, applies his mind to the suspected commission of anoffence.”

(emphasis supplied)

15. Recently, this Court in Chief Enforcement Officer v. VideoconInternational Ltd.[4]speaking through C.K. Thakker, J., whileconsidering the ambit and scope of the phrase “taking cognizance”under Section 190 of the Code, has highlighted some of theobservations of the Calcutta High Court in Supdt. &Remembrancer of Legal Affairs v. Abani Kumar Banerjee,AIR 1950 Cal. 437 which were approved by this Court in R.R.Chari v. State of U.P., AIR 1951 SC 207. The observations are:(Abani Kumar Banerjee case(supra), AIR p. 438, para 7)

“7. … What is ‘taking cognizance’ has not been defined in theCriminal Procedure Code, and I have no desire now to attemptto define it. It seems to me clear, however, that before it canbe said that any Magistrate has taken cognizance of anyoffence under Section 190(1)(a) CrPC, he must not only have A

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applied his mind to the contents of the petition, but he musthave done so for the purpose of proceeding in a particular wayas indicated in the subsequent provisions of this Chapter,proceeding under Section 200, and thereafter sending it forenquiry and report under Section 202. When the Magistrateapplies his mind not for the purpose of proceeding under thesubsequent sections of this Chapter, but for taking action ofsome other kind e.g. ordering investigation under Section 156(3),or issuing a search warrant for the purpose of the investigation,he cannot be said to have taken cognizance of the offence.”

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16. From the aforenoted judicial pronouncements, it is clear thatbeing an expression of indefinite import, it is neither practicablenor desirable to precisely define as to what is meant by “takingcognizance”. Whether the Magistrate has or has not takencognizance of the offence will depend upon the circumstances ofthe particular case, including the mode in which the case is soughtto be instituted and the nature of the preliminary action.

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17. Nevertheless, it is well settled that before a Magistrate canbe said to have taken cognizance of an offence, it is imperativethat he must have taken notice of the accusations and appliedhis mind to the allegations made in the complaint or in the policeEreport or the information received from a source other than apolice report, as the case may be, and the material filed therewith.It needs little emphasis that it is only when the Magistrate applieshis mind and is satisfied that the allegations, if proved, wouldconstitute an offence and decides to initiate proceedings againstthe alleged offender, that it can be positively stated that he hasFtaken cognizance of the offence. Cognizance is in regard to theoffence and not the offender.”

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9.5 In the case of Subramanian Swamy v. Manmohan Singh,(2012) 3 SCC 64, it is observed in paragraphs 34 to 37 as under:

“34. The argument of the learned Attorney General that thequestion of granting sanction for prosecution of a public servantcharged with an offence under the 1988 Act arises only at thestage of taking cognizance and not before that is neither supportedby the plain language of the section nor the judicial precedentsrelied upon by him. Though, the term “cognizance” has not been G

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defined either in the 1988 Act or CrPC, the same has acquired adefinite meaning and connotation from various judicial precedents.In legal parlance cognizance is “taking judicial notice by the courtof law, possessing jurisdiction, on a cause or matter presentedbefore it so as to decide whether there is any basis for initiatingproceedings and determination of the cause or matter judicially”.

35. In R.R. Chari v. State of U.P AIR 1951 SC 207, the three-Judge Bench approved the following observations made by theCalcutta High Court in Supt. and Remembrancer of Legal Affairsv. Abani Kumar Banerjee AIR 1950 Cal. 437,: (AIR p. 438,para 7)

“7. … What is ‘taking cognizance’ has not been defined inthe Criminal Procedure Code, and I have no desire now to attemptto define it. It seems to me clear, however, that before it can besaid that any Magistrate has taken cognizance of any offenceunder Section 190(1)(a), Criminal Procedure Code, he must notonly have applied his mind to the contents of the petition, but hemust have done so for the purpose of proceeding in a particularway as indicated in the subsequent provisions of this Chapter,—proceeding under Section 200, and thereafter sending it for inquiryand report under Section 202. When the Magistrate applies hismind not for the purpose of proceeding under the subsequentsections of this Chapter, but for taking action of some other kinde.g. ordering investigation under Section 156(3), or issuing a searchwarrant for the purpose of the investigation, he cannot be said tohave taken cognizance of the offence.”

36. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, theCourt referred to Section 190 CrPC and observed: (SCC p. 696,para 43)

“43. … In its broad and literal sense, it means taking noticeof an offence. This would include the intention of initiating judicialproceedings against the offender in respect of that offence ortaking steps to see whether there is any basis for initiating judicialproceedings or for other purposes. The word ‘cognizance’ indicatesthe point when a Magistrate or a Judge first takes judicial noticeof an offence. It is entirely a different thing from initiation ofproceedings; rather it is the condition precedent to the initiation of AB

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proceedings by the Magistrate or the Judge. Cognizance is takenof cases and not of persons.”

37. In State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728,this Court referred to the provisions of Chapter XIV and Sections190 and 196(1-A) CrPC and observed: (SCC p. 732, para 8)

“8. … There is no bar against registration of a criminalcase or investigation by the police agency or submission of a reportby the police on completion of investigation, as contemplated bySection 173 CrPC. If a criminal case is registered, investigationof the offence is done and the police submits a report as a resultof such investigation before a Magistrate without the previoussanction of the Central Government or of the State Governmentor of the District Magistrate, there will be no violation of Section196(1-A) CrPC and no illegality of any kind would be committed.”

9.6 In the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC705, it is observed and held in paragraphs 12 to 15 as under:

“12. We will now examine whether the order directing investigationunder Section 156(3) CrPC would amount to taking cognizanceof the offence, since a contention was raised that the expression“cognizance” appearing in Section 19(1) of the PC Act will haveto be construed as post-cognizance stage, not pre-cognizance stageand, therefore, the requirement of sanction does not arise prior totaking cognizance of the offences punishable under the provisionsof the PC Act.

13. The expression “cognizance” which appears in Section 197CrPC came up for consideration before a three-Judge Bench ofthis Court in State of U.P. v. Paras Nath Singh (2009) 6 SCC372, and this Court expressed the following view: (SCC pp. 375,para 6)

“6. … ‘10. … And the jurisdiction of a Magistrate to takecognizance of any offence is provided by Section 190 of theCode, either on receipt of a complaint, or upon a police reportor upon information received from any person other than apolice officer, or upon his knowledge that such offence hasbeen committed. So far as public servants are concerned, thecognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriateauthority, if the offence, alleged to have been committed, wasin discharge of the official duty. The section not only specifiesthe persons to whom the protection is afforded but it alsospecifies the conditions and circumstances in which it shall beavailable and the effect in law if the conditions are satisfied.The mandatory character of the protection afforded to a publicservant is brought out by the expression, ‘no court shall takecognizance of such offence except with the previous sanction’.Use of the words ‘no’ and ‘shall’ makes it abundantly clearthat the bar on the exercise of power of the court to takecognizance of any offence is absolute and complete. The verycognizance is barred. That is, the complaint cannot be takennotice of. According to Black’s Law Dictionary the word‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’or ‘power to try and determine causes’. In common parlance,it means taking notice of. A court, therefore, is precluded fromentertaining a complaint or taking notice of it or exercisingjurisdiction if it is in respect of a public servant who is accusedof an offence alleged to have been committed during dischargeof his official duty.”

14. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, thisCourt has observed as follows:

“13. It is necessary to mention here that taking cognizance ofan offence is not the same thing as issuance of process.Cognizance is taken at the initial stage when the Magistrateapplies his judicial mind to the facts mentioned in a complaintor to a police report or upon information received from anyother person that an offence has been committed. The issuanceof process is at a subsequent stage when after considering thematerial placed before it the court decides to proceed againstthe offenders against whom a prima facie case is made out.

The meaning of the said expression was also considered by thisCourt in Subramanian Swamy case (2012) 3 SCC 64.

15. The judgments referred to hereinabove clearly indicate thatthe word “cognizance” has a wider connotation and is not merelyconfined to the stage of taking cognizance of the offence. When AB

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Aa Special Judge refers a complaint for investigation under Section156(3) CrPC, obviously, he has not taken cognizance of the offenceand, therefore, it is a pre-cognizance stage and cannot be equatedwith post-cognizance stage. When a Special Judge takescognizance of the offence on a complaint presented under Section200 CrPC and the next step to be taken is to follow up underBSection 202 CrPC. Consequently, a Special Judge referring thecase for investigation under Section 156(3) is at pre-cognizancestage.”

10. Having heard learned counsel for the parties and havingperused the relevant provisions of the law as also the judicialCpronouncements, we are of the view that the High Court has notcommitted any error in not quashing the order passed by the learnedMagistrate and not quashing the criminal proceedings for the offencesunder Sections 379 and 414. It is required to be noted that the learnedMagistrate in exercise of the suo motu powers conferred under SectionD156(3), Cr.P.C. directed the concerned In-charge/SHO of the policestation to lodge/register the crime case/FIR and directed initiation ofinvestigation and directed the concerned In-charge/SHO of the policestation to submit a report after due investigation.

Applying the law laid down by this Court in the cases referred toEhereinabove, it cannot be said that at this stage the learned Magistratehad taken any cognizance of the alleged offences attracting bar underSection 22 of the MMDR Act. On considering the relevant provisions ofthe MMDR Act and the Rules made thereunder, it cannot be said thatthere is a bar against registration of a criminal case or investigation bythe police agency or submission of a report by the police on completionFof investigation, as contemplated by Section 173, Cr.P.C.

10.1 At this stage, it is required to be noted that as per Section 21of the MMDR Act, the offences under the MMDR Act are cognizable.10.2 As specifically observed by this Court in the case of Anil Kumar(supra), ‘when a Special Judge refers a complaint for investigation underGSection 156(3) Cr.P.C., obviously, he has not taken cognizance of theoffence and, therefore, it is a pre-cognizance stage and cannot be equatedwith post-cognizance stage’.

10.3 Even as observed by this Court in the case of R.R. Chari(supra), even the order passed by the Magistrate ordering investigationH

JAYANT ETC. v. THE STATE OF MADHYA PRADESH[M. R. SHAH, J.]

under Section 156(3), or issuing a search warrant for the purpose of theinvestigation, he cannot be said to have taken cognizance of the offence.As observed by the Constitution Bench of this Court in the case of A.R.Antulay (supra), filing of a complaint in court is not taking cognizanceand what exactly constitutes taking cognizance is different from filing ofa complaint. Therefore, when an order is passed by the Magistrate forinvestigation to be made by the police under Section 156(3) of the Code,which the learned Magistrate did in the instant case, when such an orderis made the police is obliged to investigate the case and submit a reportunder Section 173(2) of the Code. That thereafter the investigating officeris required to send report to the authorised officer and thereafter asenvisaged under Section 22 of the MMDR Act the authorised officer asmentioned in Section 22 of the MMDR Act may file the complaint beforethe learned Magistrate along with the report submitted by the investigatingofficer and at that stage the question with respect to taking cognizanceby the learned Magistrate would arise.

11. Now so far as the submission on behalf of the privateappellants-violators that in view of the fact that violators were permittedto compound the violation in exercise of powers under Rule 53 of the1996 Rules or Rule 18 of the 2006 Rules and the violators accepted thedecision and deposited the amount of penalty determined by theappropriate authority for compounding the offences/violations, therecannot be any further criminal proceedings for the offences underSections 379 and 414 IPC and Sections 4/21 of the MMDR Act and thereliance placed on Section 23A of the MMDR Act is concerned, it istrue that in the present case the appropriate authority determined thepenalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules,which the private appellants-violators paid and therefore the bar containedin sub-section 2 of Section 23A of the MMDR Act will be attracted.Section 23A as it stands today has been brought on the Statute in theyear 1972 on the recommendations of the Mineral Advisory Board whichprovides that any offence punishable under the MMDR Act or any rulemade thereunder may, either before or after the institution of theprosecution, be compounded by the person authorised under section 22to make a complaint to the court with respect to that offence, on paymentto that person, for credit to the Government, of such sum as that personmay specify. Sub-section 2 of Section 23A further provides that wherean offence is compounded under sub-section (1), no proceeding or furtherproceeding, as the case may be, shall be taken against the offender in AB

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Arespect of the offence so compounded, and the offender, if in custody,shall be released forthwith. Thus, the bar under sub-section 2 of Section23A shall be applicable with respect to offences under the MMDR Actor any rule made thereunder. However, the bar contained in sub-section2 of Section 23A shall not be applicable for the offences under the IPC,such as, Section 379 and 414 IPC. In the present case, as observed andBheld hereinabove, the offences under the MMDR Act or any rule madethereunder and the offences under the IPC are different and distinctoffences. Therefore, as in the present case, the mining inspectors preparedthe cases under Rule 53 of the 1996 Rules and submitted them beforethe mining officers with the proposals of compounding the same for theCamount calculated according to the concerned rules and the Collectorapproved the said proposal and thereafter the private appellants-violatorsaccepted the decision and deposited the amount of penalty determinedby the Collector for compounding the cases in view of sub-section 2 ofSection 23A of the MMDR Act and the 1996 rules and even the 2006rules are framed in exercise of the powers under Section 15 of theDMMDR Act, criminal complaints/proceedings for the offences underSections 4/21 of the MMDR Act are not permissible and are not requiredto be proceeded further in view of the bar contained in sub-section 2 ofSection 23A of the MMDR Act. At the same time, as observedhereinabove, the criminal complaints/proceedings for the offences underEthe IPC – Sections 379/414 IPC which are held to be distinct and differentcan be proceeded further, subject to the observations made hereinabove.

However, our above conclusions are considering the provisionsof Section 23A of the MMDR Act, as it stands today. It might be truethat by permitting the violators to compound the offences under the FMMDR Act or the rules made thereunder, the State may get the revenueand the same shall be on the principle of person who causes the damageshall have to compensate the damage and shall have to pay the penaltylike the principle of polluters to pay in case of damage to the environment.However, in view of the large scale damages being caused to the nature

and as observed and held by this Court in the case of Sanjay (supra),Gthe policy and object of MMDR Act and Rules are the result of anincreasing awareness of the compelling need to restore the seriousecological imbalance and to stop the damages being caused to the natureand considering the observations made by this Court in the aforesaiddecision, reproduced hereinabove, and when the violations like this areHincreasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severedamage as observed by this Court in the case of Sanjay (supra),reproduced hereinabove, we are of the opinion that the violators cannotbe permitted to go scot free on payment of penalty only. There must besome stringent provisions which may have deterrent effect so that theviolators may think twice before committing such offences and beforecausing damage to the earth and the nature.

It is the duty cast upon the State to restore the ecological imbalanceand to stop damages being caused to the nature. As observed by thisCourt in the case of Sanjay (supra), excessive in-stream sand-and-gravel mining from river beds and like resources causes the degradationof rivers. It is further observed that apart from threatening bridges, sandmining transforms the riverbeds into large and deep pits, as a result, thegroundwater table drops leaving the drinking water wells on theembankments of these rivers dry. Even otherwise, sand/mines is a publicproperty and the State is the custodian of the said public property andtherefore the State should be more sensitive to protect the environmentand ecological balance and to protect the public property the State shouldalways be in favour of taking very stern action against the violators whoare creating serious ecological imbalance and causing damages to thenature in any form. As the provisions of Section 23A are not underchallenge and Section 23A of the MMDR Act so long as it stands, weleave the matter there and leave it to the wisdom of the legislatures andthe concerned States.

12. Now so far as the appeal preferred by the State on the premisethat the order passed by the learned Magistrate, confirmed by the HighCourt, affects the powers of the authorised person to compound theoffence, in exercise of powers under Rule 53 of the 1996 Rules andRule 18 of the 2006 Rules is concerned, the same is absolutelymisconceived. By the order passed by the learned Magistrate, confirmedby the High Court, by no stretch of imagination, it can be said that directingto file the first information report/crime case for the offences under theIPC and even for the offences under the MMDR Act and the rulesmade thereunder, it affects any of the powers of the authorised personto compound the offence. In fact, in view of the decision of this Court inthe case of Sanjay (supra), in which this Court has specifically observedand held that so far as the offence under the IPC is concerned, thereshall not be any bar under Section 22 of the MMDR Act and when A

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Abefore the High Court the State supported the order passed by the learnedMagistrate and rightly so and when the impugned judgment and orderpassed by the High Court is in favour of the State, as such, the Stateought not to have filed the special leave petition/appeal.

13. After giving our thoughtful consideration in the matter, in theBlight of the relevant provisions of the MMDR Act and the Rules madethereunder vis-à-vis the Code of Criminal Procedure and the Penal Code,and the law laid down by this Court in the cases referred to hereinaboveand for the reasons stated hereinabove, our conclusions are as under:

i) that the learned Magistrate can in exercise of powers underCSection 156(3) of the Code order/direct the concerned In-charge/SHOof the police station to lodge/register crime case/FIR even for the offencesunder the MMDR Act and the Rules made thereunder and at this stagethe bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attractedDonly when the learned Magistrate takes cognizance of the offences underthe MMDR Act and Rules made thereunder and orders issuance ofprocess/summons for the offences under the MMDR Act and Rulesmade thereunder;

iii) for commission of the offence under the IPC, on receipt of theEpolice report, the Magistrate having jurisdiction can take cognizance ofthe said offence without awaiting the receipt of complaint that may befiled by the authorised officer for taking cognizance in respect of violationof various provisions of the MMDR Act and Rules made thereunder;and Fiv) that in respect of violation of various provisions of the MMDRAct and the Rules made thereunder, when a Magistrate passes an orderunder Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respectof the violation of various provisions of the Act and Rules made thereunderand thereafter after investigation the concerned In-charge of the policeGstation/investigating officer submits a report, the same can be sent to theconcerned Magistrate as well as to the concerned authorised officer asmentioned in Section 22 of the MMDR Act and thereafter the concernedauthorised officer may file the complaint before the learned Magistratealong with the report submitted by the concerned investigating officerand thereafter it will be open for the learned Magistrate to take cognizanceH

after following due procedure, issue process/summons in respect of theviolations of the various provisions of the MMDR Act and Rules madethereunder and at that stage it can be said that cognizance has beentaken by the learned Magistrate.

v) in a case where the violator is permitted to compound theoffences on payment of penalty as per sub-section1 of Section 23A,considering sub-section 2 of Section 23A of the MMDR Act, there shallnot be any proceedings or further proceedings against the offender inrespect of the offences punishable under the MMDR Act or any rulemade thereunder so compounded. However, the bar under sub-section2 of Section 23A shall not affect any proceedings for the offences underthe IPC, such as, Sections 379 and 414 IPC and the same shall beproceeded with further.

14. In view of the above and for the reasons stated above, theappeals filed by the violators/private appellants are partly allowed, to theextent quashing the proceedings for the offences under the MMDR Act– Sections 4/21 of the MMDR Act only. The appeal preferred by theState of Madhya Pradesh stands dismissed.

Divya Pandey

Appeals disposed of.

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