G H KANWAR PAL SINGH versus THE STATE OF UTTAR PRADESH AND ANOTHER on 18 December 2019

[2019] 18 S.C.R. 1158

SUPREME COURT REPORTS

[2019] 18 S.C.R.

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KANWAR PAL SINGH

v.

THE STATE OF UTTAR PRADESH AND ANOTHER

(Criminal Appeal No. 1920 of 2019 )

BDECEMBER 18, 2019

[S. ABDUL NAZEER AND SANJIV KHANNA , JJ.]

Mines and Minerals (Development and Regulation) Act, 1957– ss.4, 21 and 22 – Penal Code, 1860 – s.379 – Uttar PradeshMinor Mineral (Concession) Rules, 1963 – rr.3, 7 and 57 –CPrevention of Damage to Public Property Act, 1984 – ss.3 and 4 –The appellant was granted rights to excavate sand vide mining leaseover a plot – It was alleged that the appellant was mining outsidethe permitted area and had illegally excavated a pit – Consequentto which, FIR was registered u/s.379 IPC, rr. 3, 57 and 7 of theDRules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of the Act,1984 – The Magistrate took cognizance and summoned appellantfor trial – Petition filed by the appellant u/s. 482 CrPC before theHigh Court to quash criminal proceedings was dismissed – On appealbefore the Supreme Court, the appellant contended that he waswrongly charge-sheeted by the police for the offences, as at theEbest there was violation of s.4 which was punishable u/s. 21 of theAct, 1957 – It was further contended that the Act, 1957 is a specialstatute, the prosecution for an offence u/s. 379 IPC was notmaintainable – Held: In the State (NCT of Delhi) v. Sanjay, it wasobserved that considering the principles of interpretation andFwordings used in s.22 of the Act, 1957, the provision is not a completeand absolute bar for taking action by the police for illegal anddishonestly committing theft of minerals including sand from theriverbed – Further, the said judgment specifically referred to s.26of the General Clauses Act and stated that the offence u/s.4 r/w.s.21 of the Mines Regulation Act is different from the offenceGpunishable u/s.379 of IPC – Thus, they are two ‘different’ and notthe ‘same offence’ – Therefore, contentions of the appellant wererejected – There was no bar on the Court from taking cognizanceof offence u/s.379 IPC – And violation of s.4 of the Act, 1957,being a cognizable offence, the police could have investigated theHsame – However, it was clarified that prosecution and cognizance

u/s. 21 r/w. s.4 of the Act, 1957 will not be valid and justified inabsence of authorisation – In view thereof, the order of the HighCourt refusing to set aside the prosecution and cognizance of theoffence u/s.379 of the IPC and ss.3 & 4 of the Prevention of Damageto Public Property Act was upheld – General Clauses Act – s.26.

Jeewan Kumar Raut and Another v. Central Bureau ofInvestigation – distinguished – The State Police filed the charge-sheet/complaint against the appellant u/s.379 IPC, rr. 3, 57 and 7of the Rules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of theAct, 1984 – Appellant contended that the State police was notauthorised and therefore, could not have filed the charge-sheet/complaint and strongly placed reliance on the Jeewan Kumar Rautcase – Held: In Jeewan Kumar Raut case reference was made tocl.(iv) of Sub-section (3) to s.13 of the Transplantation of HumanOrgans Act, 1994 which states that the appropriate authority shallinvestigate any complaint of breach of any of the provisions of thesaid Act or any rules made thereunder and take appropriate action– However, there is no similar provision under the Mines RegulationAct, 1957 – The issue raised in the Jeewan Kumar Raut case wasentirely different from the one raised in the present case – No meritin the contention of the appellant – The violation of s.4 of the Act,1957 being a cognizable offence, the police could have investigatedthe same, there being no bar under the Act, 1957 – Mines andMinerals (Development and Regulation) Act, 1957 – Penal Code,1860 – Uttar Pradesh Minor Mineral (Concession) Rules, 1963 –Prevention of Damage to Public Property Act, 1984.

Partly allowing the appeal, the Court

Conclusion

Partly allowing the appeal, the Court

HELD: 1. In the written submissions the appellant has reliedupon Belsund Sugar Company Limited v. State of Bihar, SharatBabu Digumarti v. Government of NCT of Delhi and Suresh Nandav. Central Bureau of Investigation to contend that where there isa special act dealing with a special subject, resort cannot be takento a general act. The said submission has no force in view of theratio in State (NCT of Delhi) v. Sanjay which specifically refers toSection 26 of the General Clauses Act and states that the offenceunder Section 4 read with Section 21 of the Mines and Minerals(Development and Regulation) Act, 1957 is different from theoffence punishable under Section 379 of the IPC. Thus, they are A

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Atwo ‘different’ and not the ‘same offence’. It would be relevant tostate here that the Delhi High Court in its decision reported asSanjay v. State, which was impugned in State (NCT of Delhi) v.Sanjay, had accepted an identical argument to hold that once anoffence is punishable under Section 21 of the Mines RegulationAct, the offence would not be punishable under Section 379 ofBthe IPC. This reasoning was rejected by this Court and thejudgment of the Delhi High Court was reversed. The contentionrelying on the same reasoning before this Court, therefore, mustbe rejected. [Para 7][1170-C-E]

2. In Jeewan Kumar Raut and Another v. Central Bureau ofCInvestigation case on which considerable reliance was placed bythe appellant at the time of the hearing. The said judgment wasdistinguished in Institute of Chartered Accountants of India v. VimalKumar Surana by observing that the provisions of theTransplantation of Human Organs Act, 1994 (TOHO Act) wereDdifferent and were not similar to the provisions of sub-section 2to Section 24-A, 25 and 26 of the Chartered Accountants Act asthe TOHO Act is hedged with a non-obstante clause. This Courtwould like to further elucidate and explain that in Jeewan KumarRaut this Court was examining the right of the appellant thereinto claim statutory bail in terms of sub-section (2) to Section 167Eof the Code on the ground that the Central Bureau ofInvestigation (CBI) had failed to file the charge-sheet within 90days from the date of arrest. Relying on Section 22 of the TOHOAct, which mandates filing of a complaint by a person dulyauthorised by a competent authority, it was observed that theFTOHO Act is a special law which deals with the subjectsmentioned therein, viz., offences relating to the removal of humanorgans, etc. Ordinarily, any person can set the criminal law intomotion but the legislature keeping in view the sensitivity andimportance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specifiedGtherein. Thereafter, reference was made to Section 4 of the Code,to hold that the TOHO Act being a special Act, the mattersrelating to offences covered thereunder would be governed bythe provisions of said Act, which would prevail over the provisionsof the Code. Reference was made to clause (iv) of sub-sectionH(3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach ofany of the provisions of the said Act or any rules made thereunderand take appropriate action. There is no similar provision underthe Mines Regulation Act, 1957. [Para 9][1170-G-H; 1171-A-E]

3. The Jeewan Kumar Raut was dealing with a contentionand issue entirely different from the one raised in the presentcase. It is undisputed that decisions of the courts cannot be blindlyapplied in disjunction of the factual circumstances and issues ofeach case. The court decisions expound on the law as applicableto the specific circumstances of each case and such expositionmay not therefore be necessarily applicable to another case givenits own peculiarities. Therefore, the contention predicated onthe ratio in Jeewan Kumar Raut holds no merit. [Para 10][1171-H; 1172-A-B]

4. The decision of the Calcutta High Court in Seema Sarkarv. State wherein the High Court held the proceedings to be invalidand illegal as the Magistrate had taken cognizance on the basisof a charge-sheet submitted by the police under Section 21(2) ofthe Mines Regulation Act and Section 379 of the IPC, observingthat the cognizance was one that cannot be split or divided. TheHigh Court had further observed that as the complaint was notmade in terms of Section 22 of the Mines Regulation Act, thecognizance was bad and contrary to law. This Court has alreadynoted the decision of the Delhi High Court which had directedthat the FIR should not be treated as registered under Section379 of the IPC but only under Section 21 of the Mines RegulationAct. These decisions of the Calcutta High Court and the DelhiHigh Court were reversed and set aside by this Court in State(NCT of Delhi) v. Sanjay after referring to Section 26 of theGeneral Clauses Act and the meaning of the expression ‘sameoffence’, to observe that the offence under Section 21 read withSection 4 of the Mines Regulation Act and Section 379 of theIPC are different and distinct. The aforesaid reasoning compelsto reject the contention of the appellant that the action asimpugned in the FIR is a mere violation of Section 4 which is anoffence cognizable only under Section 21 of the Mines RegulationAct and not under any other law. There is no bar on the Courtfrom taking cognizance of the offence under Section 379 of the A

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AIPC. This Court would also observe that the violation of Section4 being a cognizable offence, the police could have alwaysinvestigated the same, there being no bar under the MinesRegulation Act, unlike Section 13(3)(iv) of the TOHO Act. [Para11][1172-C-G]

B5. In view of the aforesaid discussion, this Court woulduphold the order of the High Court refusing to set aside theprosecution and cognizance of the offence taken by the Magistrateunder Section 379 of the IPC and Sections 3 and 4 of thePrevention of Damage to Public Property Act. However, it isclarified that prosecution and cognizance under Section 21 readCwith Section 4 of the Mines Regulation Act will not be valid andjustified in the absence of the authorisation. [Para 12][1172-H;1173-A-B]

State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 :[2014] 9 SCR 1063 – relied on.D

Jeewan Kumar Raut and Another v. Central Bureau ofInvestigation (2009) 7 SCC 526 : [2009] 10 SCR 272– distinguished.

H. N. Rishbud v. State of Delhi AIR 1955 SC 196 :E[1955] SCR 1150; Directorate of Enforcement v.Deepak Mahajan (1994) 3 SCC 440 : [1994] 1 SCR445; Belsund Sugar Company Limited v. State of Bihar(1999) 9 SCC 620 : [1999] 1 Suppl. SCR 146; SharatBabu Digumarti v. Government of NCT of Delhi (2017)2 SCC 18 : [2016] 8 SCR 1015; Suresh Nanda v.FCentral Bureau of Investigation (2008) 3 SCC 674 :[2008] 1 SCR 1212; Maqbool Hussain v. State ofBombay AIR 1953 SC 325 : [1953] SCR 730; OmParkash Gupta v. State of U.P. AIR 1957 SC 458 :[1957] SCR 423; State of Madhya Pradesh v.GVeereshwar Rao Agnihotri AIR 1957 SC 592 : 1957SCR 868; T. S. Baliah v. ITO AIR 1969 SC 701 : [1969]3 SCR 65; Collector of Customs v. Vasantraj BhagwanjiBhatia (1988) 3 SCC 467 : [1988] 3 SCR 450; State ofBihar v. Murad Ali Khan (1988) 4 SCC 655 : [1988] 3Suppl. SCR 455 Avtar Singh v. State of Punjab AIRH1965 SC 666 : [1965] 1 SCR 103; Institute of Chartered KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESHAND ANOTHER

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Accountants of India v. Vimal Kumar Surana (2011) 1SCC 534 : [2010] 14 SCR 248 – referred to.

Sanjay v. State (2009) 109 DRJ 594; Seema Sarkar v.State (1995) 1 Cal LT 95 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1920 of 2019.

From the Judgment and Order dated 22.07.2019 of the HighCourt of Judicature at Allahabad in Criminal Misc. Application No. 28020of 2019.

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Manoj Swarup, Sr. Adv., Rajiv Bakshi, Ms. Vidisha Swarup,Ms. Neelmani Pant, Avinash Kr. Lakhanpal, Advs. for the Appellant.

Vimlesh Kumar Shukla, Sr. Adv., Mrs. Rachna Gupta, Anil KumarSinha, Advs. for the Respondents.

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1164SUPREME COURT REPORTS

[2019] 18 S.C.R.

A The Judgment of the Court was delivered bySANJIV KHANNA, J.

1. Leave granted.

2. Kanwar Pal Singh, the appellant, impugns the order dated 22[nd]BJuly 2019 whereby the High Court of Judicature at Allahabad hasdismissed his petition under Section 482 of the Code of CriminalProcedure, 1973 (‘Code’ for short) for quashing criminal prosecutionunder Section 379 of the Indian Penal Code, 1860 (‘IPC’ for short),Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession)CRules, 1963, Sections 4 and 21 of the Mines and Minerals (Developmentand Regulation) Act, 1957 (‘Mines Regulation Act’ for short), and Sections3 and 4 of the Prevention of Damage to Public Property Act, 1984 arisingout of Crime Case No. 289 of 2018, Police Station Vindyachal, DistrictMirzapur, Uttar Pradesh. The appellant had also challenged, withoutsuccess before the High Court, the order dated 8[th] February 2019 passedDby the Chief Judicial Magistrate taking cognizance and summoning theappellant for trial.

3. In brief, the facts of the case are that on the basis of a complaintfiled by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur,FIR No. 0289 dated 15[th] November 2018 was registered at Police Station,EVindyachal, inter alia recording that on 2[nd] November 2018, duringinspection of the mining site in Village Nandni, Tehsil Sadar, DistrictMirzapur, the Nayab Tehsildar had noticed illegal mining whereupon areport vide letter dated 12[th] November 2018 was submitted to the Sub-Divisional Magistrate, Sadar. The appellant is a Director of M/s. KanwarFEnterprises Pvt. Ltd., which was granted rights to excavate sand videmining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5measuring 12.35 acre in Village Nandni. However, it is alleged that theappellant was mining sand outside the permitted area in Village Babhninumbered as 534/2 where he had illegally excavated a pit 50 feet long,50 feet wide and 2 meter deep. Consequently, the District MagistrateGhad ordered for immediate registration of the FIR under the aforesaidprovisions.

4. Though a number of contentions were raised before the HighCourt, the learned senior counsel for the appellant has during the courseof arguments before us restricted his submissions to the violation ofH

Section 22 of the Mines Regulation Act and the legal effect thereof.Referring to the contents of the FIR, it is submitted that the appellanthas been wrongly charge-sheeted by the police for the offences, as atthe best there was violation of Section 4, which is punishable underSection 21 of the Mines Regulation Act. It is highlighted that M/s. KanwarEnterprises Pvt. Ltd. had held a valid lease for mining. As per Section22 no court can take cognizance of the offences under the MinesRegulation Act, except on a complaint in writing by a person authorisedby the Central or State Government. The State police not beingauthorised, could not have filed the charge-sheet/complaint. Thecontention predicated on Section 22 of the Mines Regulation Act is madeby relying upon the judgment of this Court in Jeewan Kumar Raut andAnother v. Central Bureau of Investigation[1]. In the written submissionsfiled by the appellant, a relatively new plea and contention has beenraised by relying upon the judgments of this Court in Belsund SugarCompany Limited v. State of Bihar,[2]Sharat Babu Digumarti v.Government of NCT of Delhi[3]and Suresh Nanda v. Central Bureauof Investigation[4]to urge that the Mines Regulation Act being a specialstatute, prosecution for an offence under Section 379 of the IPC wouldnot 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 offenceagainst illegal sand mining in Sanjay (supra) was registered suo motodue to non-production of any document to establish mining rights andtherefore, the ratio in that case would apply only to cases of illegal miningwhere the mining lease had already been revoked or there was nosubsisting mining lease.

5. We find the submission of the appellant to be untenable. InSanjay (supra), a Division Bench of this Court had decided appealspreferred against the conflicting judgments of the Delhi High Court,Gujarat High Court, Kerala High Court, Calcutta High Court, MadrasHigh Court and Jharkhand High Court on the question whether a personcan be prosecuted for the offences under Sections 379/114 and otherprovisions of the IPC on the allegations of illegal mining in view of Section22 of the Mines Regulation Act, which reads as under:

1 (2009) 7 SCC 526

2 (1999) 9 SCC 620

3 (2017) 2 SCC 18

4 (2008) 3 SCC 674

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“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 the StateGovernment.”

BAfter adverting to the provisions of the Code, namely, Sections2(c), 2(d) and 2(h) which define ‘cognizable offence’, ‘complaint’ and‘investigation’ respectively, this Court had referred to Section 4 of theCode, which reads as under:

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

(2) All offences under any other law shall be investigated, inquiredinto, tried, and otherwise dealt with according to the sameDprovisions, but subject to any enactment for the time being in forceregulating the manner or place of investigating, inquiring into, tryingor 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 theECode, subject to any enactment regulating the manner or place ofinvestigation, trial etc. of such offences. Section 21 of the MinesRegulation Act, it was observed, states that the offences specifiedthereunder are cognizable. Section 41 of the Code was referred toelucidate that the police has the power to arrest without warrant in caseof cognizable offences. Sections 149 to 152 of Chapter XI of the CodeFthat require the police to prevent cognizable offences either by arrest orotherwise, etc. were referred, to hold that the aforementioned provisionsshow that a police officer of his own authority has the duty to preventany injury attempted to be committed to any public property or nationalassets and also to prosecute such persons in accordance with law.GAccordingly, in Sanjay (supra) it was held that the investigationof the offences is within the domain of the police and the power of apolice officer to investigate into cognizable offences is not ordinarilyimpinged by any fetters albeit the power must be exercised as per thestatutory provisions and for legitimate purposes. The courts wouldinterfere only when while examining the case they find that the policeH

officer in exercise of the investigatory powers has breached the statutoryprovisions and put the personal liberty and/or the property of a citizen injeopardy by an illegal and improper use of the powers or when theinvestigation by the police is not found to be bona fide or when theinvestigation is tainted with animosity. While examining the issue, thisCourt in Sanjay (supra) took notice of the decision in H.N. Rishbud v.State of Delhi[6]wherein this Court has held that a defect or illegality ininvestigation, however serious, has no direct bearing on the competenceor the procedure relating to the taking of the cognizance or trial. Thecardinal principle of law as noted by this Court in Directorate ofEnforcement v. Deepak Mahajan[7] is that every law is designed tofurther the ends of justice and should not be frustrated on meretechnicalities. The public trust doctrine was cited and applied tounderscore the principle that certain resources like air, sea, water, forestsand minerals are of great importance to the people as a whole and thatthe government is enjoined to hold such resources in trust for the benefitof the general public and to use them for their benefit than to serveprivate interests.

6. This Court in Sanjay (supra) has cited several decisions whereinthe challenge to the prosecution on the ground that there can be nomultiplicity of offences under different enactments was resolved andanswered by relying upon Section 26 of the General Clauses Act, whichwe would like to reproduce for the sake of convenience:

“26. Provision as to offences punishable under two or more enactments.— Where an act or omission constitutes an offenceunder two or more enactments, then the offender shall be liable tobe prosecuted and punished under either or any of thoseenactments, but shall not be liable to be punished twice for thesame 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 ‘sameoffence’ has been interpreted by this Court in numerous decisions viz.,Maqbool Hussain v. State of Bombay[8] with reference to the provisionsof the Sea Customs Act and the Foreign Exchange Regulation Act, 1947; 6 AIR 1955 SC 196

7 (1994) 3 SCC 4408 AIR 1953 SC 325

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AOm Parkash Gupta v. State of U.P.[9]and State of Madhya Pradesh v.Veereshwar Rao Agnihotri[10]with reference to Section 409 of the IPCand Section 5(2) of the Prevention of Corruption Act; T.S. Baliah v.ITO[11]with reference to Section 52 of the Income Tax Act, 1922 andSection 177 of the IPC; Collector of Customs v. Vasantraj BhagwanjiBhatia[12], with reference to the provisions of the Customs Act 1962 andBthe provisions of the Gold (Control) Act, 1968; State of Bihar v. MuradAli Khan[13] with reference to the provisions of Sections 447, 429 and379 of the IPC and provisions of the Wildlife (Protection) Act, 1972;Avtar Singh v. State of Punjab[14] with reference to Section 39 of theElectricity Act, 1910 and the provisions of theft under the IPC; andCInstitute of Chartered Accountants of India v. Vimal Kumar Surana[15]with reference to the provisions of the Chartered Accountants Act, 1949and offences under Sections 419, 468, 471 and 472 of the IPC.Elucidating on the provisions of Section 4 read with Sections 21 and 22of the Mines Regulation Act and the offence under Section 379 of theIPC, it was observed in Sanjay (supra):D

“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 thatEover 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 policeFauthorities of the State, it will cause serious repercussions asmentioned hereinabove. It will not only change the river hydrologybut also will deplete the groundwater levels.

70. There cannot be any dispute with regard to restrictions imposedunder the MMDR Act and remedy provided therein. In any case, G

9 AIR 1957 SC 458

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14 AIR 1965 SC 666H15 (2011) 1 SCC 534

where there is a mining activity by any person in contravention ofthe provisions of Section 4 and other sections of the Act, the officerempowered and authorised under the Act shall exercise all thepowers including making a complaint before the JurisdictionalMagistrate. It is also not in dispute that the Magistrate shall insuch cases take cognizance on the basis of the complaint filedbefore it by a duly authorised officer. In case of breach andviolation of Section 4 and other provisions of the Act, the policeofficer cannot insist the Magistrate for taking cognizance underthe Act on the basis of the record submitted by the police allegingcontravention of the said Act. In other words, the prohibitioncontained in Section 22 of the Act against prosecution of a personexcept on a complaint made by the officer is attracted only whensuch person is sought to be prosecuted for contravention of Section4 of the Act and not for any act or omission which constitutes anoffence under the Penal Code.

71. However, there may be a situation where a person withoutany lease or licence or any authority enters into river and extractssand, gravel and other minerals and remove or transport thoseminerals in a clandestine manner with an intent to removedishonestly those minerals from the possession of the State, isliable to be punished for committing such offence under Sections378 and 379 of the Penal Code.

72. From a close reading of the provisions of the MMDR Actand the offence defined under Section 378 IPC, it is manifestthat the ingredients constituting the offence are different. Thecontravention of terms and conditions of mining lease ordoing mining activity in violation of Section 4 of the Act is anoffence punishable under Section 21 of the MMDR Act,whereas dishonestly removing sand, gravel and other mineralsfrom the river, which is the property of the State, out of theState’s possession without the consent, constitute an offenceof theft. Hence, merely because initiation of proceeding forcommission of an offence under the MMDR Act on the basis ofcomplaint cannot and shall not debar the police from taking actionagainst persons for committing theft of sand and minerals in themanner mentioned above by exercising power under the Code ofCriminal Procedure and submit a report before the Magistrate for AB

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Ataking cognizance against such persons. In other words, in a casewhere there is a theft of sand and gravel from the governmentland, the police can register a case, investigate the same and submita final report 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.”B

(emphasis supplied)

7. As noticed above, in the written submissions the appellanthas relied upon Belsund Sugar Company Limited (supra), Sharat BabuDigumarti (supra) and Suresh Nanda (supra) to contend that whereCthere is a special act dealing with a special subject, resort cannot betaken to a general act. The said submission has no force in view of theratio in Sanjay (supra) as quoted above which specifically refers toSection 26 of the General Clauses Act and states that the offence underSection 4 read with Section 21 of the Mines Regulation Act is differentfrom the offence punishable under Section 379 of the IPC. Thus, theyDare two ‘different’ and not the ‘same offence’. It would be relevant tostate here that the Delhi High Court in its decision reported as Sanjay v.State[16], which was impugned in Sanjay (supra), had accepted an identicalargument to hold that once an offence is punishable under Section 21 ofthe Mines Regulation Act, the offence would not be punishable underESection 379 of the IPC. This reasoning was rejected by this Court andthe judgment of the Delhi High Court was reversed. The contentionrelying on the same reasoning before us, therefore, must be rejected.

8. We would also reject the contention raised by the appellant inthe written submissions that the alleged theft of sand is not punishableunder Section 379 read with Section 378 of the IPC as sand is anFimmovable property as per Section 3 (26) of the General Clauses Act.In the present case, sand had been excavated and was thereupon nolonger an immovable property. The sand on being excavated would loseits attachment to the earth, ergo, it is a movable property or goods capableof being stolen. {See Explanation 1 to Section 378 of the IPC and SanjayG(supra) as quoted above}

9. We would in the end refer to the judgment in Jeewan KumarRaut (supra) on which considerable reliance was placed by the appellantat the time of the hearing. The said judgment was distinguished in Institute H16 (2009) 109 DRJ 594

of Chartered Accountants (supra) by observing that the provisions ofthe Transplantation of Human Organs Act, 1994 (‘TOHO Act’ for short)were different and were not similar to the provisions of sub-section 2 toSection 24-A, 25 and 26 of the Chartered Accountants Act as the TOHOAct is hedged with a non-obstante clause. We would like to furtherelucidate and explain that in Jeewan Kumar Raut (supra) this Courtwas examining the right of the appellant therein to claim statutory bail interms of sub-section (2) to Section 167 of the Code on the ground thatthe Central Bureau of Investigation (‘CBI’ for short) had failed to filethe charge-sheet within 90 days from the date of arrest. Relying onSection 22 of the TOHO Act, which mandates filing of a complaint by aperson duly authorised by a competent authority, it was observed thatthe TOHO Act is a special law which deals with the subjects mentionedtherein, viz., offences relating to the removal of human organs, etc.Ordinarily, any person can set the criminal law into motion but thelegislature keeping in view the sensitivity and importance of the subjecthad provided that the violations under the TOHO Act would be dealtwith by the authorities specified therein. Thereafter, reference was madeto Section 4 of the Code as cited above, to hold that the TOHO Actbeing a special Act, the matters relating to offences covered thereunderwould be governed by the provisions of said Act, which would prevailover the provisions of the Code. Reference was made to clause (iv) ofsub-section (3) to Section 13 of the TOHO Act which states that theappropriate authority shall investigate any complaint of breach of any ofthe provisions of the said Act or any rules made thereunder and takeappropriate action. There is no similar provision under the MinesRegulation Act i.e. the Mines and Minerals (Development and Regulation)Act, 1957.

10. In Jeewan Kumar Raut (supra), it was noted that the CBIhas been designated as an appropriate authority under the provisions ofthe TOHO Act and therefore entitled to carry on investigation. In thiscontext, it was observed that Section 22 of the TOHO Act prohibitstaking of cognizance except on a complaint made by an appropriateauthority and therefore the police report filed by the CBI was only acomplaint petition made by an appropriate authority in terms of Section22 of the TOHO Act. Consequently, sub-section (2) to Section 167 ofthe Code would not be attracted as the CBI could not have submitted apolice report in terms of sub-section (2) to Section 173 of the Code.Jeewan Kumar Raut (supra) was, thus, dealing with a contention and A

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Aissue entirely different from the one raised in the present case. It isundisputed that decisions of the courts cannot be blindly applied indisjunction of the factual circumstances and issues of each case. Thecourt decisions expound on the law as applicable to the specificcircumstances of each case and such exposition may not therefore benecessarily applicable to another case given its own peculiarities.BTherefore, the contention predicated on the ratio in Jeewan KumarRaut (supra) holds no merit.

11. We would again advert to the decision in Sanjay (supra) whichhad overruled the decision of the Calcutta High Court in Seema Sarkarv. State[17]wherein the High Court held the proceedings to be invalid andCillegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines RegulationAct and Section 379 of the IPC, observing that the cognizance was onethat cannot be split or divided. The High Court had further observed thatas the complaint was not made in terms of Section 22 of the MinesDRegulation Act, the cognizance was bad and contrary to law. We havealready noted the decision of the Delhi High Court which had directedthat the FIR should not be treated as registered under Section 379 of theIPC but only under Section 21 of the Mines Regulation Act. Thesedecisions of the Calcutta High Court and the Delhi High Court werereversed and set aside by this Court in Sanjay (supra) after referring toESection 26 of the General Clauses Act and the meaning of the expression‘same offence’, to observe that the offence under Section 21 read withSection 4 of the Mines Regulation Act and Section 379 of the IPC aredifferent and distinct. The aforesaid reasoning compels us to reject thecontention of the appellant that the action as impugned in the FIR is aFmere violation of Section 4 which is an offence cognizable only underSection 21 of the Mines Regulation Act and not under any other law.There is no bar on the Court from taking cognizance of the offenceunder Section 379 of the IPC. We would also observe that the violationof Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines RegulationGAct, unlike Section 13(3)(iv) of the TOHO Act.

12. In view of the aforesaid discussion, we would uphold the orderof the High Court refusing to set aside the prosecution and cognizanceof the offence taken by the learned Magistrate under Section 379 of the H17 (1995) 1 Cal LT 95

IPC and Sections 3 and 4 of the Prevention of Damage to Public PropertyAct. We would, however, clarify that prosecution and cognizance underSection 21 read with Section 4 of the Mines Regulation Act will not bevalid and justified in the absence of the authorisation. Further, ourobservations in deciding and answering the legal issue before us shouldnot be treated as findings on the factual allegations made in the complaint.The trial court would independently apply its mind to the factual allegationsand decide the charge in accordance with law. In light of the aforesaidobservations, the appeal is partly allowed, as we have upheld theprosecution and cognizance of the offence under Section 379 of the IPCand Sections 3 and 4 of the Prevention of Damage to Public PropertyAct. There would be no order as to costs.

Ankit Gyan

Appeal partly allowed.

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