TaxTMI 
TaxTMI 
2020 (12) TMI 1237
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....hereinafter referred to as the '2006 Rules'). 3. The facts in nutshell are as under: On a surprise inspection, the respective Mining Inspectors checked the tractor/trolleys of the private Appellants along with the minor mineral (sand/storage/yellow soil etc.) loaded in them. They handed over the tractor/trolleys to the concerned police stations to keep them in safe custody. Finding the private Appellants indulged in illegal mining/transportation of minor mineral, the mining Inspectors prepared their respective cases Under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter referred to as the '1996 Rules') and submitted them before the Mining Officers with a proposal of compounding the same for the amount calculated according to the concerned 1996 Rules. The concerned Mining Officers submitted those cases before the Collector, who approved the proposal. The violators accepted the decision and deposited the amounts determined by the Collector for compounding the cases. Their tractor/trolleys along with the minerals, which were illegally excavated/transported, were released. 3.1. That after some time, a news was published in a daily news....
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....2, Code of Criminal Procedure. It was mainly contended on behalf of the private Appellants and other violators that in view of Bar Under Section 22 of the MMDR Act, the order passed by the learned Magistrate directing to register the FIRs is unsustainable and deserves to the quashed and set aside. It was also contended on behalf of the private Appellants and other violators that once there was compounding of offence in exercise of powers Under Rule 53 of the 1996 Rules and the violators paid the amount determined by permitting them to compound the offence, thereafter the Magistrate was not justified in directing to initiate fresh proceedings which would be hit by the principle of "double jeopardy". That by the impugned common judgment and order, the High Court has dismissed all the aforesaid applications relying upon the decision of this Court in the case of Sanjay (supra). 4. Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the High Court in refusing to quash the FIRs filed against the private Appellants and other violators, the original Petitioners - violators have preferred the present appeals. Though, before the High Court, the learned....
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....ompounded by the competent authority. 5.1. Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to allow the present appeals and quash the criminal proceedings initiated against the private Appellants for the offences Under Sections 379 and 414, Indian Penal Code and Sections 4/21 of the MMDR Act. 6 . Learned Counsel appearing on behalf of the State of Madhya Pradesh has supported the private Appellants - violators and has submitted that the order passed by the learned Magistrate directing to lodge/register FIRs for the offences Under Sections 379 and 414, Indian Penal Code and Sections 4/21 of the MMDR Act is unsustainable, though and as observed hereinabove, the learned Public Prosecutor appearing on behalf of the State of Madhya Pradesh supported the order passed by the learned Magistrate before the High Court. One of the grounds stated in the memo of appeal is that the order passed by the learned Magistrate, confirmed by the High Court, impinges/affects the powers of the authorised person to compound the offence Under Rule 18 of the 2006 Rules. 7 . Before submissions made on behalf of the respective parties are considered....
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....lso cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood Regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion. 34. The Report also dealt with the astonishing impact of sand mining on the economy. It states that tourism may be affected through beach erosion. Fishing, both traditional and commercial, can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or ch....
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....ble manner, are engaged in full-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 bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining....
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.... protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc. 38. In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388, this Court while considering the doctrine of public trust which extends to natural resources observed as under: (SCC pp. 407-08 & 413, paras 24-25 & 34) 24. The ancient Roman Empire developed a legal theory known as the 'Doctrine of the Public Trust'. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about 'the environment' bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullius) or by everyone in common (res communis). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. ....
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....e, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses. ** * 34. Our legal system--based on English common law--includes the Public Trust Doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. 39. In Intellectuals Forum v. State of A.P. (2006) 3 SCC 549, this Court while balancing the conservation of natural resources vis-à-vis urban development observed as under: (SCC p. 572, para 67) 67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of 'State responsibility' for pollution emanating within one&#....
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....habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 7.3. That thereafter, after considering the relevant provisions of the MMDR Act, this Court opined that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence. Ultimately, this Court concluded in paragraphs 72 and 73 as under: 72. From a close reading of the provisions of the MMDR Act and the offence defined Under Section 378 Indian Penal Code, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable Under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, me....
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....22 of the MMDR Act would be attracted. The further question which is required to be considered is, when and at what stage the Magistrate can be said to have taken cognizance attracting the bar Under Section 22 of the MMDR Act? 8.1. While considering the aforesaid issue, Section 22 of the MMDR Act is required to be referred to, which is as under: 22. Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. Reading the aforesaid provision would show that cognizance of any offence punishable under the MMDR Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorised in this behalf by the Central Government or the State Government. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance. 9 . Let us now consider the question in the light of judicial pronouncements on the point. 9.1. In the case of Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121, after cons....
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....izance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no Rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 21. Chapter XIV (Sections 190-199) of the Code deals with "Conditions requisite for initiation of proceedings". Section 190 empowers a Magistrate to ta....
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....dance of the Accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the Accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the Accused Under Sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued Under Sub-section (1) shall be 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 until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this Section shall be deemed to affect the provisions of Section 87. 24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings" covered by Chapter XVI. For commencement of proceedings,....
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....d was arrested on 27-10-1947. 28. On 25-3-1949, the Accused was produced before the Magistrate to answer the charge-sheet submitted by the prosecution. According to the Accused, on 22-10-1947, when warrant for his arrest was issued by the Magistrate, the Magistrate was said to have taken cognizance of offence and since no sanction of the Government had been obtained before that date, initiation of proceedings against him was unlawful. The question before the Court was as to when cognizance of the offence could be said to have been taken by the Magistrate Under Section 190 of the Code. Considering the circumstances under which "cognizance of offence" Under Sub-section (1) of Section 190 of the Code can be taken by a Magistrate and referring to Abani Kumar Banerjee (supra), the Court, speaking through Kania, C.J. stated: (Chari case (supra) AIR p. 208, para 3) 3. It is clear from the wording of the Section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined ....
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....aram 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, para 7) 7 . ... We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, Under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. 32. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753, the Court stated that it is well settled that before a Magistrate can be said....
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.... the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding Under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purp....
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.... unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence Under Section 190(1)(b) of the Code and issue process straightaway to the Accused. However, Section 190(1)(b) of the Code does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against the Accused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer. 12. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report Under Section 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or n....
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....suing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. 1 6 . From the aforenoted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. 17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, ....
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.... Code of Criminal Procedure and observed: (SCC p. 696, para 43) 43. ... In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of 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 Sections 190 and 196(1-A) Code of Criminal Procedure and observed: (SCC p. 732, para 8) 8 . ... There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Code of Criminal Procedure. If a criminal case is regist....
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....exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice 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 from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is Accused of an offence alleged to have been committed during discharge of his official duty. 14. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, this Court has observed as follows: 1 3 . It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the ....
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....d that as per Section 21 of 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 Under Section 156(3) Code of Criminal Procedure, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with 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 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. 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 cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Therefore, when an order is passed by the Magistrate for investigation 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 order is made the police is obliged to investi....
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.... of Section 23A shall not be applicable for the offences under the Indian Penal Code, such as, Section 379 and 414 Indian Penal Code. In the present case, as observed and held hereinabove, the offences under the MMDR Act or any Rule made thereunder and the offences under the Indian Penal Code are different and distinct offences. Therefore, as in the present case, the mining inspectors prepared the cases Under Rule 53 of the 1996 Rules and submitted them before the mining officers with the proposals of compounding the same for the amount calculated according to the concerned Rules and the Collector approved the said proposal and thereafter the private Appellants-violators accepted the decision and deposited the amount of penalty determined by the Collector for compounding the cases in view of Subsection 2 of Section 23A of the MMDR Act and the 1996 Rules and even the 2006 Rules are framed in exercise of the powers Under Section 15 of the MMDR Act, criminal complaints/proceedings for the offences Under Sections 4/21 of the MMDR Act are not permissible and are not required to be proceeded further in view of the bar contained in Sub-section 2 of Section 23A of the MMDR Act. At the same....
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....roperty and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States. 12. Now so far as the appeal preferred by the State on the premise that the order passed by the learned Magistrate, confirmed by the High Court, affects the powers of the authorised person to compound the offence, in exercise of powers Under Rule 53 of the 1996 Rules and Rule 18 of the 2006 Rules is concerned, the same is absolutely misconceived. By the order passed by the learned Magistrate, confirmed by the High Court, by no stretch of imagination, it can be said that directing to file the first information report/crime case for the offences under the Indian Penal Code and even for the offences under the MMDR Act and the Rules made thereunder, it affects ....
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.... In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate. v) in a case where the violator is permitted to compound the offences on payment of penalty as per Sub-section 1 of Section 23A, considering Subsection 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any Rule made thereunder so compounded. However, the bar Under Sub-section 2 of Section 23A shall not affect any proceedings for the offences under the Indian Penal....