2020 (12) TMI 1237
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....ules'). 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 newspaper - Bhaskar on 8.9.2019 with respect to illegal e....
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.... 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 Public Prosecutor appearing on behalf of the State of Madh....
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.... 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, the decision of this Court in the case of Sanjay (supra) dealing with the provisions of the MMD....
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....rease 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 channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering ....
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....gradation 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 of bridges and other structures. Continued extraction of sand from riverbeds may also cause the entire stream-bed to degrade to the depth of....
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.... 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. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan--proponent of ....
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.... * 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's own territories (Corfu Channel case14). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of thi....
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....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, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power u....
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.... 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 considering a five Judge Bench judgment of this Court 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 our criminal jurisprudence. We may refer to the view taken by a five Judge benc....
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....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 take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso: 190. Cognizance of offences by Magistrates --(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf Under Sub-section (2), may ....
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....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, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI. 25. Let us now conside....
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....s 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 in Code of Criminal Procedure 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 their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the....
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....losing 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 to have taken cognizance of an offence Under Section 190(1)(a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding Under Section 200 and the provisions following that section. Where, however, he applies his mind only for ordering an investigation Under Section 156(3) or issues a warrant for arrest of the Accused, he cannot be said to have taken cognizance of the offence. 3 3 . In Darshan Singh Ram Kishan v. Stat....
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....end 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 purpose of investigation, or ordering investigation by the police Under Section 156(3), he cannot be said 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 as under: 9. Before examining the rival contentions, we may briefly refer to some of the relevant provisions in the Code. Chapter XIV of the Code, containing Sections 190 to 199 deals with the statutory conditions requisite ....
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.... 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 not. 13. The next incidental question is as to what is meant by the expression "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190 of the Code? 14. The expression "cognizance" is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B. AIR 1963 SC 765 (AIR p. 770, para 19) 19. ... The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means-- become aware of and when used with reference to a court or Judge, to take notice o....
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.... 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, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. 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: 3 4 . The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the Section nor the judicial precedents relied upon by him. Though, the term "cognizance" has not been defined....
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....s 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 registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) Code of Criminal Procedure and no illegality of any kind would be committed. 9.6. In the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705, it is observed and held in paragraphs 12 to 15 as under: 1 2 . We will now examine whether the order directing investigation Under Section 156(3) Code of Criminal Procedure would amount to taking cognizance of the offence, since a contention was raised that the expressi....
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....as 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 material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. The meaning of the said expression was also considered by this Court in Subramanian Swamy case (2012) 3 SCC 64. 1 5 . The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. 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. When a Special Judge takes cognizance of the offence on a co....
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....is 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 investigate the case and submit a report Under Section 173(2) of the Code. That thereafter the investigating officer is required to send report to the authorised officer and thereafter as envisaged Under Section 22 of the MMDR Act the authorised officer as mentioned in Section 22 of the MMDR Act may file the complaint before the learned Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the learned Magistrate would arise. 11. Now so far as the submission on behalf of the private Appellants-violators that in view of the fact that violators were permitted to compound the violation in exercise of powers Under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violato....
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.... 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 time, as observed hereinabove, the criminal complaints/proceedings for the offences under the Indian Penal Code - Sections 379/414 Indian Penal Code which are held to be distinct and different can be proceeded further, subject to the observations made hereinabove. However, our above conclusions are considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the Rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view....
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....r 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 any of the powers of the authorised person to compound the offence. In fact, in view of the decision of this Court in the case of Sanjay (supra), in which this Court has specifically observed and held that so far as the offence under the Indian Penal Code is concerned, there shall not be any bar Under Section 22 of the MMDR Act and when before the High Court the State supported the order passed by the learned Magistrate and rightly so and when the impugned judgment and order 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. 13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-à-vis ....