TaxTMI 
TaxTMI 
2012 (1) TMI 411
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....No. 226 of 2011 on the file of the Inspector of Police, Mayanur Police Station, Karur District, for alleged offences said to have been committed by him punishable under Sections 143, 353, 506 (i) of IPC r/w 3(1) of T.N.P.P.D.L. Act, 1992 and 4(1), 4(1A), 21(1) of the Mines and Minerals (Development and Regulation) Act and Rules 36-A of the Minor Minerals Concession Rules, 1959. Seeking to quash the said FIR, he has come up with the said original petition. 3. The petitioner, in Crl.O.P. No. 14409 of 2011, is the accused in Crime No. 40 of 2011 on the file of the District Crime Branch, Dindigul for alleged offences said to have been committed by him punishable under Sections 447 and 379 of IPC and 21(1) and 21(4) of the Mines and Minerals (Development and Regulation) Act. Seeking to quash the said FIR, he has come up with the said original petition. 4. In all these petitions the common ground raised is that under Section 22 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as "The Mines and Minerals Act"), since cognizance can be taken by a competent court only on a private complaint to be preferred by a person authorized by the Central/S....
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....stions have been placed before this Division Bench by way of a reference to answer. 8. We have heard learned Counsel appearing for the petitioners and the learned Additional Advocate General for the State and we have also perused the records carefully. 9. In all these cases, the crux of the allegations made against the petitioners in the FIRs is that they committed theft of sand from rivers and river beds belonging to the Government. The said act also constitutes violation of the provisions of The Mines and Minerals Act. The above said act committed by the petitioners, according to the prosecution, not only constitutes an offence punishable under Section 21 of the Mines and Minerals Act, but also constitutes offences punishable under the Indian Penal Code, more particularly, Section 379 of IPC. That is how, in these cases, apart from invoking the provisions of The Mines and Minerals Act, in the FIRs, Section 379 and other provisions of IPC have also been invoked. 10. Before proceeding further into the rival contentions, let us have a look into the relevant provisions of The Mines and Minerals Act. Section 4 of The Mines and Minerals Act reads follows: 4. Prospecti....
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....shed with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both. (2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable (with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees,) or with both, and in the case of a continuing contravention, with an additional fine which may extend to 3(five hundred rupees) for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorized in this behalf by that Government and the State Government or such authorized authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any ....
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....General Clauses of Act, there can be prosecution under both the enactments, however, there shall be punishment only under one enactment. The learned Additional Advocate General would further submit that in the case of illegal sand mining from the Government land, the said act of the accused, not only falls within the ambit of Section 21(1) of The Mines and Minerals Act, but also, falls under Section 379 of IPC. Therefore, according to him, there is nothing illegal on the part of the police in registering the case under the provisions of the Mines and Minerals Act as well as under the provisions of the IPC. He would further submit that the provisions of the Code of Criminal Procedure have not been completely made inapplicable by the provisions of The Mines and Minerals Act. Therefore, according to him, the FIRs in the instant cases are not liable for quashing. 15. Now, let us turn to the judgment of a learned single judge of this Court in D. Sudharshan's case. In that case, for illegal sand mining from Government land, case was registered by the police for offence punishable under Section 4(1-A) r/w 21 of the Mines and Minerals Act, 1957 and Section 379 of IPC. Placing relian....
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....erson by the State Government to proceed against the accused for the offence alleged in the FIR. Under such circumstances, the decision cited by the learned counsel for the petitioner is squarely applicable to the present case. Merely because, the general provisions of Indian Penal Code is included, it cannot be contended that the respondent-police has got the jurisdiction to investigate the offence. It has been repeatedly held by the Supreme Court that special enactment will over-ride the general provisions of law and specific provisions will over-ride the other provisions. Under such circumstances, I find that this case is a fit case to quash the proceedings. Accordingly, the proceedings in Cr. No. 590/2005 pending on the respondent-police is quashed and this petition is ordered. 17. Later on, in Muthu's case (referred to above) the case was registered by the police under Section 379 of IPC for theft of sand from Government land. The FIR was sought to be quashed placing reliance on Section 22 of the Mines and Minerals Act and the ratio laid down in D. Sudharshan's case. Yet another judgment in Balasubramanian and 3 others v. The State 2009 2 L.W. (Cri.) 878 has also be....
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.... also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the Cr.P.C. after investigation by police.... 21. The learned senior counsel, taking us through these judgments, would submit that since the provisions of 21(6) and 22 of the Mines and Minerals Act are in pari materia to Sections 24 and 25 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, as held by the Kerala High Court, for launching a prosecution under the Mines and Minerals Act also, it is absolutely necessary that there has to be a complaint made by an authorized person. And, the court cannot take cognizance of any offence punishable under the Act on a police report falling under Section 173(2) of the Code. 22. The learned senior counsel would, nextly, rely on a judgment of the Hon'ble Supreme Court in Jeewan Kumar Raut v. CBI, (2009) 7 SCC 526. That was a case where the Hon'ble Supreme Court had to deal with the provisions of Transplantation of Human Organs Act, 1994 (hereinafter referred to as "the TOHO Act") Section 22 of the....
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....n extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. 28. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by Parliament. In that view of the matter, the police report being not a complaint and vice versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO. (Emphasis supp....
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....011 (1) SCC 534. That was a case where the accused, who is a graduate in Commerce and has passed examination of Chartered Accountants, but is not a member of the Institute of Chartered Accountants of India (a Statutory body), is alleged to have represented himself before the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act, 1995, on the basis of the power of attorney or as a legal representative and submitted documents, such as, audit report and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit report for monetary consideration. Based on a complaint, a case was registered by the police and charge sheet was also laid against him for offences under Sections 419, 420, 465, 467 and 473 of IPC r/w Sections 24 and 26 of the Chartered Accountants Act, 1949. Sections 24 and 26 of the said Act read as follows:- 24. Penalty for falsely claiming to be a member, etc. - Any person who,- (i) not being a member of the Institute, (a) represents that he is a member of the Institute; or (b) use....
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....ther words, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 25 or sub-section (1) of Sections 24-A, 25 or 26 and such act also amounts to criminal misconduct which is defined as an offence under IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24-A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under IPC. 21. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of Chartered Accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under IPC or any other law. * *....
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.... cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. 23. TOHO being a special Act and the matter relating to dealing with offences hereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorized officer. Nobody else could do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. * * * * * 25. Section 22 of TOHO prohibits taking of cognizance except on a complaint ....
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....rth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2 : A moving effected by the same act which affects the severance may be a theft. Explanation 3 : A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4 : A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5 : The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. 34. Now, the question is whether the ingredients of Section 378 of IPC are similar to that of the ingredients of Section 21 of the Mines and Minerals Act. As we have already noted, Section 21(1) of the Mines and Minerals Act states that whoever contravenes the provisions of sub-sections (1) or (1A) of Section 4 sh....
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....lict between the Mines and Minerals Act and the Code of Criminal Procedure and thus question of one overriding the other does not arise. Therefore, in such cases, where the cases have been registered only under the provisions of IPC, more particularly, under Section 379 of IPC in respect of theft of sand, the question of quashing the FIRs or any subsequent proceedings does not arise at all. 38. In two of the cases before us, the cases have been registered not only under the provisions of IPC, but also under the provisions of the Mines and Minerals Act. Of course, an offence under Section 21 of the Mines and Minerals Act is cognizable and, therefore, the police can register a case and investigate. (see paragraph 28 of the judgment in Jeewan Kumar Raut case). It is too well settled that in an occurrence, apart from the offences which are non cognizable in nature, if, cognizable offences have also been committed, it is absolutely necessary for the police to register a case in respect of the entire occurrence and to investigate the case. This legal position has been made clear by Section 155(4) of the Code. Under Section 190 of the Code, on a police report in respect of offences of ....
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....ffence under Section 494 of IPC. Therefore, it was contended before the Hon'ble Supreme Court that the registration of the case under Sections 498-A as well as 494 of IPC is not sustainable in view of the bar contained in Section 198 of Cr.P.C. but the Hon'ble Supreme Court repelled the said argument placing reliance on Section 155(4) of Cr.P.C. According to the Hon'ble Supreme Court, though an offence under Section 494 is non-cognizable, while investigating a case under Section 498-A of IPC, which is cognizable, it is within the competence of the police to investigate the offence under Section 494 as well and to lay final report comprehensively. Here it needs to be noted, that both the offences, under Section 498-A and 494 of IPC, are governed by the Code of Criminal Procedure and there is no special enactment involved prescribing a special mode of enquiry, investigation or trial. 40. But, in the cases before us, the conflict is between the Mines and Minerals Act and the Code of Criminal Procedure. When there is such a conflict between a special law and a general law, indisputably, the special enactment will prevail over the general law. That is the reason why we ar....
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....inerals Act. On such complaint, the Court may take cognizance. 44. At this juncture, we may also notice that similar questions, as are before us, came up for consideration before a Division Bench of Allahabad High Court in Azad @ Azad Khan Vs. State of U.P. reported in. After having referred to various provisions of the Mines and Minerals Act and the Code of Criminal Procedure, the Division Bench has held as follows: 12...Since the accused person has been charged with offence under Section 379/411 IPC which are cognizable offences, in the circumstances we have no reason to take a view different from the view taken by the Apex Court in state of Orissa (supra) that the police was authorized to investigate the cognizable offence along with non-cognizable offence irrespective of the fact who was the author of the report lodged at the police station regard being had to the provisions of Rule 76 which envisages that the officer referred to in Rule 66 may request for the help of the local police for lawful exercise of his powers under these rules and the local police shall render all possible assistance as may be necessary to enable the officer to exercise the powers under the....