Ramanagouda Biradar vs State of Karnataka

K.N. Phaneendra, J.—Though these petitions are posted for orders/admission, since in all these matters, common question of law is involved, with the consent of the learned counsels appearing for the parties, they have been taken-up for hearing on merits and disposed of by this common order.

The State through different Police Stations as noted in the causetitle of the respective petitions, has number of cases against the petitioners for the offences punishable under Sections 3, 42, 43 and 4(A) of the Mineral Concession Rules, 1994 (for short ''MC Rules'') and Mines and Minerals (Development and Regulation) Act, 1957 (for short, ''M.M.D.R. Act'') and also under Section 379 of IPC.

In all the cases, though the factual aspects are different, but the allegations are almost same that the petitioners have been transporting the sand, which is known as minor mineral from different places without any licence or permission from the Government and thereby they have committed the offences noted herein above.

In all the petitions, the question raised is that, Section 22 of the M.M.D.R. Act is a bar and the Magistrate can only take cognizance on the basis of the private complaints by the competent authority as mentioned in the said Act. Section-22 of the said M.M.D.R. Act, 1957 reads thus:--

"Sec. 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." 5. Earlier in large number of cases, this Court was of the opinion that the competent authority has to file a private complaint before the Magistrate in order to take cognizance of the offences punishable under the provisions of M.M.D.R. Act or Rules though the police have registered case under Section 379 of IPC. But, in fact, the offences under the M.M.D.R. Act and Rules are inter alia co-related to each other. This Court on earlier occasions held that the said provision under Section 22 is a bar for the police to independently investigate and file charge sheet. In fact, it is not only in this State it has happened, but in several States, respective High Courts have also expressed the same view. The Hon''ble Apex Court had an occasion to deal with the matter in detail and ultimately has considered the views expressed by different High Courts and also considering the judgments thereunder, the Hon''ble Apex Court has in detail and meticulously considered the powers of the police under Section 154 of Cr.P.C. and also in detail dealing with the provisions under Sections 21 and 22 and 4(1)(A) of the M.M.D.R. Act, ultimately held that the police had got powers to investigate the matter and file charge sheet and Courts can take cognizance on the police report without waiting for a complaint by competent person under Section 22 of M.M.D.R. Act. The Apex Court, in fact has held that, Section 22 of the M.M.D.R. Act is not a complete and absolute bar for taking action by the police for illegal and dishonest theft of minor minerals including sand from the riverbed. It is observed that the Court shall take judicial notice of the fact that, over the years rivers in India have been affected by the alarming rate of unrestricted and unregulated sand mining from riverbeds in India by sand mafias due to weak and corrupt administration, which is damaging the ecosystem of the rivers and safety of the bridges and it would also weaken the riverbed and affect the breeding fish in the riverbed and cause disastrous to natural habitat of many organisms. If this illegal methods of mining are not stopped by the State and the Police Authorities of the State, it would cause serious repercussions as stated above and it not only change the river hydrology but also deplete the ground water levels. Having observed in such a manner, the Court has categorically held with reference to the said provisions of law, as under:--

"Criminal prosecution under IPC and/or Mines and Minerals (Development and Regulation) Act, 1957 (the M.M.D.R. Act) had been instituted against the alleged offenders for mining sand from riverbeds without valid licences and permits under the M.M.D.R. Act. The principal question, which arose for consideration in present appeal was whether police has the power to institute such cases on basis of an FIR and whether Magistrate has the power to take cognizance of such offence upon a police report, without a complaint from the authorised officer under Section 22 of M.M.D.R. Act. And whether, mining of sand from riverbed would constitute an offence under Section 379 IPC for dishonestly stealing public property (sand in riverbed constituting a natural resource), the Government being its trustee.

(Emphasis supplied)

Answering the said questions in the affirmative, the Apex Court has held thus:--

"HELD,- Chapter XII Cr.P.C. (especially Sections 149 to 152) confers very important power and duty upon the police officer to take preventive action in certain cases. A perusal of the aforementioned provisions would show that a police officer on his own authority has the duty to prevent any injury attempted to be commuted to any public property or national assets and to prosecute such person in accordance with law." After discussing the policy and object of the M.M.D.R. Act and MC Rules, and also the history of global environmental protection with reference to UNEP Global Environmental Alert Service Report and also expressing its deep sense of concern towards the natural resources of the country and dissatisfaction about the State and Police Authorities, ultimately came to the following conclusion:--

"There is no complete and absolute bar in the M.M.D.R. Act in prosecuting persons under the IPC where the offences committed by persons are penal and cognizable offence. Section 4(1-A), M.M.D.R. Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the M.M.D.R. Act and Rules thereunder. In other words no person will do mining activity without a valid lease or licence. Section 21 of the M.M.D.R. Act is a penal provision according to which if a person contravenes the provisions of Section 4(1-A) of the M.M.D.R. Act, he shall be prosecuted and punished in the manner and procedure provided in the M.M.D.R. Act. Sub-Section (6) has been inserted in Section 21, M.M.D.R. Act by amendment making the offence cognizable notwithstanding anything contained in the Cr.P.C. Section 22, M.M.D.R. Act puts a restriction on the Court to take cognizance of any offence punishable under the M.M.D.R. Act or any Rule made thereunder except upon a complaint made by a person authorized in this behalf It is very important to note that Section 21 does not begin with a non obstance clause. Instead of the words "notwithstanding anything contained in any law for the time being in force no Court shall take cognizance....", the Section begins with the words "no court shall take cognizance of any offence".

It is well known that a non obstance clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.

The question is whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.

Thus Section 22, M.M.D.R. Act is not a complete and absolute bar for taking action by the police for illegal and dishonestly commuting theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years, rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural 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.

There cannot be any dispute with regard to restrictions imposed under the M.M.D.R. Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the M.M.D.R. Act, the officer empowered and authorized under the M.M.D.R. Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the M.M.D.R. Act, the police officer cannot insist the Magistrate for taking cognizance under the M.M.D.R. Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the M.M.D.R. Act against prosecution of a person on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the M.M.D.R. Act and not for any act or omission which constitutes an offence under the IPC.

However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 IPC. From a close reading of the provisions of the M.M.D.R. Act and the offence defined under Section 378 IPC, 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 M.M.D.R. Act is an offence punishable under Section 21 of the M.M.D.R. 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 M.M.D.R. 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 under the Cr.P.C. and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) Cr.P.C.

In the light of the relevant provisions of the M.M.D.R. Act vis-�-vis the Cr.P.C. an the IPC, it is clear that the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that violation of various provisions of the M.M.D.R. Act. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly."

In view of the above said clear-cut decision, the Apex Court has meticulously in detail dealt with the provisions of the above said enactment including the provisions under Indian Penal Code and succinctly held that the police have got power to register and investigate the cases under M.M.D.R. Act and Rules as well as under Section 379 of IPC and also the offences under the M.M.D.R. Act. Therefore, in case of commission of the offence under Section 378 of IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without waiting for the receipt of the complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the M.M.D.R. Act and the provisions under Sections 21 and 22 of the M.M.D.R. Act are not mandatory in nature, but they can be said to be regulatory in nature. Therefore, by holding as such, the Apex Court has set aside the judgments passed by several High Courts in this regard.

In the above said circumstances, the petitions filed before this Court questioning the M.M.D.R. Act and Rules particularly with reference to Section 22 of the M.M.D.R. Act seeking quashing of the criminal proceedings, does not survive for consideration by this Court.

In view of the above discussion, these petitions deserve to be dismissed. Accordingly, these petitions stand dismissed.