G H KANWAR PAL SINGH versus THE STATE OF UTTAR PRADESH AND ANOTHER
[2019] 18 S.C.R. 1158, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
A
B
C
D
E
F
G
H
1158
SUPREME COURT REPORTS
[2019] 18 S.C.R.
KANWAR PAL SINGH
v.
THE STATE OF UTTAR PRADESH AND ANOTHER
(Criminal Appeal No. 1920 of 2019 )
DECEMBER 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 Pradesh
Minor Mineral (Concession) Rules, 1963 – rr.3, 7 and 57 –
Prevention of Damage to Public Property Act, 1984 – ss.3 and 4 –
The appellant was granted rights to excavate sand vide mining lease
over a plot – It was alleged that the appellant was mining outside
the permitted area and had illegally excavated a pit – Consequent
to which, FIR was registered u/s.379 IPC, rr. 3, 57 and 7 of the
Rules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of the Act,
1984 – The Magistrate took cognizance and summoned appellant
for trial – Petition filed by the appellant u/s. 482 CrPC before the
High Court to quash criminal proceedings was dismissed – On appeal
before the Supreme Court, the appellant contended that he was
wrongly charge-sheeted by the police for the offences, as at the
best there was violation of s.4 which was punishable u/s. 21 of the
Act, 1957 – It was further contended that the Act, 1957 is a special
statute, the prosecution for an offence u/s. 379 IPC was not
maintainable – Held: In the State (NCT of Delhi) v. Sanjay, it was
observed that considering the principles of interpretation and
wordings used in s.22 of the Act, 1957, the provision is
not a complete
and absolute bar for taking action by the police for illegal and
dishonestly committing theft of minerals including sand from the
riverbed – Further, the said judgment specifically referred to s.26
of 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 offence
punishable u/s.379 of IPC – Thus, they are two ‘different’ and not
the ‘same offence’ – Therefore, contentions of the appellant were
rejected – There was no bar on the Court from taking cognizance
of offence u/s.379 IPC – And violation of s.4 of the Act, 1957,
being a cognizable offence, the police could have investigated the
same – However, it was clarified that prosecution and cognizance
[2019] 18 S.C.R. 1158
1158
A
B
C
D
E
F
G
H
1159
u/s. 21 r/w. s.4 of the Act, 1957 will not be valid and justified in
absence of authorisation – In view thereof, the order of the High
Court refusing to set aside the prosecution and cognizance of the
offence u/s.379 of the IPC and ss.3 & 4 of the Prevention of Damage
to Public Property Act was upheld – General Clauses Act – s.26.
Jeewan Kumar Raut and Another v. Central Bureau of
Investigation – distinguished – The State Police filed the charge-
sheet/complaint against the appellant u/s.379 IPC, rr. 3, 57 and 7
of the Rules 1963, ss. 4, 21 of the Act, 1957 and ss.3 and 4 of the
Act, 1984 – Appellant contended that the State police was not
authorised and therefore, could not have filed the charge-sheet/
complaint and strongly placed reliance on the Jeewan Kumar Raut
case – Held: In Jeewan Kumar Raut case reference was made to
cl.(iv) of Sub-section (3) to s.13 of the Transplantation of Human
Organs Act, 1994 which states that the appropriate authority shall
investigate any complaint of breach of any of the provisions of the
said Act or any rules made thereunder and take appropriate action
– However, there is no similar provision under the Mines Regulation
Act, 1957 – The issue raised in the Jeewan Kumar Raut case was
entirely different from the one raised in the present case – No merit
in the contention of the appellant – The violation of s.4 of the Act,
1957 being a cognizable offence, the police could have investigated
the same, there being no bar
under the Act, 1957 – Mines and
Minerals (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
HELD: 1. In the written submissions the appellant has relied
upon Belsund Sugar Company Limited v. State of Bihar, Sharat
Babu Digumarti v. Government of NCT of Delhi and Suresh Nanda
v. Central Bureau of Investigation to contend that where there is
a special act dealing with a special subject, resort cannot be taken
to a general act.  The said submission has no force in view of the
ratio in State (NCT of Delhi) v. Sanjay  which specifically refers to
Section 26 of the General Clauses Act and states that the offence
under Section 4 read with Section 21 of the Mines and Minerals
(Development and Regulation) Act, 1957 is different from the
offence punishable under Section 379 of the IPC. Thus, they are
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER
A
B
C
D
E
F
G
H
1160
SUPREME COURT REPORTS
[2019] 18 S.C.R.
two ‘different’ and not the ‘same offence’. It would be relevant to
state here that the Delhi High Court in its decision reported as
Sanjay v. State, which was impugned in State (NCT of Delhi) v.
Sanjay, had accepted an identical argument to hold that once an
offence is punishable under Section 21 of the Mines Regulation
Act, the offence would not be punishable under Section 379 of
the IPC. This reasoning was rejected by this Court and the
judgment of the Delhi High Court was reversed. The contention
relying on the same reasoning before this Court, therefore, must
be rejected. [Para 7][1170-C-E]
2. In Jeewan Kumar Raut and Another v. Central Bureau of
Investigation case on which considerable reliance was placed by
the appellant at the time of the hearing. The said judgment was
distinguished in Institute of Chartered Accountants of India v. Vimal
Kumar Surana by observing that the provisions of the
Transplantation of Human Organs Act, 1994 (TOHO Act) were
different and were not similar to the provisions of sub-section 2
to Section 24-A, 25 and 26 of the Chartered Accountants Act as
the TOHO Act is hedged with a non-obstante clause. This Court
would like to further elucidate and explain that in Jeewan Kumar
Raut this Court was examining the right of the appellant therein
to claim statutory bail in terms of sub-section (2) to Section 167
of the Code on the ground that the Central Bureau of
Investigation (CBI) had
failed to file the charge-sheet within 90
days from the date of arrest. Relying on Section 22 of the TOHO
Act, which mandates filing of a complaint by a person duly
authorised by a competent authority, it was observed that the
TOHO Act is a special law which deals with the subjects
mentioned therein, viz., offences relating to the removal of human
organs, etc.  Ordinarily, any person can set the criminal law into
motion but the legislature keeping in view the sensitivity and
importance of the subject had provided that the violations under
the TOHO Act would be dealt with by the authorities specified
therein. Thereafter, reference was made to Section 4 of the Code,
to hold that the TOHO Act being a special Act, the matters
relating to offences covered thereunder would be governed by
the provisions of said Act, which would prevail over the provisions
of the Code.  Reference was made to clause (iv) of sub-section
(3) to Section 13 of the TOHO Act which states that the
A
B
C
D
E
F
G
H
1161
appropriate authority shall investigate any complaint of breach of
any of the provisions of the said Act or any rules made thereunder
and take appropriate action. There is no similar provision under
the Mines Regulation Act, 1957. [Para 9][1170-G-H; 1171-A-E]
3. The Jeewan Kumar Raut was dealing with a contention
and issue entirely different from the one raised in the present
case. It is undisputed that decisions of the courts cannot be blindly
applied in disjunction of the factual circumstances and issues of
each case. The court decisions expound on the law as applicable
to the specific circumstances of each case and such exposition
may not therefore be necessarily applicable to another case given
its own peculiarities. Therefore, the contention predicated on
the 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 Sarkar
v. State wherein the High Court held the proceedings to be invalid
and illegal as the Magistrate had taken cognizance on the basis
of a charge-sheet submitted by the police under Section 21(2) of
the Mines Regulation Act and Section 379 of the IPC, observing
that the cognizance was one that cannot be split or divided. The
High Court had further observed that as the complaint was not
made in terms of Section 22 of the Mines Regulation Act, the
cognizance was bad and contrary to law.  This Court has already
noted the decision of the Delhi High Court which had directed
that the FIR should not be treated as registered under Section
379 of the IPC but only under Section 21 of the Mines Regulation
Act. These decisions of the Calcutta High Court and the Delhi
High Court were reversed and set aside by this Court in State
(NCT of Delhi) v. Sanjay after referring to Section 26 of the
General Clauses Act and the meaning of the expression ‘same
offence’, to observe that the offence under Section 21 read with
Section 4 of the Mines Regulation Act and Section 379 of the
IPC are different and distinct. The aforesaid reasoning compels
to reject the contention of the appellant that the action as
impugned in the FIR is a mere violation of Section 4 which is an
offence cognizable only under Section 21 of the Mines Regulation
Act and not under any other law. There is no bar on the Court
from taking cognizance of the offence under Section 379 of the
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER
A
B
C
D
E
F
G
H
1162
SUPREME COURT REPORTS
[2019] 18 S.C.R.
IPC. This Court would also observe that the violation of Section
4 being a cognizable offence, the police could have always
investigated the same, there being no bar under the Mines
Regulation Act, unlike Section 13(3)(iv) of the TOHO Act. [Para
11][1172-C-G]
5.  In view of the aforesaid discussion, this Court would
uphold the order of the High Court refusing to set aside the
prosecution and cognizance of the offence taken by the Magistrate
under Section 379 of the IPC and Sections 3 and 4 of the
Prevention of Damage to Public Property Act. However, it is
clarified that prosecution and cognizance under Section 21 read
with Section 4 of the Mines Regulation Act will not be valid and
justified 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.
Jeewan Kumar Raut and Another v. Central Bureau of
Investigation (2009) 7 SCC 526 : [2009] 10 SCR 272
– distinguished.
H. N. Rishbud v. State of Delhi AIR 1955 SC 196 :
[1955] SCR 1150; Directorate of Enforcement v.
Deepak Mahajan (1994) 3 SCC 440 : [1994] 1 SCR
445; Belsund Sugar Company Limited v. State of Bihar
(1999) 9 SCC 620 : [1999] 1 Suppl. SCR 146; Sharat
Babu Digumarti v. Government of NCT of Delhi (2017)
2 SCC 18 : [2016] 8 SCR 1015; Suresh Nanda v.
Central Bureau of Investigation (2008) 3 SCC 674 :
[2008] 1 SCR 1212; Maqbool Hussain v. State of
Bombay AIR 1953 SC 325 :
[1953] SCR 730; Om
Parkash Gupta v. State of U.P. AIR 1957 SC 458 :
[1957] SCR 423; State of Madhya Pradesh v.
Veereshwar Rao Agnihotri AIR 1957 SC 592 : 1957
SCR  868; T. S. Baliah v. ITO AIR 1969 SC 701 : [1969]
3 SCR  65; Collector of Customs v. Vasantraj Bhagwanji
Bhatia (1988) 3 SCC 467 : [1988] 3 SCR 450; State of
Bihar v. Murad Ali Khan (1988) 4 SCC 655 : [1988] 3
Suppl. SCR 455 Avtar Singh v. State of Punjab AIR
1965 SC 666 : [1965] 1 SCR 103; Institute of Chartered
A
B
C
D
E
F
G
H
1163
Accountants of India v. Vimal Kumar Surana (2011) 1
SCC 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.
Case Law Reference
[2009] 10 SCR 272
distinguished
Para 4
[1999] 1 Suppl. SCR 146
referred to
Para 4
[2016] 8 SCR 1015
referred to
Para 4
[2008] 1 SCR 1212
referred to
Para 4
[2014] 9 SCR 1063
relied on
Para 4
[1955] SCR 1150
referred to
Para 5
[1994] 1 SCR 445
referred to
Para 5
[1953] SCR 730
referred to
Para 6
[1957] SCR 423
referred to
Para 6
[1957] SCR 868
referred to
Para 6
[1969] 3 SCR 65
referred to
Para 6
[1988] 3 SCR 450
referred to
Para 6
[1988] 3 Suppl. SCR 455
referred to
Para 6
[1965] 1 SCR 103
referred to
Para 6
[2010] 14 SCR 248
referred to
Para 6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1920 of 2019.
From the Judgment and Order dated  22.07.2019 of the High
Court of Judicature at Allahabad in Criminal Misc. Application No. 28020
of 2019.
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 Kumar
Sinha,  Advs. for the Respondents.
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER
A
B
C
D
E
F
G
H
1164
SUPREME COURT REPORTS
[2019] 18 S.C.R.
 The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. Leave granted.
2. Kanwar Pal Singh, the appellant, impugns the order dated 22nd
July 2019 whereby the High Court of Judicature at Allahabad has
dismissed his petition under Section 482 of the Code of Criminal
Procedure, 1973 (‘Code’ for short) for quashing criminal prosecution
under Section 379 of the Indian Penal Code, 1860 (‘IPC’ for short),
Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession)
Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development
and Regulation) Act, 1957 (‘Mines Regulation Act’ for short), and Sections
3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising
out of Crime Case No. 289 of 2018, Police Station Vindyachal, District
Mirzapur, Uttar Pradesh. The appellant had also challenged, without
success before the High Court, the order dated 8th February 2019 passed
by the Chief Judicial Magistrate taking cognizance and summoning the
appellant for trial.
3. In brief, the facts of the case are that on the basis of a complaint
filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur,
FIR No. 0289 dated 15th November 2018 was registered at Police Station,
Vindyachal, inter alia recording that on 2nd November 2018, during
inspection of the mining site in Village Nandni, Tehsil Sadar, District
Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a
report vide
letter dated 12th November 2018 was submitted to the Sub-
Divisional Magistrate, Sadar. The appellant is a Director of M/s. Kanwar
Enterprises Pvt. Ltd., which was granted rights to excavate sand vide
mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5
measuring 12.35 acre in Village Nandni. However, it is alleged that the
appellant was mining sand outside the permitted area in Village Babhni
numbered as 534/2 where he had illegally excavated a pit 50 feet long,
50 feet wide and 2 meter deep. Consequently, the District Magistrate
had ordered for immediate registration of the FIR under the aforesaid
provisions.
4. Though a number of contentions were raised before the High
Court, the learned senior counsel for the appellant has during the course
of arguments before us restricted his submissions to the violation of
A
B
C
D
E
F
G
H
1165
Section 22 of the Mines Regulation Act and the legal effect thereof.
Referring to the contents of the FIR, it is submitted that the appellant
has been wrongly charge-sheeted by the police for the offences, as at
the best there was violation of Section 4, which is punishable under
Section 21 of the Mines Regulation Act. It is highlighted that M/s. Kanwar
Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section
22 no court can take cognizance of the offences under the Mines
Regulation Act, except on a complaint in writing by a person authorised
by the Central or State Government. The State police not being
authorised, could not have filed the charge-sheet/complaint. The
contention predicated on Section 22 of the Mines Regulation Act is made
by relying upon the judgment of this Court in Jeewan Kumar Raut and
Another v. Central Bureau of Investigation1. In the written submissions
filed by the appellant, a relatively new plea and contention has been
raised by relying upon the judgments of this Court in Belsund Sugar
Company Limited v. State of Bihar,2 Sharat Babu Digumarti v.
Government of NCT of Delhi3 and Suresh Nanda v. Central Bureau
of Investigation4 to urge that the Mines Regulation Act being a special
statute, prosecution for an offence under Section 379 of the IPC would
not 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 offence
against illegal sand
mining in Sanjay (supra) was registered suo moto
due to non-production of any document to establish mining rights and
therefore, the ratio in that case would apply only to cases of illegal mining
where the mining lease had already been revoked or there was no
subsisting mining lease.
5. We find the submission of the appellant to be untenable. In
Sanjay (supra), a Division Bench of this Court had decided appeals
preferred against the conflicting judgments of the Delhi High Court,
Gujarat High Court, Kerala High Court, Calcutta High Court, Madras
High Court and Jharkhand High Court on the question whether a person
can be prosecuted for the offences under Sections 379/114 and other
provisions of the IPC on the allegations of illegal mining in view of Section
22 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
5 (2014) 9 SCC 772
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER [SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
1166
SUPREME COURT REPORTS
[2019] 18 S.C.R.
“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.”
After adverting to the provisions of the Code, namely, Sections
2(c), 2(d) and 2(h) which define ‘cognizable offence’, ‘complaint’ and
‘investigation’ respectively, this Court had referred to Section 4 of the
Code, which reads as under:
“4. Trial of offences under the Indian Penal Code and other
laws.— (1) All offences under the Indian Penal Code (45 of 1860)
shall be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) All 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, trying
or 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 the
Code, subject to any enactment regulating the manner or place of
investigation, trial etc. of such offences. Section 21 of the Mines
Regulation Act, it was observed, states that the offences specified
thereunder are cognizable. Section 41 of the
Code was referred to
elucidate that the police has the power to arrest without warrant in case
of cognizable offences. Sections 149 to 152 of Chapter XI of the Code
that require the police to prevent cognizable offences either by arrest or
otherwise, etc. were referred, to hold that the aforementioned provisions
show that a police officer of his own authority has the duty to prevent
any injury attempted to be committed to any public property or national
assets and also to prosecute such persons in accordance with law.
Accordingly, in Sanjay (supra) it was held that the investigation
of the offences is within the domain of the police and the power of a
police officer to investigate into cognizable offences is not ordinarily
impinged by any fetters albeit the power must be exercised as per the
statutory provisions and for legitimate purposes. The courts would
interfere only when while examining the case they find that the police
A
B
C
D
E
F
G
H
1167
officer in exercise of the investigatory powers has breached the statutory
provisions and put the personal liberty and/or the property of a citizen in
jeopardy by an illegal and improper use of the powers or when the
investigation by the police is not found to be bona fide or when the
investigation is tainted with animosity. While examining the issue, this
Court in Sanjay (supra) took notice of the decision in H.N. Rishbud v.
State of Delhi6 wherein this Court has held that a defect or illegality in
investigation, however serious, has no direct bearing on the competence
or the procedure relating to the taking of the cognizance or trial. The
cardinal principle of law as noted by this Court in Directorate of
Enforcement v. Deepak Mahajan7 is that every law is designed to
further the ends of justice and should not be frustrated on mere
technicalities. The public trust doctrine was cited and applied to
underscore the principle that certain resources like air, sea, water, forests
and minerals are of great importance to the people as a whole and that
the government is enjoined to hold such resources in trust for the benefit
of the general public and to use them for their benefit than to serve
private interests.
6. This Court in Sanjay (supra) has cited several decisions wherein
the challenge to the prosecution on the ground that there can be no
multiplicity of offences under different enactments was resolved and
answered by relying upon Section 26 of the
General Clauses Act, which
we 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 offence
under two or more enactments, then the offender shall be liable to
be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the
same 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 ‘same
offence’ has been interpreted by this Court in numerous decisions viz.,
Maqbool Hussain v. State of Bombay8 with reference to the provisions
of the Sea Customs Act and the Foreign Exchange Regulation Act, 1947;
6  AIR 1955 SC 196
7  (1994) 3 SCC 440
8  AIR 1953 SC 325
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER [SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
1168
SUPREME COURT REPORTS
[2019] 18 S.C.R.
Om Parkash Gupta v. State of U.P.9 and State of Madhya Pradesh v.
Veereshwar Rao Agnihotri10 with reference to Section 409 of the IPC
and Section 5(2) of the Prevention of Corruption Act; T.S. Baliah v.
ITO11 with reference to Section 52 of the Income Tax Act, 1922 and
Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji
Bhatia12, with reference to the provisions of the Customs Act 1962 and
the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad
Ali Khan13 with reference to the provisions of Sections 447, 429 and
379 of the IPC and provisions of the Wildlife (Protection) Act, 1972;
Avtar Singh v. State of Punjab14 with reference to Section 39 of the
Electricity Act, 1910 and the provisions of theft under the IPC; and
Institute of Chartered Accountants of India v. Vimal Kumar Surana15
with reference to the provisions of the Chartered Accountants Act, 1949
and offences under Sections 419, 468, 471 and 472 of the IPC.
Elucidating on the provisions of Section 4 read with Sections 21 and 22
of the Mines Regulation Act and the offence under Section 379 of the
IPC, it was observed in Sanjay (supra):
“69. Considering the principles of interpretation and the wordings
used in Section 22, in our considered opinion, the provision is not a
complete and absolute bar for taking action by the police for illegal
and dishonestly committing 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.
70. There cannot be any dispute with regard to restrictions imposed
under the MMDR Act and remedy provided therein. In any case,
9  AIR 1957 SC 458
10  AIR 1957 SC 592
11  AIR 1969 SC 701
12  (1988) 3 SCC 467
13  (1988) 4 SCC 655
14  AIR 1965 SC 666
15  (2011) 1 SCC 534
A
B
C
D
E
F
G
H
1169
where there is a mining activity by any person in contravention of
the provisions of Section 4 and other sections of the Act, the officer
empowered and authorised under the 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 Act, the police
officer cannot insist the Magistrate for taking cognizance under
the 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 Act against prosecution of a person
except 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 Act and not for any act or omission which constitutes an
offence under the Penal Code.
71. 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 of the Penal Code.
72. From a close reading of the provisions of the MMDR
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 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 under the Code of
Criminal Procedure and submit a report before the Magistrate for
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER [SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
1170
SUPREME COURT REPORTS
[2019] 18 S.C.R.
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 CrPC before a Magistrate having
jurisdiction for the purpose of taking cognizance as provided in
Section 190(1)(d) of the Code of Criminal Procedure.”
      (emphasis supplied)
7. As noticed above, in the written submissions the appellant
has relied upon Belsund Sugar Company Limited (supra), Sharat Babu
Digumarti (supra) and Suresh Nanda (supra) to contend that where
there is a special act dealing with a special subject, resort cannot be
taken to a general act.  The said submission has no force in view of the
ratio in Sanjay (supra) as quoted above which specifically refers to
Section 26 of the General Clauses Act and states that the offence under
Section 4 read with Section 21 of the Mines Regulation Act is different
from the offence punishable under Section 379 of the IPC. Thus, they
are two ‘different’ and not the ‘same offence’. It would be relevant to
state here that the Delhi High Court in its decision reported as Sanjay v.
State16, which was impugned in Sanjay (supra), had accepted an identical
argument to hold that once an offence is punishable under Section 21 of
the Mines Regulation Act, the offence would not be punishable under
Section 379 of the IPC. This reasoning was
rejected by this Court and
the judgment of the Delhi High Court was reversed. The contention
relying on the same reasoning before us, therefore, must be rejected.
8. We would also reject the contention raised by the appellant in
the written submissions that the alleged theft of sand is not punishable
under Section 379 read with Section 378 of the IPC as sand is an
immovable property as per Section 3 (26) of the General Clauses Act.
In the present case, sand had been excavated and was thereupon no
longer an immovable property. The sand on being excavated would lose
its attachment to the earth, ergo, it is a movable property or goods capable
of being stolen. {See Explanation 1 to Section 378 of the IPC and Sanjay
(supra) as quoted above}
9. We would in the end refer to the judgment in Jeewan Kumar
Raut (supra) on which considerable reliance was placed by the appellant
at the time of the hearing. The said judgment was distinguished in Institute
16  (2009) 109 DRJ 594
A
B
C
D
E
F
G
H
1171
of Chartered Accountants (supra) by observing that the provisions of
the Transplantation of Human Organs Act, 1994 (‘TOHO Act’ for short)
were different and were not similar to the provisions of sub-section 2 to
Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO
Act is hedged with a non-obstante clause. We would like to further
elucidate and explain that in Jeewan Kumar Raut (supra) this Court
was examining the right of the appellant therein to claim statutory bail in
terms of sub-section (2) to Section 167 of the Code on the ground that
the Central Bureau of Investigation (‘CBI’ for short) had failed to file
the charge-sheet within 90 days from the date of arrest. Relying on
Section 22 of the TOHO Act, which mandates filing of a complaint by a
person duly authorised by a competent authority, it was observed that
the TOHO Act is a special law which deals with the subjects mentioned
therein, viz., offences relating to the removal of human organs, etc.
Ordinarily, any person can set the criminal law into motion but the
legislature keeping in view the sensitivity and importance of the subject
had provided that the violations under the TOHO Act would be dealt
with by the authorities specified therein. Thereafter, reference was made
to Section 4 of the Code as cited above, to hold that the TOHO Act
being a special Act, the matters relating to offences covered thereunder
would be governed by the provisions of said Act, which would prevail
over the provisions of the Code.  Reference was made to clause (iv) of
sub-section (3) to Section 13 of the TOHO Act which states that the
appropriate authority shall investigate any complaint of breach of any of
the provisions of the said Act or any rules made thereunder and take
appropriate action. There is no similar provision under the Mines
Regulation Act i.e. the Mines and Minerals (Development and Regulation)
Act, 1957.
10. In Jeewan Kumar Raut (supra), it was noted that the CBI
has been designated as an appropriate authority under the provisions of
the TOHO Act and therefore entitled to carry on investigation.  In this
context, it was observed that Section 22 of the TOHO Act prohibits
taking of cognizance except on a complaint made by an appropriate
authority and therefore the police report filed by the CBI was only a
complaint petition made by an appropriate authority in terms of Section
22 of the TOHO Act.  Consequently, sub-section (2) to Section 167 of
the Code would not be attracted as the CBI could not have submitted a
police report in terms of sub-section (2) to Section 173 of the Code.
Jeewan Kumar Raut (supra) was, thus, dealing with a contention and
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER [SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
1172
SUPREME COURT REPORTS
[2019] 18 S.C.R.
issue entirely different from the one raised in the present case. It is
undisputed that decisions of the courts cannot be blindly applied in
disjunction of the factual circumstances and issues of each case. The
court decisions expound on the law as applicable to the specific
circumstances of each case and such exposition may not therefore be
necessarily applicable to another case given its own peculiarities.
Therefore, the contention predicated on the ratio in Jeewan Kumar
Raut (supra) holds no merit.
11. We would again advert to the decision in Sanjay (supra) which
had overruled the decision of the Calcutta High Court in Seema Sarkar
v. State17 wherein the High Court held the proceedings to be invalid and
illegal as the Magistrate had taken cognizance on the basis of a charge-
sheet submitted by the police under Section 21(2) of the Mines Regulation
Act and Section 379 of the IPC, observing that the cognizance was one
that cannot be split or divided. The High Court had further observed that
as the complaint was not made in terms of Section 22 of the Mines
Regulation Act, the cognizance was bad and contrary to law.  We have
already noted the decision of the Delhi High Court which had directed
that the FIR should not be treated as registered under Section 379 of the
IPC but only under Section 21 of the Mines Regulation Act. These
decisions of the Calcutta High Court and the Delhi High Court were
reversed and set
aside by this Court in Sanjay (supra) after referring to
Section 26 of the General Clauses Act and the meaning of the expression
‘same offence’, to observe that the offence under Section 21 read with
Section 4 of the Mines Regulation Act and Section 379 of the IPC are
different and distinct. The aforesaid reasoning compels us to reject the
contention of the appellant that the action as impugned in the FIR is a
mere violation of Section 4 which is an offence cognizable only under
Section 21 of the Mines Regulation Act and not under any other law.
There is no bar on the Court from taking cognizance of the offence
under Section 379 of the IPC. We would also observe that the violation
of Section 4 being a cognizable offence, the police could have always
investigated the same, there being no bar under the Mines Regulation
Act, unlike Section 13(3)(iv) of the TOHO Act.
12. In view of the aforesaid discussion, we would uphold the order
of the High Court refusing to set aside the prosecution and cognizance
of the offence taken by the learned Magistrate under Section 379 of the
17  (1995) 1 Cal LT 95
A
B
C
D
E
F
G
H
1173
IPC and Sections 3 and 4 of the Prevention of Damage to Public Property
Act. We would, however, clarify that prosecution and cognizance under
Section 21 read with Section 4 of the Mines Regulation Act will not be
valid and justified in the absence of the authorisation. Further, our
observations in deciding and answering the legal issue before us should
not be treated as findings on the factual allegations made in the complaint.
The trial court would independently apply its mind to the factual allegations
and decide the charge in accordance with law. In light of the aforesaid
observations, the appeal is partly allowed, as we have upheld the
prosecution and cognizance of the offence under Section 379 of the IPC
and Sections 3 and 4 of the Prevention of Damage to Public Property
Act. There would be no order as to costs.
Ankit Gyan
Appeal partly allowed.
KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH
AND ANOTHER [SANJIV KHANNA, J.]