KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH & Anr.

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 KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH AND ANOTHER 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 A B C D E F G H 1162 SUPREME COURT REPORTS [2019] 18 S.C.R. A B C D E F G H 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 KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH AND ANOTHER 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 [1999] 1 Suppl. SCR 146 referred to [2016] 8 SCR 1015 [2008] 1 SCR 1212 [2014] 9 SCR 1063 [1955] SCR 1150 [1994] 1 SCR 445 [1953] SCR 730 [1957] SCR 423 [1957] SCR 868 [1969] 3 SCR 65 [1988] 3 SCR 450 referred to referred to relied on referred to referred to referred to referred to referred to referred to referred to [1988] 3 Suppl. SCR 455 referred to [1965] 1 SCR 103 [2010] 14 SCR 248 referred to referred to Para 4 Para 4 Para 4 Para 4 Para 4 Para 5 Para 5 Para 6 Para 6 Para 6 Para 6 Para 6 Para 6 Para 6 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. A B C D E F G H 1164 SUPREME COURT REPORTS [2019] 18 S.C.R. A 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 B C D E F G H KANWAR PAL SINGH v. THE STATE OF UTTAR PRADESH AND ANOTHER [SANJIV KHANNA, J.] 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: