Balasubramaniam v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 12.03.2009CoramThe Honourable Mr. JUSTICE K.MOHAN RAMCrl.O.P.No.27333 of 2007and M.P.No.1 of 20071. Balasubramaniam2. Ramasamy3. Vijayakumar4. Annadhurai... Petitioners-Vs.-The State, Rep. by the Inspector of Police,Velur Police Station,Namakkal District(Crime No.395 of 2007)... RespondentPrayer:- Criminal Original Petition filed under Section 482 ofCr.P.C., to call for the records and quash the proceedings in CrimeNo.395 of 2007 on the file of the Inspector of Police, Velur PoliceStation, Namakkal District, pending investigation.For Petitioners :Mr. R.MuraliFor Respondent :Mr. Hasan Mohamed JinnahGovernment Advocate (Crl. Side)O R D E RThe brief facts which are necessary for the disposal of theabove Criminal Original Petition are set out below:-On a complaint lodged by Thiru M.Ravindran, VillageAdministrative Officer, Velur, Paramathivelur Taluk, NamakkalDistrict, the respondent registered a case in Crime No.395 of 2007 onhis file for the offences under Sections 379 IPC read with Sections 4(1) (A) and 21 (1) (C) (ii) of the Mines and Minerals (Developmentand Regulation) Act, 1957 (Act No.67 of 1957) (hereinafter referredto as "the Act") against the petitioners herein. 2. The sum and substance of the allegations in the complaint isthat at 11.00 a.m. on 03.08.2007 the informant found four lorries onVelur to Mohanur Road bearing the following registration numbers,TN40-A-5463, TN28-B-5477, TN37-W-3916 and TN37-H-9944. The lorrieswere being driven by the petitioners herein, the lorries were stoppedand searched and it was found that the lorries were carrying sand andon enquiry it was found that sand was being transported from Sri RamaSamuthram Area and the petitioners were transporting sand more thanthe permitted limit and hence the Village Administrative Officer https://hcservices.ecourts.gov.in/hcservices/ caused weighment of the lorries at Sri Karthic Weigh Bridge, Pothanurand found that all the four lorries were carrying sand over and abovethe permitted quantity and thus they had committed theft of sandbelonging to the Government worth about Rs.3,672/-.3. Being aggrieved by the registration of the case against thepetitioners on the basis of the complaint lodged by the VillageAdministrative Officer the petitioners have filed the above quashpetition seeking to quash the First Information Report on the groundthat as per Section 22 of the Act no Court shall take cognizance ofany offence punishable under the Act or any Rules made thereunderexpect upon complaint in writing made by a person authorised in thatbehalf by the Central Government or the State Government andadmittedly the Village Administrative Officer is not an authorisedperson to lodge the complaint and hence even after completinginvestigation if the respondent files a charge sheet the same cannotbe taken cognizance of by the Court.4. Heard the learned counsel on either side.5. Learned counsel for the petitioner basing reliance on adecision of the Karnataka High Court reported in 1995 CRI. L.J. 3810(K.Srinivas v. State of Karnataka) and another decision of a learnedSingle Judge of this Court reported in (2006) 2 M.L.J. (Crl.) 115(D.Sudharshan v. State) which has followed the said decisionsubmitted that when special enactment has been invoked to deal withthe offences invoking general provisions of Indian Penal Code will bemeaningless since the special enactment will override the generalprovisions of law and specific provisions will override the otherprovisions. In (2006) 2 M.L.J. (Crl.) 115 (referred to supra) Mr.Justice R.Regupathi after referring to the decision of the KarnatakaHigh Court reported in 1995 CRI. L.J. 3816 (referred to supra) has inparagraph 5 observed as under:-"5. I have perused the materials available on record andheard the submissions made by both sides. Admittedly, theVillage Administrative Officer is not an authorised personby the State Government to proceed against the accused forthe offence alleged in the FIR. Under such circumstance,the decision cited by the learned counsel for thepetitioner is squarely applicable to the present case.Merely because, the general provisions of Indian Penal Codeis 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 thatspecial enactment will over-ride the general provisions oflaw and specific provisions will over-ride the otherprovisions. Under such circumstance, I find that this is afit case to quash the proceedings."6. Countering the said submissions the learned GovernmentAdvocate (Crl. Side) submitted that though as provided under Section22 of the Act the complaint in this case had not been filed by theauthorised person, the registration of the First Information Report https://hcservices.ecourts.gov.in/hcservices/ as far as the offences arising out of the violation of the provisionsof the Act alone are concerned can be said to be vitiated but theregistration of the case for the offence under Section 379 IPC on thebasis of the complaint lodged by the Village Administrative Officercannot be said to be either illegal or unsustainable. He submittedthat the same set of facts can constitute offences under twodifferent laws. In this case, according to him, the removal of sandbelonging to the Government over and above the permitted quantity mayamount to violation of Sections 4 (1) (A) and 21 (1) (C) (ii) of theAct and at the same time the same will also amount to commission oftheft of sand belonging to the Government and in such circumstanceson the same set of facts when two different offences under twodifferent enactments have been committed two separate prosecutionsunder the said enactments is not barred. In support of his contentionthe learned Government Advocate (Crl. Side) relied upon theprovisions contained in Section 26 of the General Clauses Act, 1897(10 of 1897) and also a decision of the Apex Court reported in AIR1989 SUPREME COURT 1 (State of Bihar v. Murad Ali Khan).7. I have considered the said submissions made by the learnedcounsel on either side carefully and perused the materials availableon record.8. As pointed out above the learned Government Advocate (Crl.Side) has conceded that the impugned First Information Report oughtnot to have been registered for the alleged violation of Sections 4(1) (A) and 21 (1) (C) (ii) of the act in the absence of a validcomplaint by an authorised person as contemplated under Section 22 ofthe Act. Hence the First Information Report as far as it relates tothe offences under Sections 4 (1) (A) and 21 (1) (C) (ii) of the Actis concerned has to be quashed and accordingly quashed.9. The remaining question to be decided is as to whether therespondent is right in registering the case for the offence underSection 379 IPC on the basis of the allegations contained in theFirst Information Report lodged by the Village Administrative Officerwho is admittedly not the authorised person under Section 22 of theAct.10. To appreciate the contentions put forth by the learnedGovernment Advocate (Crl. Side) it will be useful to refer to theprovisions contained in Section 26 of the General Clauses Act, 1897which reads as follows:-"26. Provision as to offences punishable under two or moreenactments:Where an act or omission constitutes an offence under twoor more enactments, then the offender shall be liable to beprosecuted and punished under either or any of thoseenactments, but shall not be liable to be punished twicefor the same offence."In AIR 1989 SUPREME COURT 1 (referred to supra) the Apex Court hasobserved as under:- https://hcservices.ecourts.gov.in/hcservices/ "8. .... In The State of Bombay v. S.L.Apte, (1961) 3 SCR 107 : (AIR1961 SC 578), the question that fell for consideration wasthat in view of earlier conviction and sentence under Sec.409, IPC a subsequent prosecution for an offence under Sec.105 of Insurance Act, 1935, was barred by Sec. 26 of theGeneral Clauses Act and Art. 20 (2) of the Constitution.This Court observed (at Pp. 581 and 583 of AIR):"To operate as a bar the second prosecution and theconsequential punishment thereunder, must be for 'the sameoffence'. The crucial requirement therefore for attractingthe Article is that the offences are the same i.e., theyshould be identical. If, however, the two offences aredistinct, then notwithstanding that the allegations offacts in the two complaints might be substantially similar,the benefit of the ban cannot be invoked. It is, therefore,necessary to analyse and compare not the allegations in thetwo complaints but the ingredients of the two offences andsee whether their identity is made out ......""..... Though Section 26 in its opening words refer to 'theact or omission constituting an offence under two or moreenactments,' the emphasis is not an the facts alleged inthe two complaints but rather on the ingreidnets whichconstitute the two offences with which a person is charged.This is made clear by the concluding portion of the sectionwhich refers to 'shall not be liable to be punished twicefor the same offence'. If the offences are not the same butare distinct, the ban imposed by this provision also cannotbe invoked ....."The same set of facts, in conceivable cases, can constituteoffences under two different laws. An act or an omissioncan amount to and constitute an offence under the IPC andat the same time constitute an offence under any other law....."11. If the facts of the present case are considered in the lightof the provisions contained in Section 26 of the General Clauses Actand the above decision of the Apex Court it could be seen that thefacts alleged in the First Information Report disclose the commissionof the offences under the Mines and Minerals (Development andRegulation) Act, 1957 as well as the Indian Penal Code and thereforethe offenders are liable to be prosecuted and punished under eitherthe Mines and Minerals (Development and Regulation) Act, 1957 orunder the Indian Penal Code but shall not be liable to be punishedtwice for the same offence. In this case admittedly no complaint hasbeen lodged by the authorised person under the Mines and Minerals(Development and Regulation) Act, 1957 but the only complaint lodgedis by the Village Administrative Officer based on which the presentFirst Information Report has been registered. Therefore this Court isconstrained to hold that in registering the First Information Reportas far as the offence under Section 379 IPC is concerned noillegality has been committed and therefore if ultimately afterinvestigation if a final report is filed against the petitioners https://hcservices.ecourts.gov.in/hcservices/ there cannot be any legal bar for the jurisdictional Magistrate totake cognizance of the final report.12. Neither the Karnataka High Court in 1995 CRI. L.J. 3810(referred to supra) nor the learned Single Judge of this Court in(2006) 2 M.L.J. (Crl.) 115 (referred to supra) had an occasion toconsider the scope of Section 26 of the General Clauses Act but inboth the decisions the learned Judges have quashed the proceedingssolely basing reliance on the bar contained under Section 22 of theMines and Minerals (Development and Regulation) Act, 1957. Therefore,with great respect to them, I am unable to agree with theirdecisions.13. For the aforesaid reasons the Criminal Original Petition ispartly allowed namely the First Information Report in Crime No.395 of2007 on the file of the respondent-the Inspector of Police, VelurPolice Station, Namakkal District, in so far as it relates to theoffences under Sections 4 (1) (A) and 21 (1) (C) (ii) of the Minesand Minerals (Development and Regulation) Act, 1957 is concerned isquashed but so far as it relates to the offence under Section 379 IPCis concerned it is held to be valid and it is open to the respondentto complete the investigation and file the final report in accordancewith law. The connected Miscellaneous Petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.SrkTo1. The Inspector of Police, Velur Police Station, Namakkal 2. The Public Prosecutor, High Court of Madras, Chennai - 104+ 2 CC to M/s.S.kadar Karai,Advocate,SR.7655,7674Crl.O.P.No.27333 of 2007and M.P.No.1 of 2007 RS(CO)EM/16.3.09