After giving our thoughtful consideration in the matter, in
the light of relevant provisions of the Act vis-à-vis the Code of
Criminal Procedure and the Indian Penal Code, we are of the
definite opinion that the ingredients constituting the offence
under the MMDR Act and the ingredients of dishonestly
removing sand and gravel from the river beds 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
Cr.P.C., on receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence without
awaiting the receipt of complaint that may be filed by the
authorized officer for taking cognizance in respect of violation of
various provisions of the MMRD Act. Consequently the contrary
view taken by the different High Courts cannot be sustained in
law and, therefore, overruled.
Consequently, these criminal
appeals are disposed of with a direction to the concerned
Magistrates to proceed accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 499 OF 2011
STATE OF NCT OF DELHI
Versus
SANJAY
Read full judgment here;click here
Dated;September 04, 2014
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 river bed.
67. 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 eco-system of
the rivers and safety of bridges. It also weakens river beds, 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
repercussions as mentioned hereinabove.
cause
serious
It will not only
change the river hydrology but also will deplete the ground
water levels.
68. There cannot be any dispute with regard to restrictions
imposed under the MMDR 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 Act, the officer empowered and authorized 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 authorized
officer. In case of breach and violation of Section 4 and other
provisions of the Act, the police officer cannot insist 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 sought
to be prosecuted for contravention of Section 4 of the Act and
not for any act or omission which constitute an offence under
Indian Penal Code.
69. However, there may be situation where a person without
any lease or licence or any authority enters into river and
extracts sands, gravels and other minerals and remove or
transport those minerals in a clandestine manner with an
intent
to
possession
remove
dishonestly
those
minerals
of the State, is laible to be
from
the
punished for
committing such offence under Sections 378 and 379 of the
Indian Penal Code.
70. From a close reading of the provisions of 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, gravels and other minerals from
the river, which is the property of the State, out of State’s
possession without the consent, constitute an offence of theft.
71. 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 taking cognizance against such
person.
In other words, in a case where there is a theft of
sand and gravels 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) of the Code of Criminal Procedure.
72. After giving our thoughtful consideration in the matter, in
the light of relevant provisions of the Act vis-à-vis the Code of
Criminal Procedure and the Indian Penal Code, we are of the
definite opinion that the ingredients constituting the offence
under the MMDR Act and the ingredients of dishonestly
removing sand and gravel from the river beds 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
Cr.P.C., on receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence without
awaiting the receipt of complaint that may be filed by the
authorized officer for taking cognizance in respect of violation of
various provisions of the MMRD Act. Consequently the contrary
view taken by the different High Courts cannot be sustained in
law and, therefore, overruled.
Consequently, these criminal
appeals are disposed of with a direction to the concerned
Magistrates to proceed accordingly.
..................................J.
[ M.Y. Eqbal ]
..................................J.
[Pinaki Chandra Ghose]
New Delhi
September 04, 2014
Dated;September 04, 2014
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 river bed.
67. 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 eco-system of
the rivers and safety of bridges. It also weakens river beds, 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
repercussions as mentioned hereinabove.
cause
serious
It will not only
change the river hydrology but also will deplete the ground
water levels.
68. There cannot be any dispute with regard to restrictions
imposed under the MMDR 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 Act, the officer empowered and authorized 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 authorized
officer. In case of breach and violation of Section 4 and other
provisions of the Act, the police officer cannot insist 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 sought
to be prosecuted for contravention of Section 4 of the Act and
not for any act or omission which constitute an offence under
Indian Penal Code.
69. However, there may be situation where a person without
any lease or licence or any authority enters into river and
extracts sands, gravels and other minerals and remove or
transport those minerals in a clandestine manner with an
intent
to
possession
remove
dishonestly
those
minerals
of the State, is laible to be
from
the
punished for
committing such offence under Sections 378 and 379 of the
Indian Penal Code.
70. From a close reading of the provisions of 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, gravels and other minerals from
the river, which is the property of the State, out of State’s
possession without the consent, constitute an offence of theft.
71. 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 taking cognizance against such
person.
In other words, in a case where there is a theft of
sand and gravels 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) of the Code of Criminal Procedure.
72. After giving our thoughtful consideration in the matter, in
the light of relevant provisions of the Act vis-à-vis the Code of
Criminal Procedure and the Indian Penal Code, we are of the
definite opinion that the ingredients constituting the offence
under the MMDR Act and the ingredients of dishonestly
removing sand and gravel from the river beds 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
Cr.P.C., on receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence without
awaiting the receipt of complaint that may be filed by the
authorized officer for taking cognizance in respect of violation of
various provisions of the MMRD Act. Consequently the contrary
view taken by the different High Courts cannot be sustained in
law and, therefore, overruled.
Consequently, these criminal
appeals are disposed of with a direction to the concerned
Magistrates to proceed accordingly.
..................................J.
[ M.Y. Eqbal ]
..................................J.
[Pinaki Chandra Ghose]
New Delhi
September 04, 2014
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