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Bar u/s 23A(2) of the MMDR not applicable to offences under IPC: SC while quashing a FIR

However, the bar under sub­section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further. (Para 13(v))

Jayant Etc. v. The State of Madhya Pradesh

Criminal Appeal Nos.824-825 of 2020 (Arising from SLP(Criminal) Nos.26402641/2020) with Criminal Appeal No.826 of 2020 (Arising from SLP(Criminal) No.4549/2020)

Decided on December 03, 2020.

Counsel for appellants: Shri Devadatt Kamat

A division bench of the Hon’ble Supreme Court consisting of Justice Ashok Bhushan and Justice M.R. Shah decided the case at hand.

Respective cases were registered against the private appellants for illegal mining by certain Mining Officers under Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter the ‘1996 Rules’) before the Collector, and the violators paid the amounts determined for compounding the cases. The learned Judicial Magistrate, First Class, Mandsuar took note of the information published in newspapers regarding illegal excavation/transportation of mineral sand and directed to register a criminal case under Section 156(3) Cr.P.C. for initiating investigation and also directed the concerned In-charge/SHOs of the police stations to register the FIR, and later separate FIRs for illegal mining/transportation of sand were lodged against these private appellants under Sections 379 and 414 of IPC, Sections 4/21 of the Mines &Minerals (Development & Regulation) Act, 1957 (hereinafter the ‘MMDR Act’) and under Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 (hereinafter the ‘2006 Rules’). Thereafter, the private appellants and others approached the High Court of Madhya Pradesh to quash the FIRs by submitting applications under Section 482 of Cr.P.C; however, the Court dismissed the aforesaid applications filed. Aggrieved by the impugned judgment, the present appeals have been preferred and the State has preferred a separate SLP challenging the judgment.

The learned Senior Advocate appearing on behalf of the appellants submitted that the FIRs deserve to be quashed as they are hit by Section 22 and 23A of the MMDR Act and Rule 53 of the 1996 Rules. Further, he stated that since there is no written complaint made by the Mining Officer, the MMDR Act does not provide for taking of suo motu cognizance by the Magistrate. He contended that the offences were already permitted to be compounded by the competent authority and hence, no further proceedings can lie as under Section 23A of the MMDR Act.

The learned counsel appearing on behalf of the State submitted that the order passed by the Magistrate is unsustainable. One of the grounds stated in the memo appeal is that the order passed by the Magistrate affects the powers of the authorised person to compound the offence under Rule 18 of the 2006 Rules.

Before considering the submissions of both Counsels, the Court referred to the case of State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, and stated:

Thus, as held by this Court, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a written complaint made by the authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code. (Para 7.4)

The Court crystallized the issue as follows: The further question which is required to be considered is, when and at what stage the Magistrate can be said to have taken cognizance attracting the bar under Section 22 of the MMDR Act?

The Court stated that on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance. It relied on various cases, some of which include Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121, Manohar M. Galani v. Ashok N. Advani, (1999) 8 SCC 737, Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 and Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705.

The Court heard the Counsel for both parties and held that the High Court has not committed any error in not quashing the order passed by the learned Magistrate and not quashing the criminal proceedings for the offences under Sections 379 and 414. The Court stated:

On considering the relevant provisions of the MMDR Act and the Rules made thereunder, it cannot be said that there is a bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173, Cr.P.C. (Para 10)

In this regard, the Court stated:

At this stage, it is required to be noted that as per Section 21 of the MMDR Act, the offences under the MMDR Act are cognizable. As specifically observed by this Court in the case of Anil Kumar (supra), ‘when a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage’. (Para 10.1 and 10.2)

Further, the Court held:

Thus, the bar under subsection 2 of Section 23A shall be applicable with respect to offences under the MMDR Act or any rule made thereunder. However, the bar contained in subsection 2 of Section 23A shall not be applicable for the offences under the IPC, such as, Section 379 and 414 IPC. In the present case, as observed and held hereinabove, the offences under the MMDR Act or any rule made thereunder and the offences under the IPC are different and distinct offences. (Para 11)

The Court stated that the violators cannot be permitted to do away with a penalty alone since the policy and object of MMDR Act and Rules are the result of the increasing awareness of the need to restore the ecological imbalance and to stop damages to nature, and that stringent provisions that will have a deterrent effect need to be brought in place.

The Court stated:

Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States. (Para 11)

The Court observed that the State ought not to have filed the SLP as this Court has held that so far as the offence under IPC is concerned, there shall not be any bar under Section 22 of the MMDR Act.

The Court partly allowed the appeals filed by the appellants, to the extent quashing the proceedings for the offences under the MMDR Act – Sections 4/21 of the MMDR Act only. The appeal preferred by the State of Madhya Pradesh was dismissed.

Jhanavi M



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