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There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC: SC


The brief facts of the case are that the appellant is a director of M/S. Kanwar Enterprises Pvt. Ltd, which gave rights to excavate sand by a mining license in Village Nandni. The case against the appellant was that he was mining sand outside the permitted area in Village Babhni. The District Magistrate ordered registration of FIR u/s 379 IPC, Rule 3, 57 & 7 of UP Minor Mineral Rules, S.4&21 of the Mines and Minerals Act, S.3&4 of Prevention of Damages to Public Property Act. The appellant appealed before the HC u/s 482 of Crpc for quashing the criminal prosecution, which was dismissed. Again the accused appealed before the Supreme court under the same contention and the bench comprising of Justice S. Abdul Nazeer and Justice Sanjiv Khanna pronounced the judgment on this matter.

The counsel for the appellant contended that the appellant has been wrongly charge-sheeted by the police. The enterprise had held valid lease for mining. The state cannot file the charge-sheet as it is not authorized to do so. The judgment of Jeewan Kumar Raut and Another v. Central Bureau of Investigation was referred for contending u/s 22 of Mines Regulation Act. 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 were referred to urge the special status of the Mines Regulation Act. Also the leading case State (NCT of Delhi) v. Sanjay was referred to support the argument of the appellant.

The court, after hearing the arguments of the appellant, held that the submissions of the appellant are unarguable.  In Sanjay case it was held that the power to investigate the cognizable offence lies with the police officer. The court would interfere only while the examination of the case by the police is exercised by breach of the statutory powers. S.26 of the General Clauses Act allows prosecution for ‘different offences’ but restricts prosecution and punishment twice for the ‘same offence’. This was discussed under Maqbool Hussain v. State of Bombay. Also Om Parkash Gupta v. State of U.P, State of Madhya Pradesh v. Veereshwar Rao Agnihotri, T.S. Baliah v.ITO, Collector of Customs v. Vasantraj Bhagwanji Bhatia, State of Bihar v. Murad Ali Khan, Avtar Singh v. State of Punjab, Institute of Chartered Accountants of India v. Vimal Kumar Surana were quoted by this court. The observations of Jeewan Kumar Raut case was accepted by this court.

The court held that it reject the contention of the appellant that the action as impugned in the FIR 17 (1995) 1 Cal LT 95 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 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.

From the above observations the court upheld the order of the High Court to set aside the prosecution and cognizance of the offence taken u/s 379 IPC and S.3,4 of Prevention of Damage to Public Property Act. The prosecution u/s 21 read with s.4 of the Mines Regulation Act will not be valid and justified in the absence of authorization. The court thus allowed the appeal partly as it has upheld the prosecution and cognizance of the offence u/s 379 of IPC and S.3&4 of Prevention of Damage to Public Property Act.




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