# Devendra Singh Parihar v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Criminal Misc. Writ Petition No. 10492 of 2020
- **Bench:** Manoj Misra, Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-singh-parihar-v-state-of-u-p-ors-45404
- **Pages:** 14

## Headnote

A. U.P. Co-operative Societies Act, 1965
- Section 68, 70, 103, 105, 122-A - U.P.
Primary Agricultural Credit Co-operative
Centralized Service Rules, 1976 - IPC:
Section 405, 409 - General Clauses Act,
1897 - Section 26 - Practice & Procedure
- The allegations made in the impugned
FIR, prima facie, discloses commission
of an offence of criminal breach of trust,
which is cognizable and non-bailable
offence. Hence, merely because the
impugned
FIR
may
not
disclose
commission of an offence punishable
under Section 409 IPC the same is not
liable to be quashed because in any case
it discloses commission of a cognizable
offence. (Para 10)

An FIR is not to be quashed if it
discloses commission of a cognizable
offence unless there is a legal bar with
regard to its institution/lodgment in the
manner in which it has been lodged or
instituted. (Para 8)

There is nothing in the Act, 1965 which
may
expressly
or
impliedly
bar
prosecution of an employee or member
or office bearer of a co-operative society
in the State of Uttar Pradesh for an
offence
punishable
under
IPC,
if
otherwise
the
ingredients
of
that
offence are made out. Further, the
offence of criminal breach of trust as
defined
under
Section
405
IPC
is
qualitatively different from any of the
offences specified in section 103 or any
provisions of the Act, 1965. Therefore a
cooperative society, employee/servant
or
member
or
an
office-bearer,
notwithstanding the provisions of the
Act, 1965 can be prosecuted for an
offence punishable under Penal Code,
provided the necessary ingredients of
that offence are made out. (Para 20)

Writ Petition Rejected. (E-10)

List of cases cited:-

## Text

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11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
331
(2020)11ILR A331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Criminal Misc. Writ Petition No. 10492 of 2020

Devendra Singh Parihar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Singh

Counsel for the Respondents:
A.G.A.

A. U.P. Co-operative Societies Act, 1965
- Section 68, 70, 103, 105, 122-A - U.P.
Primary Agricultural Credit Co-operative
Centralized Service Rules, 1976 - IPC:
Section 405, 409 - General Clauses Act,
1897 - Section 26 - Practice & Procedure
- The allegations made in the impugned
FIR, prima facie, discloses commission
of an offence of criminal breach of trust,
which is cognizable and non-bailable
offence. Hence, merely because the
impugned
FIR
may
not
disclose
commission of an offence punishable
under Section 409 IPC the same is not
liable to be quashed because in any case
it discloses commission of a cognizable
offence. (Para 10)

An FIR is not to be quashed if it
discloses commission of a cognizable
offence unless there is a legal bar with
regard to its institution/lodgment in the
manner in which it has been lodged or
instituted. (Para 8)

There is nothing in the Act, 1965 which
may
expressly
or
impliedly
bar
prosecution of an employee or member
or office bearer of a co-operative society
in the State of Uttar Pradesh for an
offence
punishable
under
IPC,
if
otherwise
the
ingredients
of
that
offence are made out. Further, the
offence of criminal breach of trust as
defined
under
Section
405
IPC
is
qualitatively different from any of the
offences specified in section 103 or any
provisions of the Act, 1965. Therefore a
cooperative society, employee/servant
or
member
or
an
office-bearer,
notwithstanding the provisions of the
Act, 1965 can be prosecuted for an
offence punishable under Penal Code,
provided the necessary ingredients of
that offence are made out. (Para 20)

Writ Petition Rejected. (E-10)

List of cases cited:-

1. St. of Mah. Vs Laljit Rajshi Shah & ors. AIR
2000 SC 937: (2000) 2 SCC 699 (Distinguished)

2. Vijayander Kumar & ors. Vs St. of Raj. & anr.
(2014) 3 SCC 389

3. P. Swaroopa Rani Vs M. Hari Narayana @
Hari Babu (2008) 5 SCC 765

4. St. of Raj. Vs Hat Singh (2003) 2 SCC 152

5. St. of (NCT of Delhi) Vs Sanjay (2014) 9 SCC
772

6. St. of Mah. Vs Sayyed Hassan Subhan
Criminal Appeal No. 1195 of 2018 arising out of
Special Leave Petition (Criminal) No. 4475 of
2016

7. St. of A.P. Vs Ramchandra Rabidas (2019) 10
SCC 75

(Delivered by Hon'ble Manoj Misra, J.
& Hon'ble Saumitra Dayal Singh, J.)

1. Heard learned counsel for the
petitioner; learned A.G.A. for respondents
no.1 and 2; and perused the record.

2. The instant petition seeks quashing
of the first information report (for short
332 INDIAN LAW REPORTS ALLAHABAD SERIES
FIR) dated 19.06.2020 registered as Case
Crime No.120 of 2020, under Sections 409
I.P.C., at Police Station- Baberu, District-
Banda.

3. The allegation in the impugned FIR
is that while the petitioner was working as
Secretary of Kisan Sewa Sahkari Samiti
Limited, Baberu (for short the society)
there had been defalcation of 10.485 MT of
urea, valued at Rs.88,140, and 20 bags of
D.A.P.,
valued
at
Rs.23,000,
the
consideration of which was not deposited
in the bank account of the society. The
allegation is founded on inspection/ inquiry
report which indicated that though the said
stock of fertiliser was reflected by entries
made in the stock register but the stock was
not available.

4. It appears from the pleadings that,
on the said ground, the petitioner was also
placed
under
suspension
and,
later,
dismissed from service.

5. The case of the petitioner is that the
petitioner had been a Cadre Secretary of a
Primary Agricultural Credit Co-operative
Society,
which
though,
as
part
of
centralized service, is governed by the
provisions of U.P. Primary Agricultural
Credit Cooperative Centralised Service
Rules, 1976 framed under section 122-A of
the U.P. Co-operative Societies Act, 1965
(for short Act, 1965) but salary is paid
through business margin of the society and
not by the State. As such, the petitioner is
not a pubic servant. And since the
petitioner is neither banker nor merchant
nor agent of the society, no offence
punishable under Section 409 I.P.C. is
made out. It is also the case of the
petitioner that if there is any defalcation, as
alleged, there could be recovery of the
amount defalcated, if any, under the
provisions of the Act, 1965, such as section
68 of the Act, 1965, and, in case of any
dispute, there could be a reference for
arbitration under section 70 of the Act,
1965.
Moreover,
if
any
offence
is
committed by an employee of the society
then there could be prosecution under
section 103 of the Act, 1965, for which a
special procedure is provided under section
105 of the Act, 1965.

6. In a nutshell, the submission of the
learned counsel for the petitioner is that the
Act, 1965 is a complete and self-contained
code which, by necessary implication, ousts
the applicability of Indian Penal Code (for
short the Penal Code or IPC). And, in any
view of the matter, an offence punishable
under section 409 IPC is not made out.
Hence, the FIR is liable to be quashed. In
support of the above submission, the
learned counsel for the petitioner placed
reliance on a decision of the Apex Court in
State of Maharashtra Vs. Laljit Rajshi
Shah and others: AIR 2000 SC 937 :
(2000) 2 SCC 699, wherein, with reference
to the Maharashtra Co-operative Housing
Societies Act, the Apex Court affirmed the
view of the Bombay High Court that the
Chairman and members of the Management
Committee of a Co-operative Society in
Maharashtra are not public servants within
the meaning of Section 21 of the Penal
Code and therefore are not liable to be
prosecuted for an offence punishable under
section 409 of the Penal Code or under the
provisions of the Prevention of Corruption
Act.

7. Per Contra, the learned AGA
submitted as follows: that there is nothing
in the Act, 1965 which may expressly or
impliedly bar the applicability of the Penal
Code; that even assuming that there could
be recovery of the defalcated amount from
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
333
the petitioner as per the provisions of the
Act, 1965 but that would not absolve the
petitioner of his liability to be punished for
commission of an offence under the Penal
Code, if found guilty; that section 103 of
the Act, 1965 though enumerates various
offences but they do not specifically deal
with an offence of the nature of criminal
breach of trust as defined by section 405 of
the Penal Code; that section 105 of the Act,
1965 provides for a special procedure for
offences punishable under that Act, and not
for offences punishable under the Penal
Code for which the Code of Criminal
Procedure, 1973 (for short the Code or
CrPC) would continue to apply; and even if
it is assumed that the petitioner is neither a
public servant nor banker, merchant, factor,
attorney or agent, he being the chief
executive officer of the society and
entrusted with the possession and control of
the goods is liable for an offence of
criminal breach of trust, which is a
cognizable
and
non-bailable
offence.
Hence, the prayer to quash the impugned
FIR is liable to be rejected. In respect of the
decision cited by the learned counsel for
the petitioner, the learned AGA pointed out
that the accused in that case were being
proceeded under Sections 120-B, 409, 420,
467, 471 and 477-A I.P.C., Sections 7 and
9 of the E.C. Act and Section 5(1)(c) and
Section 5 (1)(d) read with Section 5(2) of
the Prevention of Corruption Act, after
taking of cognizance by the Special Judge.
The High Court had held that members of
Managing Committee and the Chairman of
the Co-operative Societies in Maharashtra
are not public servants, therefore they
cannot be prosecuted under Section 409
I.P.C. and Sections 5(1)(c) and Section
5(1)(d) read with Section 5(2) of the
Prevention of Corruption Act, though they
can be prosecuted for other offences for
which cognizance had been taken. The
Apex Court upheld the decision of the
Bombay High Court and dismissed the
appeal. It is thus submitted by him that the
decision of the Apex Court cannot be read
so as to infer that for no offence punishable
under the Penal Code, a Secretary of a Cooperative Society in the State of U.P. can
be prosecuted.

8. Before we proceed to deal with the
rival submissions, it would be apposite to
remind ourselves of the settled legal
position which is that while the matter is
under investigation, ordinarily, an FIR is
not
to
be
quashed
if
it
discloses
commission of a cognizable offence unless
there is a legal bar with regard to its
institution /lodgement in the manner in
which it has been lodged or instituted.
Once a cognizable offence is reported
under the Code, the police or the
investigating agency, as the case may be,
derives power to investigate. As to what
offence, punishable under which provision,
has been committed, and by which accused,
is to be determined, first, by the police on
the basis of material collected by it, from
time to time, during the course of
investigation, and finally, while submitting
its report under section 173(2) CrPC.
Where after, the court at the time of taking
cognizance, on the basis of material
available in the police report, may come to
its own conclusion with regard to the
offence, prima facie, found committed, and
proceed accordingly. Thereafter, before
framing of charge, again, the court derives
power to discharge the accused from all or
certain
charges
and
frame
charge
accordingly. During the course of trial, on
the basis of evidence available, again
charge can be altered. Thus, at the stage of
addressing the prayer to quash the FIR the
court should ordinarily decline the prayer if
the allegations in the FIR, if taken on their
334 INDIAN LAW REPORTS ALLAHABAD SERIES
face value, disclose commission of a
cognizable offence and there is no legal bar
to its lodgement or institution.

9. Coming to the issues raised in the
instant petition, there is no serious
challenge as to the disclosure of an offence
of criminal breach of trust by the impugned
FIR. The challenge is to: (a) the offence
being punishable under section 409 IPC,
inasmuch as, according to the petitioner,
neither he is a public servant, as defined by
section 21 IPC, nor falls in any of the other
specified categories mentioned in section
409 IPC therefore offence punishable under
section 409 IPC is not made out; and (b)
the registration of the FIR for an offence
punishable under the Penal Code, inasmuch
as, according to the petitioner, the FIR for
an offence punishable under the Penal
Code is impliedly barred as the Act, 1965 is
a self-contained code which not only
provides
for
recovery
but
also
for
punishment of offences specified in the
Act, 1965, if committed by an employee,
member, etc of a co-operative society and
for prosecution of which a specific
procedure is provided therein.

10. The first limb of the challenge,
that an offence under section 409 IPC is not
made out because the petitioner is neither a
public servant nor falls in any of the other
categories specified therein, should not
hold us for long inasmuch as even
assuming that the petitioner is not a public
servant within the meaning of section 21 of
the Penal Code he can still be investigated
and held liable for an offence of criminal
breach of trust punishable under section
406 IPC, which is a cognizable offence.
Further, if there is a master and servant
relationship between the petitioner and the
society or its management committee, and
the petitioner is found entrusted with goods
as a servant thereof, defalcation of the
goods
may
amount
to
an
offence
punishable
under
section
408
IPC.
Likewise, if the petitioner in his capacity as
a secretary of the society acts as an agent of
the society and is entrusted with goods in
such capacity and commits criminal beach
of trust, he may be held liable for an
offence punishable under section 409 IPC.
In that context, regard be had to the
provisions of section 31(2) of the Act, 1965
as per which the secretary of a co-operative
society is the chief executive officer of the
society
and
subject
to
control
and
supervision of the chairman and the
committee of management as may be
provided by the rules or the bye-laws of the
society and shall--(a) be responsible for the
sound management of the business of the
society and its efficient administration; (b)
carry on the authorised and normal
business of the society; (c) subject to the
provisions of the bye-laws of the society,
operate its accounts and, except where the
society has a cashier or treasurer, handle
and keep in his custody its cash balances;
(d) sign and authenticate all documents for
and on behalf of the society; (e) be
responsible for the proper maintenance of
various books and records of the society
and for the correct preparation and timely
submission of periodical statements and
returns in accordance with the Act, 1965,
the rules, the bye-laws and the instructions
of the Registrar or the State Government;
(f) convene meetings of the general body,
the Committee of Management and any
sub-committee
constituted
by
the
Committee of Management and maintain
proper records of such meetings; and (g)
perform such other duties and exercise such
other powers as may be imposed or
conferred on him under the rules or the
bye-laws of the society. Whether this
relationship between the society and the
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
335
secretary partakes the character of a
relationship as between a principal and his
agent would depend on various factual
aspects including the bye-laws of the
society. Hence, expressing any concrete
opinion
as
to
whether
an
offence
punishable under section 409 IPC is made
out or not, at this stage, would not be
appropriate, particularly, when the matter is
under investigation. Similarly, the issue
whether the petitioner can be treated as a
public servant within the meaning of
section 21 of IPC can appropriately be
examined with reference to all the material
collected during the course of investigation,
particularly, keeping in mind the wide
encompass of section 21 of the Penal Code.
Moreover, the apex court's decision in
State of Maharashtra Vs. Laljit Rajshi
Shah (supra) is in the context of
prosecution of Chairman and Managing
Committee Member of a society and their
relationship qua the society and that too
with reference to the law relating to
Maharashtra Cooperative Societies. Thus,
without expressing any definite opinion on
the plea taken by the petitioner that the
Secretary of a Primary Agricultural Credit
Co-operative Society is not a public servant
and, therefore, not liable under section 409
IPC, we deem it appropriate to leave this
issue to be dealt with at the appropriate
stage, say at the stage of framing charge, if
required. However, what is important is
that, in any view of the matter, the
allegations made in the impugned FIR,
prima facie, disclose commission of an
offence of criminal breach of trust, which is
a cognizable and non-bailable offence.
Hence, merely because the impugned FIR
may not disclose commission of an offence
punishable under section 409 IPC the same
is not liable to be quashed because in any
case
it
discloses
commission
of
a
cognizable offence.

11. In respect of the second limb of
challenge, that is the impugned FIR is
barred by the provisions of the Act, 1965,
the argument of the learned counsel for the
petitioner is that the Act, 1965 is a selfcontained code inasmuch as it not only
confers power to recover the dues but also
provides for a mechanism to adjudicate
upon any such dispute by way of
arbitration. In addition thereto, it provides
for a complete set of offences that could be
committed by a servant/employee or
member or office-bearer of a society as also
its punishment including the procedure for
prosecution
of
those
offences
with
reference to the mode of its institution and
cognizance. Thus, recourse to the general
provisions of the Penal Code is impliedly
barred.

12. Dealing with the above argument,
with regard to existence of mechanism
under the Act, 1965 to secure recovery of
money, suffice to say that it can never be a
bar
to
drawing
criminal
proceeding
inasmuch as it is trite law that given set of
facts may make out a civil wrong as also a
criminal offence and only because a civil
remedy may also be available to the
informant / complainant that itself cannot
be a ground to quash a criminal proceeding.
The real test is whether the allegations in
the complaint or FIR disclose a criminal
offence or not (vide Vijayander Kumar
and others Vs. State of Rajasthan and
Another, (2014) 3 SCC 389, para 12).
Further, there could be simultaneous civil
and criminal proceedings if the facts so
justify (vide (2008) 5 SCC 765: P.
Swaroopa Rani Vs. M. Hari Narayana @
Hari Babu). Thus, merely because there is
a platform available to initiate and
culminate recovery proceeding of the
defalcated amount, it cannot be said that
penal proceedings to punish the wrongdoer
336 INDIAN LAW REPORTS ALLAHABAD SERIES
for an offence punishable under the Penal
Code cannot be initiated.

13. To ascertain whether prosecution
of an employee of a cooperative society for
an offence of criminal breach of trust is
barred by the provisions of the Act, 1965,
the relevant provisions of the Act, 1965
need to be noticed and examined. Sections
103 of the Act, 1965 provide for the penal
offences; Section 104A provides for
compounding; and Section 105 provides for
the procedure with regard to institution of
the prosecution for those offences. The
aforesaid sections are extracted below:

"103. Offences and penalties
under the Act. - (1) It shall be an offence
under this Act, if-

(i) a committee of management of
a co-operative society or a member or an
officer thereof fails without reasonable
cause to submit any return, report or
information required under the provisions
of this Act by the Registrar or by a person
of a rank not below that specified by the
State Government duly authorised by the
Registrar in this behalf, or wilfully makes a
false return or furnishes false information
or fails to maintain proper account; or

(ii) an officer, employee or a
member
of
a
co-operative
society
fraudulently destroys, mutilates, alters,
falsified
or
abets
the
destruction,
mutilation, alteration or falsification or any
books, papers, or securities, or makes or
abets the making of any false entry in any
register, book of account or document
belonging to the society; or

(iii)
the
committee
of
management of a co-operative society, or
an officer in possession of the books,
records and property of the society refuses
or fails without reasonable cause to hand
over the custody of such books, records and
property belonging to the society to a
person lawfully entitled to receive the same
under this Act, the rules or the bye-laws; or

(iv) the committee of management
of a co-operative society or an officer fails,
without reasonable cause, to establish a
Contributory
Provident
Fund
for
its
employees as required by Section 63; or

(v) any officer of a co-operative
society fails to maintain such accounts and
registers as may be prescribed; or

(vi) an officer or a member of cooperative society who is in possession of
information, books and records, fails,
without reasonable cause, to furnish such
information or produce books and papers
or give assistance to the person appointed
by the State Government under sub-section
(1) of Section 64, or any person authorised
by him to conduct audit, or to the Registrar
or a person authorized or appointed by the
Registrar under Sections 64, 65, 66, 73 or
123; or

(vii)
an
employer,
without
sufficient cause, fails to pay to a cooperative society the amount deducted by
him under sub-section (2) of Section 40
within a period of 14 days from the date on
which such deduction is made; or

(viii) an officer or member of a
co-operative society or any person does
any act or omission declared by the rules to
be an offence.

(2) (a) Whoever commits an
offence under clause (i), (iv), (v), (vii) or
(viii) of sub-section (1) shall on conviction
be liable to be punished with fine which
may extend to two thousand rupees.

Provided that, any person who
does an act in relation to elections which
has been made an offence under the rules,
shall be punishable with imprisonment for
such term not exceeding two years, or with
fine not exceeding rupees five thousand as
may be provided in the rules, or with both.
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
337

(b) Whoever commits an offence
under clause (ii), clause (iii) or clause (vi)
of sub-section (1) shall on conviction be
liable to be punished with imprisonment of
either description which may extend to two
years and shall also be liable to fine which
may extend to three thousand rupees;(c)
every offence referred to in clause (b) shall
be cognizable and bailable.

104A. Compounding of offences.
- (1) The Registrar may, either before or
after the institution of the prosecution,
compound any offence punishable under
this Act on realisation of such amount of
composition fee as he thinks fit, and where
such offence is punishable with fine only
then such composition fee shall not exceed
the maximum amount of fine fixed for the
offence.

(2) Where the offence is so
compounded-

(a) before the institution of the
prosecution, the offender shall not be liable
to prosecution for such offence and shall, if
in custody be set at liberty;

(b) after the institution of the
prosecution, the composition shall amount
to acquittal of the accused

105. Cognizance of offences. -
(1) No court, inferior to that of a
stipendiary magistrate of the first class
shall try any offence under this Act.

(2) No prosecution shall be
instituted under this Act without the
previous sanction of the Registrar and such
sanction shall not be given without
affording to the person sought to be
prosecuted an opportunity to represent his
case."

14. A perusal of the aforesaid
provisions would reflect that the offences
contemplated
under
the
Act,
1965
including the penalties imposable thereon
are described in section 103 of the Act,
1965 and the procedure relating to
institution and cognizance of those offences
is provided under section 105 of the Act,
1965. Neither we have been taken through
nor we could find any provision in the Act,
1965 which may bar or prohibit or exclude
the applicability of the Penal Code. Section
103 of the Act, 1965, in fact, carves out a
new set of offences. For prosecution of
those offences, procedure with regard to
their institution and cognizance is provided
in section 105 of the Act, 1965. Section
105 prohibits cognizance of the offences
punishable under the Act, 1965 save with
the previous sanction of the Registrar
provided after affording opportunity to the
person to be prosecuted to represent his
case. Section 105 does not deal with the
offences punishable under the Penal Code.
We further notice that section 103 of the
Act, 1965 does not specifically enlist an
offence of the nature of criminal breach of
trust as defined in section 405 of the Penal
Code.

15. At this stage, it would be useful to
refer to the provisions of Section 26 of the
General Clauses Act, 1897 (for short G.C.
Act) and few decisions of the Apex Court
dealing with situations where an act may
constitute
offences
punishable
under
separate statutes. Section 26 of G.C. Act
provides as follows:

"26. Provision as to offences
punishable under two or more enactments.-
- Where an act or omission constitutes an
offence under two or more enactments, then
the offender shall be liable to be prosecuted
and punished under either or any of those
enactments, but shall not be liable to be
punished twice for the same offence."

16. In State of Rajasthanv.Hat
Singh, (2003) 2 SCC 152, the apex court
338 INDIAN LAW REPORTS ALLAHABAD SERIES
had
the
occasion
to
examine
the
significance of section 26 of the G.C. Act
with reference to the rule against double
jeopardy enshrined under Article 20(2) of
the Constitution of India and section 300 of
the Code. The apex court in paragraphs 8 to
11 of its judgment, as reported, held as
follows:

"8.
Article
20(2)
of
the
Constitution provides that no person shall
be prosecuted and punished for the same
offence more than once. To attract
applicability of Article 20(2) there must be
a second prosecution and punishment for
the same offence for which the accused has
been prosecuted and punished previously.
A subsequent trial or a prosecution and
punishment
are
not
barred
if
the
ingredients of the two offences are distinct.

9. The rule against double
jeopardy is stated in the maxim nemo debet
bis vexari pro una et eadem causa. It is a
significant basic rule of criminal law that
no man shall be put in jeopardy twice for
one and the same offence. The rule
provides foundation for the pleas of
autrefois acquit and autrefois convict. The
manifestation of this rule is to be found
contained in Section 26 of the General
Clauses Act, 1897, Section 300 of the Code
of Criminal Procedure, 1973 and Section
71 of the Penal Code, 1860. Section 26 of
the General Clauses Act provides:

"26. Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be
liable to be prosecuted and punished under
either or any of those enactments, but shall
not be liable to be punished twice for the
same offence."

Section 300 CrPC provides, inter
alia-

"300. (1) A person who has once
been tried by a court of competent
jurisdiction for an offence and convicted or
acquitted of such offence shall, while such
conviction or acquittal remains in force,
not be liable to be tried again for the same
offence, nor on the same facts for any other
offence for which a different charge from
the one made against him might have been
made under sub-section (1) of Section 221,
or for which he might have been convicted
under sub-section (2) thereof."

Both the provisions employ the
expression "same offence".

10. Section 71 IPC provides--

"71. Where anything which is an
offence is made up of parts, any of which
parts is itself an offence, the offender shall
not be punished with the punishment of
more than one of such of his offences,
unless it be so expressly provided. Where
anything is an offence falling within two or
more separate definitions of any law in
force for the time being by which offences
are defined or punished, or where several
acts, of which one or more than one would
by itself or themselves constitute an
offence, constitute, when combined, a
different offence, the offender shall not be
punished with a more severe punishment
than the court which tries him could award
for any one of such offences."

11. The leading Indian authority
in which the rule against double jeopardy
came to be dealt with and interpreted by
reference
to
Article
20(2)
of
the
Constitution is the Constitution Bench
decision
inMaqbool
Hussainv.State
of
Bombay. If the offences are distinct, there
is no question of the rule as to double
jeopardy being extended and applied.
InState
of
Bombayv.S.L.
Aptethe
Constitution Bench held that the trial and
conviction of the accused under Section
409 IPC did not bar the trial and
conviction for an offence under Section 105
of the Insurance Act because the two were
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
339
distinct offences constituted or made up of
different ingredients though the allegations
in the two complaints made against the
accused may be substantially the same.
InOm
Parkash
Guptav.State
of
U.P.andState of M.P.v.Veereshwar Rao
Agnihotriit was held that prosecution and
conviction or acquittal under Section 409
IPC do not debar the accused being tried
on a charge under Section 5(2) of the
Prevention
of
Corruption
Act,
1947
because the two offences are not identical
in sense, import and content. InRoshan
Lalv.State of Punjabthe accused had
caused disappearance of the evidence of
two offences under Sections 330 and 348
IPC and, therefore, he was alleged to have
committed two separate offences under
Section 201 IPC. It was held that neither
Section 71 IPC nor Section 26 of the
General Clauses Act came to the rescue of
the accused and the accused was liable to
be convicted for two sets of offences under
Section 201 IPC though it would be
appropriate not to pass two separate
sentences.

17. In State (NCT of Delhi)v.Sanjay,
(2014) 9 SCC 772, the principal question
that arose for consideration before the apex
court was whether the provisions contained
in Sections 21, 22 and other sections of the
Mines and Minerals (Development and
Regulation) Act, 1957 operate as bar
against prosecution of a person who has
been
charged
with
allegation
which
constitutes offences under Section 379 and
other provisions of the Penal Code, 1860.
In
other
words,
the
question
for
consideration was whether the provisions
of the Mines and Minerals Act explicitly or
impliedly exclude the provisions of the
Penal Code when the act of an accused is
an offence both under the Penal Code and
under the provisions of the Mines and
Minerals (Development and Regulation)
Act. Deciding the issue, the apex court held
as follows:

61. Reading the provisions of the
Act minutely and carefully, prima facie we
are of the view that there is no complete
and absolute bar in prosecuting persons
under the Penal Code where the offences
committed by persons are penal and
cognizable offence.

62. Sub-section (1-A) of Section 4
of the MMDR Act puts a restriction in
transporting and storing any mineral
otherwise than in accordance with the
provisions of the Act and the Rules made
thereunder. In other words no person will
do mining activity without a valid lease or
licence. Section 21 is a penal provision
according to which if a person contravenes
the provisions of sub-section (1-A) of
Section 4, he shall be prosecuted and
punished in the manner and procedure
provided in the Act. Sub-section (6) has
been inserted in Section 4 by amendment
making
the
offence
cognizable
notwithstanding anything contained in the
Code of Criminal Procedure, 1973. Section
22 of the Act puts a restriction on the court
to
take
cognizance
of
any
offence
punishable under the Act or any Rule made
thereunder except upon a complaint made
by a person authorised in this behalf. It is
very important to note that Section 21 does
not begin with a non obstante clause.
Instead of the words "notwithstanding
anything contained in any law for the time
being in force no court shall take
cognizance....", the section begins with the
words "no court shall take cognizance of
any offence." 63 to 68...............................

69. Considering the principles of
interpretation and the wordings used in
Section 22, in our considered opinion, the
provision is not a complete and absolute
340 INDIAN LAW REPORTS ALLAHABAD SERIES
bar for taking action by the police for
illegal and dishonestly committing theft of
minerals including sand from the riverbed.
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 ecosystem of the rivers and
safety of bridges. It also weakens riverbeds,
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
cause serious repercussions as mentioned
hereinabove. It will not only change the
river hydrology but also will deplete the
groundwater levels.

70. 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 authorised 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
authorised officer. In case of breach and
violation of Section 4 and other provisions
of the Act, the police officer cannot insist
the 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 is sought to be
prosecuted for contravention of Section 4
of the Act and not for any act or omission
which constitutes an offence under the
Penal Code.

71. However, there may be a
situation where a person without any lease
or licence or any authority enters into river
and extracts sand, gravel and other
minerals and remove or transport those
minerals in a clandestine manner with an
intent to remove dishonestly those minerals
from the possession of the State, is liable to
be punished for committing such offence
under Sections 378 and 379 of the Penal
Code.

72. From a close reading of the
provisions of the 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, gravel and
other minerals from the river, which is the
property of the State, out of the State's
possession without the consent, constitute
an offence of theft. 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 persons. In other words, in a
case where there is a theft of sand and
gravel from the government land, the police
can register a case, investigate the same
and submit a final report under Section 173
CrPC
before
a
Magistrate
having
jurisdiction for the purpose of taking
cognizance
as
provided
in
Section
11 All. Devendra Singh Parihar Vs. State of U.P. & Ors.
341
190(1)(d)
of
the
Code
of
Criminal
Procedure.

73. After giving our thoughtful
consideration in the matter, in the light of
the relevant provisions of the Act vis-à-vis
the Code of Criminal Procedure and the
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 riverbeds without consent, which
is the property of the State, is a distinct
offence
under
IPC.
Hence,
for
the
commission of offence under Section 378
IPC, 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 authorised officer for taking
cognizance in respect of violation of
various provisions of the MMDR 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
Magistrates
concerned
to
proceed
accordingly."

18. In a recent decision of the apex
court, rendered in Criminal Appeal No.
1195 of 2018 arising out of Special Leave
Petition (Criminal) No. 4475 of 2016,
decided on September 20, 2018 (State of
Maharashtrav.Sayyed
Hassan
Sayyed
Subhan), (2019) 18 SCC 145 the issue that
had arisen for consideration was whether
an accused could be prosecuted for an
offence punishable under the Penal Code
for which a proceeding can also be drawn
under the provisions of the Food Safety and
Standards Act. By relying upon the
decision of the Apex Court in State of
Rajasthanv.Hat Singh(supra) andState of
Delhi
(NCT)v.Sanjay(supra),
the
apex
court, in paragraphs 7 and 8 of the
judgment, held as follows:--

"7. There is no bar to a trial or
conviction of an offender under two
different enactments, but the bar is only to
the punishment of the offender twice for the
offence. Where an act or an omission
constitutes
an
offence
under
two
enactments, the offender may be prosecuted
and punished under either or both
enactments but shall not be liable to be
punished twice for the same offence. The
same set of facts, in conceivable cases, can
constitute offences under two different
laws. An act or an omission can amount to
and constitute an offence under the IPC
and at the same time, an offence under any
other law. The High Court ought to have
taken note of Section 26 of the General
Clauses Act, 1897 which reads as follows:

"Provisions
as
to
offences
punishable under two or more enactments -
Where an act or omission constitutes an
offence under two or more enactments, then
the offender shall be liable to be prosecuted
and punished under either or any of those
enactments, but shall not be liable to be
punished twice for the same offence."

8. InHat Singh's casethis Court
discussed the doctrine of double jeopardy
and Section 26 of the General Clauses Act
to observe that prosecution under two
different
Acts
is
permissible
if
the
ingredients of the provisions are satisfied
on the same facts. While considering a
dispute about the prosecution of the
Respondent therein for offences under the
Mines and Minerals (Development and
Regulation) Act 1957 and Penal Code,
1860,
this
Court
inState
(NCT
of
Delhi)v.Sanjayheld that there is no bar in
prosecuting persons under the Penal Code
where the offences committed by persons
are penal and cognizable offences. A
342 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the provisions of the FSS Act
would make it clear that there is no bar for
prosecution under the IPC merely because
the provisions in the FSS Act prescribe
penalties. We, therefore, set aside the
finding of the High Court on the first
point."

19. In State of Arunachal Pradesh
Vs. Ramchandra Rabidas, (2019) 10
SCC
75,
the
issue
that
came
for
consideration before the Apex Court was
whether the directions issued by the
Gauhati High Court that road traffic
offences shall be dealt with only under the
Motor Vehicles Act, 1988 (the M.V. Act)
and recourse to the provisions of Penal
Code would be unsustainable in law was
legally justified. Upon finding that there is
no provision under the MV Act separately
dealing with offences such as causing
death, or grievous hurt, or hurt by a motor
vehicle in cases of motor vehicle accidents
and that Chapter XIII of the MV Act is
silent about the act of rash and negligent
driving resulting in death of a person, or
hurt, or grievous hurt to persons, in
paragraphs 12 to 16 of the judgment, as
reported, it was held as under:

"12.The legislative intent of the
MV Act, and in particular Chapter XIII of
the MV Act, was not to override or
supersede the provisions of IPC insofar as
convictions of offenders in motor vehicle
accidents are concerned. Offences under
Chapter XIII of the MV Act cannot
abrogate the applicability of the provisions
under Sections 297, 304, 304-A, 337 and
338 IPC.