# JAYANT ETC v. THE STATE OF MADHYA PRADESH

- **Citation:** [2020] 11 S.C.R. 665
- **Court:** Supreme Court of India
- **Decided:** 2020-12-03
- **Case number:** Criminal Appeal Nos. 824-825 of 2020
- **Bench:** Ashok Bhushan, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jayant-etc-v-the-state-of-madhya-pradesh-34525
- **Pages:** 41

## Headnote

Mines & Minerals (Development & Regulation) Act, 1957 -
ss.4, 21, 22, 23A - Bar u/ss.22, 23A - When attracted - Illegal
mining, storage and transportation of minerals - Magistrate suo
motu directed registration of FIR - Applications filed by private
appellants for quashing of FIRs for offences u/ss.379, 414, IPC;
ss.4/21, MMDR Act and u/r.18, 2006 Rules - Dismissed by High
Court - On appeal, held: Magistrate can in exercise of powers
u/s.156(3) direct the concerned In-charge/SHO of the police station
to register crime case/FIR even for offences under the MMDR Act
and the Rules made thereunder - Bar u/s. 22 is not attracted at this
stage - It is attracted only when the Magistrate takes cognizance
of the offences under the MMDR Act/Rules and orders issuance of
process/summons - In the present case, it cannot be said that at this
stage the Magistrate had taken any cognizance of the alleged
offences attracting bar u/s.22 - Further, the offences under the
MMDR Act as against the private appellants were permitted to be
compounded by the competent authority thus, the bar contained in
sub-sec.2 of s.23A is attracted - Hence, there shall not be any
proceedings/further proceedings in respect of the offences
punishable under the MMDR Act/Rule so compounded - However,
the aforesaid bar shall not be applicable for offences under IPC,
such as ss.379, 414, as offences under the MMDR Act/Rule and
under the IPC are different and distinct - Proceedings quashed for
offences u/ss.4/21, MMDR Act only - Penal Code, 1860 - ss.379,
414 - Code of Criminal Procedure, 1973 - s.156(3) - M.P. Minerals
(Prevention of illegal Mining, Transportation and Storage) Rules,
2006 - r.18 - Madhya Pradesh Minor Mineral Rules, 1996 - r.53.
Disposing of the appeals, the Court
HELD: 1.1 Reading Section 22 of the Mines & Minerals
(Development & Regulation) Act, 1957 (MMDR Act) would show
[2020] 11 S.C.R. 665
665
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[2020] 11 S.C.R.
that cognizance of any offence punishable under the MMDR Act
or the Rules made thereunder shall be taken only upon a written
complaint made by a person authorised in this behalf by the
Central Government or the State Government. Therefore, on a
fair reading of Section 22 of the MMDR Act, the bar would be
attracted when the Magistrate takes cognizance. [Para 8.1][685A, C]
1.2 The High Court has not committed any error in not
quashing the order passed by the Magistrate and not quashing
the criminal proceedings for the offences under Sections 379 and
414. The Magistrate in exercise of the suo motu powers conferred
under Section 156(3), Cr.P.C. directed the concerned In-charge/
SHO of the police station to lodge/register the crime case/FIR
and directed initiation of investigation and directed the concerned
In-charge/SHO of the police station to submit a report after due
investigation. It cannot be said that at this stage the Magistrate
had taken any cognizance of the alleged offences attracting bar
under Section 22 of the MMDR Act. 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. 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,
'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'. Even as observed by
this Court in the case of R.R. Chari, even the order passed by the
Magistrate ordering investigation under Section 156(3), or issuing
a search warrant for the purpose of the investigation, he cannot
be said to have taken cognizance of the offence. As observed by
the Cons

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JAYANT ETC.
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal Nos. 824-825 of 2020)
DECEMBER 03, 2020
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Mines & Minerals (Development & Regulation) Act, 1957 -
ss.4, 21, 22, 23A - Bar u/ss.22, 23A - When attracted - Illegal
mining, storage and transportation of minerals - Magistrate suo
motu directed registration of FIR - Applications filed by private
appellants for quashing of FIRs for offences u/ss.379, 414, IPC;
ss.4/21, MMDR Act and u/r.18, 2006 Rules - Dismissed by High
Court - On appeal, held: Magistrate can in exercise of powers
u/s.156(3) direct the concerned In-charge/SHO of the police station
to register crime case/FIR even for offences under the MMDR Act
and the Rules made thereunder - Bar u/s. 22 is not attracted at this
stage - It is attracted only when the Magistrate takes cognizance
of the offences under the MMDR Act/Rules and orders issuance of
process/summons - In the present case, it cannot be said that at this
stage the Magistrate had taken any cognizance of the alleged
offences attracting bar u/s.22 - Further, the offences under the
MMDR Act as against the private appellants were permitted to be
compounded by the competent authority thus, the bar contained in
sub-sec.2 of s.23A is attracted - Hence, there shall not be any
proceedings/further proceedings in respect of the offences
punishable under the MMDR Act/Rule so compounded - However,
the aforesaid bar shall not be applicable for offences under IPC,
such as ss.379, 414, as offences under the MMDR Act/Rule and
under the IPC are different and distinct - Proceedings quashed for
offences u/ss.4/21, MMDR Act only - Penal Code, 1860 - ss.379,
414 - Code of Criminal Procedure, 1973 - s.156(3) - M.P. Minerals
(Prevention of illegal Mining, Transportation and Storage) Rules,
2006 - r.18 - Madhya Pradesh Minor Mineral Rules, 1996 - r.53.
Disposing of the appeals, the Court
HELD: 1.1 Reading Section 22 of the Mines & Minerals
(Development & Regulation) Act, 1957 (MMDR Act) would show
[2020] 11 S.C.R. 665
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that cognizance of any offence punishable under the MMDR Act
or the Rules made thereunder shall be taken only upon a written
complaint made by a person authorised in this behalf by the
Central Government or the State Government. Therefore, on a
fair reading of Section 22 of the MMDR Act, the bar would be
attracted when the Magistrate takes cognizance. [Para 8.1][685A, C]
1.2 The High Court has not committed any error in not
quashing the order passed by the Magistrate and not quashing
the criminal proceedings for the offences under Sections 379 and
414. The Magistrate in exercise of the suo motu powers conferred
under Section 156(3), Cr.P.C. directed the concerned In-charge/
SHO of the police station to lodge/register the crime case/FIR
and directed initiation of investigation and directed the concerned
In-charge/SHO of the police station to submit a report after due
investigation. It cannot be said that at this stage the Magistrate
had taken any cognizance of the alleged offences attracting bar
under Section 22 of the MMDR Act. 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. 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,
'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'. Even as observed by
this Court in the case of R.R. Chari, even the order passed by the
Magistrate ordering investigation under Section 156(3), or issuing
a search warrant for the purpose of the investigation, he cannot
be said to have taken cognizance of the offence. As observed by
the Constitution Bench of this Court in the case of A.R. Antulay,
filing of a complaint in court is not taking cognizance and what
exactly constitutes taking cognizance is different from filing of a
complaint. Therefore, when an order is passed by the Magistrate
for investigation to be made by the police under Section 156(3)
of the Code, which the Magistrate did in the instant case, when
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such an order is made the police is obliged to investigate the
case and submit a report under Section 173(2) of the Code. That
thereafter the investigating officer is required to send report to
the authorised officer and thereafter as envisaged under Section
22 of the MMDR Act the authorised officer as mentioned in
Section 22 of the MMDR Act may file the complaint before the
Magistrate along with the report submitted by the investigating
officer and at that stage the question with respect to taking
cognizance by the Magistrate would arise. [Paras 10, 10.110.3][700-C-H; 701-A-D]
A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC
500 : [1984] 2 SCR 914 - followed.
Anil Kumar v. M. K. Aiyappa (2013) 10 SCC 705
: [2013] 9 SCR 869; R. R. Chari v. State of U.P. AIR
1951 SC 207 : [1951] SCR 312 - relied on.
2. It is true that in the present case the appropriate authority
determined the penalty under Rule 53 of the 1996 Rules/Rule 18
of the 2006 Rules, which the private appellants-violators paid
and therefore the bar contained in sub-section 2 of Section 23A
of the MMDR Act will be attracted. Section 23A as it stands today
has been brought on the Statute in the year 1972 on the
recommendations of the Mineral Advisory Board which provides
that any offence punishable under the MMDR Act or any rule
made thereunder may, either before or after the institution of the
prosecution, be compounded by the person authorised under
section 22 to make a complaint to the court with respect to that
offence, on payment to that person, for credit to the Government,
of such sum as that person may specify. Sub-section 2 of Section
23A further provides that where an offence is compounded under
sub-section (1), no proceeding or further proceeding, as the case
may be, shall be taken against the offender in respect of the
offence so compounded, and the offender, if in custody, shall be
released forthwith. Thus, the bar under sub-section 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
sub-section 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, the offences under the MMDR Act or any rule made
JAYANT ETC. v. THE STATE OF MADHYA PRADESH
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thereunder and the offences under the IPC are different and
distinct offences. Therefore, as in the present case, the mining
inspectors prepared the cases under Rule 53 of the 1996 Rules
and submitted them before the mining officers with the proposals
of compounding the same for the amount calculated according to
the concerned rules and the Collector approved the said proposal
and thereafter the private appellants-violators accepted the
decision and deposited the amount of penalty determined by the
Collector for compounding the cases in view of sub-section 2 of
Section 23A of the MMDR Act and the 1996 rules and even the
2006 rules are framed in exercise of the powers under Section
15 of the MMDR Act, criminal complaints/proceedings for the
offences under Sections 4/21 of the MMDR Act are not
permissible and are not required to be proceeded further in view
of the bar contained in sub-section 2 of Section 23A of the MMDR
Act. At the same time, the criminal complaints/proceedings for
the offences under the IPC - Sections 379/414 IPC which are
held to be distinct and different can be proceeded further, subject
to the observations made hereinabove. However, the above
conclusions are considering the provisions of Section 23A of the
MMDR Act, as it stands today. It might be true that by permitting
the violators to compound the offences under the MMDR Act or
the rules made thereunder, the State may get the revenue and
the same shall be on the principle of person who causes the
damage shall have to compensate the damage and shall have to
pay the penalty like the principle of polluters to pay in case of
damage to the environment. The violators cannot be permitted
to go scot free on payment of penalty only. There must be some
stringent provisions which may have deterrent effect so that the
violators may think twice before committing such offences and
before causing damage to the earth and the nature. It is the duty
cast upon the State to restore the ecological imbalance and to
stop damages being caused to the nature. As observed by this
Court in the case of Sanjay, excessive in-stream sand-and-gravel
mining from river beds and like resources causes the degradation
of rivers. It is further observed that apart from threatening
bridges, sand mining transforms the riverbeds into large and deep
pits, as a result, the groundwater table drops leaving the drinking
water wells on the embankments of these rivers dry. Even
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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 Section 23A of the
MMDR Act so long as it stands, the matter is left there and it is
left to the wisdom of the legislatures and the concerned States.
[Para 11][701-D-H; 702-A-H; 703-A-E]
3. By the order passed by the Magistrate, confirmed by
the High Court, by no stretch of imagination, it can be said that
directing to file the first information report/crime case for the
offences under the IPC and even for the offences under the
MMDR Act and the rules made thereunder, it affects any of the
powers of the authorised person to compound the offence. In
fact, in view of the decision of this Court in the case of Sanjay, in
which this Court has specifically observed and held that so far as
the offence under the IPC is concerned, there shall not be any
bar under Section 22 of the MMDR Act and when before the
High Court the State supported the order passed by the
Magistrate and rightly so and when the impugned judgment and
order passed by the High Court is in favour of the State, as such,
the State ought not to have filed the special leave petition/appeal.
[Para 12][703-F-H; 704-A-B]
4. Conclusions:
i) that the Magistrate can in exercise of powers under
Section 156(3) of the Code order/direct the concerned In-charge/
SHO of the police station to lodge/register crime case/FIR even
for the offences under the MMDR Act and the Rules made
thereunder and at this stage the bar under Section 22 of the
MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be
attracted only when the Magistrate takes cognizance of the
offences under the MMDR Act and Rules made thereunder and
orders issuance of process/summons for the offences under the
MMDR Act and Rules made thereunder;
JAYANT ETC. v. THE STATE OF MADHYA PRADESH
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iii) for commission of the offence under the 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 and Rules made thereunder; and
iv) that in respect of violation of various provisions of the
MMDR Act and the Rules made thereunder, when a Magistrate
passes an order under Section 156(3) of the Code and directs
the concerned In-charge/SHO of the police station to register/
lodge the crime case/FIR in respect of the violation of various
provisions of the Act and Rules made thereunder and thereafter
after investigation the concerned In-charge of the police station/
investigating officer submits a report, the same can be sent to
the concerned Magistrate as well as to the concerned authorised
officer as mentioned in Section 22 of the MMDR Act and
thereafter the concerned authorised officer may file the complaint
before the Magistrate along with the report submitted by the
concerned investigating officer and thereafter it will be open for
the Magistrate to take cognizance after following due procedure,
issue process/summons in respect of the violations of the various
provisions of the MMDR Act and Rules made thereunder and at
that stage it can be said that cognizance has been taken by the
Magistrate.
v) in a case where the violator is permitted to compound
the offences on payment of penalty as per sub-section 1 of Section
23A, considering sub-section 2 of Section 23A of the MMDR
Act, there shall not be any proceedings or further proceedings
against the offender in respect of the offences punishable under
the MMDR Act or any rule made thereunder so compounded.
However, the bar under sub-section 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.
The appeals filed by the violators/private appellants are
partly allowed, 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
stands dismissed. [Paras 13, 14][704-C-H; 705-A-D]
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Krishna Pillai v. T. A. Rajendran (1990) Suppl. SCC
121; Manohar M. Galani v. Ashok N. Advani (1999) 8
SCC 737 : [1999] 4 Suppl. SCR 458; S. K. Sinha, Chief
Enforcement Officer v. Videocon International Limited
(2008) 2 SCC 492 : [2008] 2 SCR 36; Fakhruddin
Ahmad v. State of Uttaranchal (2008) 17 SCC 157 :
[2008] 13 SCR 66; Subramanian Swamy v. Manmohan
Singh (2012) 3 SCC 64 : [2012] 3 SCR 52 -relied on.
State (NCT of Delhi) v. Sanjay (2014) 9 SCC
772; [2014] 9 SCR 1063; Kanwar Pal Singh v. State
of U.P. (2020) 14 SCC 331 - referred to.
Case Law Reference
[2014] 9 SCR 1063
referred to
Para 3.1
(2020) 14 SCC 331
referred to
Para 5(iii)
(1990) Suppl. SCC 121
relied on
Para 9.1
[1984] 2 SCR 914
followed
Para 9.1
[1999] 4 Suppl. SCR 458
relied on
Para 9.2
[2008] 2 SCR 36
relied on
Para 9.3
[2008] 13 SCR 66
relied on
Para 9.4
[2012] 3 SCR 52
relied on
Para 9.5
[2013] 9 SCR 869
relied on
Para 9.6
[1951] SCR 312
relied on
Para 10.3
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 824-825 of 2020.
From the Judgment and Order dated 11.05.2020 of the High Court
of Madhya Pradesh, Bench at Indore in M. Cr. C. No. 49338 of 2019
and M. Cr. C. No. 49972 of 2019.
With
Criminal Appeal No.826 of 2020.
Mr. Saurabh Mishra, AAG, Devadatt Kamat, Sr. Adv., Pai Amit,
Shoeb Hasan Khan, Aditya Bhat, Rajesh Inamdar, Amit Seth,
Ms. Pankhuri Bhardwaj, Sunny Choudhary, Advs. for the appearing
parties.
JAYANT ETC. v. THE STATE OF MADHYA PRADESH
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 11.05.2020 passed by the High Court of Madhya
Pradesh, Bench at Indore in M.Cr.C No. 49338/2019 and M.Cr.C. No.
49972/2019, the original petitioner as well as the State of Madhya Pradesh
have preferred the present appeals.
By the impugned common judgment and order, the High Court
has dismissed the aforesaid applications filed under Section 482 Cr.P.C.
to quash the respective FIRs for the offences under Sections 379 and
414, IPC, Sections 4/21 of the Mines & Minerals (Development &
Regulation) Act, 1957 (hereinafter referred to as the 'MMDR Act') and
under Rule 18 of the M.P. Minerals (Prevention of illegal Mining,
Transportation and Storage) Rules, 2006 (hereinafter referred to as the
'2006 Rules').
3. The facts in nutshell are as under:
On a surprise inspection, the respective Mining Inspectors checked
the tractor/trolleys of the private appellants along with the minor mineral
(sand/storage/yellow soil etc.) loaded in them. They handed over the
tractor/trolleys to the concerned police stations to keep them in safe
custody. Finding the private appellants indulged in illegal mining/
transportation of minor mineral, the mining Inspectors prepared their
respective cases under Rule 53 of the Madhya Pradesh Minor Mineral
Rules, 1996 (hereinafter referred to as the '1996 Rules') and submitted
them before the Mining Officers with a proposal of compounding the
same for the amount calculated according to the concerned 1996 Rules.
The concerned Mining Officers submitted those cases before the
Collector, who approved the proposal. The violators accepted the decision
and deposited the amounts determined by the Collector for compounding
the cases. Their tractor/trolleys along with the minerals, which were
illegally excavated/transported, were released.
3.1 That after some time, a news was published in a daily
newspaper - Bhaskar on 8.9.2019 with respect to illegal excavation/
transportation of mineral sand from Chambal, Shivna and Retam and
other Tributary rivers flow from District Mandsuar and in surrounding
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places. It was revealed that due to illegal transportation of the minerals
and without payment of royalty, revenue loss is occurring. It was reported
that illegal mining, storage and transportation of mineral sand was being
carried out at large scale. Similar kind of information was also
subsequently published on 3.10.2019 in the daily newspaper - Bhaskar
in Mandsuar edition. It was also reported that despite the offences under
Sections 379 and 414, IPC and the offences under the MMDR Act and
the 2006 Rules were found attracted, necessary legal action has not
been taken and the violators were permitted to go on compounding the
offence under Rule 53 of the 1996 Rules. The learned Judicial Magistrate,
First Class, Mandsuar took note of the aforesaid information and having
taken note of the decision of this Court in the case of State (NCT of
Delhi) v. Sanjay, (2014) 9 SCC 772 taking the view that offences
under the IPC and offences under the MMDR Act are distinct and
different and it is permissible to lodge/initiate the proceedings for the
offences under the IPC as well as under the MMDR Act, the learned
Magistrate in exercise of powers conferred under Section 156(3), Cr.P.C.
(suo motu) directed to register criminal case under Section 156(3) Cr.P.C.
for initiation of investigation and for submitting of report after due
investigation is conducted. The learned Magistrate also directed the
concerned In-charge/SHOs of the concerned police stations to register
the first information report and a copy of the first information report be
sent to the learned Magistrate as per the provisions of Section 157, Cr.P.C.
3.2 That pursuant to the order passed by the learned Magistrate,
the In-charge/SHOs of the concerned police stations lodged separate
FIRs for the aforesaid offences for illegal mining/transportation of sand,
particulars of which are as under:
Sr.No.
MCRC NO.
FIR NO/DATE
POLICE
STATION
Date of Incident
1
49338/2019
234/16.11.2019
Nai Abadi
27.07.2019
2
49340/2019
554/16.11.2019
Y.D. Nagar
16.11.2019
3
49847/2019
564/17.11.2019
Y.D. Nagar
20.04.2019
4
49856/2019
280/16.11.2019
Afzalpur
30.08.2019
5
49859/2019
563/17.11.2019
Y.D. Nagar
20.04.2019
6
49861/2019
588/18.11.2019
Y.D. Nagar
24.08.2019
7
49963/2019
281/16.11.2019
Afzalpur
30.08.2019
8
49972/2019
238/18.11.2019
Nai Abadi
28.08.2019
9
50602/2019
137/17.11.2019
Daloda
25.05.2019
10
50610/2019
136/16.11.2019
Daloda
25.05.2019
11
50614/2019
139/17.11.2019
Daloda
10.06.2019
12
50627/2019
591/18.11.2019
Y.D. Nagar
13.06.2019
13
50636/2019
551/16.11.2019
Y.D. Nagar
02.04.2019
14
05648/2019
552/16.11.2019
Y.D. Nagar
02.04.2019
JAYANT ETC. v. THE STATE OF MADHYA PRADESH
[M. R. SHAH, J.]
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3.3 That thereafter the private appellants and others approached
the High Court to quash the aforesaid FIRs registered against them for
illegal mining/transportation of sand by submitting the applications under
Section 482, Cr.P.C. It was mainly contended on behalf of the private
appellants and other violators that in view of Bar under Section 22 of the
MMDR Act, the order passed by the learned Magistrate directing to
register the FIRs is unsustainable and deserves to the quashed and set
aside. It was also contended on behalf of the private appellants and
other violators that once there was compounding of offence in exercise
of powers under Rule 53 of the 1996 Rules and the violators paid the
amount determined by permitting them to compound the offence,
thereafter the Magistrate was not justified in directing to initiate fresh
proceedings which would be hit by the principle of "double jeopardy".
That by the impugned common judgment and order, the High Court has
dismissed all the aforesaid applications relying upon the decision of this
Court in the case of Sanjay (supra).
4. Feeling aggrieved and dissatisfied with the common impugned
judgment and order passed by the High Court in refusing to quash the
FIRs filed against the private appellants and other violators, the original
petitioners - violators have preferred the present appeals. Though, before
the High Court, the learned Public Prosecutor appearing on behalf of
the State of Madhya Pradesh supported the order passed by the learned
Magistrate directing to register/lodge FIRs, the State has preferred a
separate special leave petition challenging the impugned judgment and
order passed by the High Court confirming the order passed by the
learned Magistrate. It is very surprising that despite supporting the order
passed by the learned Magistrate before the High Court, the State of
Madhya Pradesh has preferred the special leave petition, which shall be
dealt with hereinbelow.
5. Shri Devadatt Kamat, learned Senior Advocate appearing on
behalf of the private appellants has made following submissions:
i) initiation of criminal proceedings and filing of respective FIRs
against the private appellants which have been filed/lodged pursuant to
the order passed by the learned Magistrate in exercise of powers under
Section 156(3), Cr.P.C. are hit by Section 22 and 23A of the MMDR
Act, as well as, Rule 53 of the 1996 Rules;
ii) on a plain reading of Section 22, cognizance of the offence can
be taken by the Magistrate only if there is a written complaint in that
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regard by the Mining Officer/authorised officer. In the present case,
admittedly, there is no written complaint made by the Mining Officer/
authorised officer;
iii) MMDR Act does not contemplate the taking of suo motu
cognizance by the Magistrate. The Magistrate does not have jurisdiction
under the MMDR Act to direct the Mining Officer/police officer incharge to register FIR under the penal provisions of the MMDR Act.
Heavy reliance is placed on the decision of this Court in the case of
Sanjay (Supra), as well as, in the case of Kanwar Pal Singh v. State
of U.P., Criminal Appeal No. 1920 of 2019, decided on December
18, 2019;
iv) Section 23A of the MMDR Act contemplates the compounding
of offence under the MMDR Act. Therefore, the Rules made under the
MMDR Act contain provisions for compounding of offence. Sub-section
2 of Section 23A places a bar on proceedings or further proceedings,
when the offences have been compounded under sub-section (1).
Therefore, once the proceedings have been compounded under the Act
or Rules made thereunder, no further proceedings can lie. In the present
case, the offences under the MMDR Act as against the private appellants
were permitted to be compounded by the competent authority.
5.1 Making the above submissions and relying upon the aforesaid
decisions of this Court, it is prayed to allow the present appals and quash
the criminal proceedings initiated against the private appellants for the
offences under Sections 379 and 414, IPC and Sections 4/21 of the
MMDR Act.
6. Learned counsel appearing on behalf of the State of Madhya
Pradesh has supported the private appellants - violators and has submitted
that the order passed by the learned Magistrate directing to lodge/register
FIRs for the offences under Sections 379 and 414, IPC and Sections
4/21 of the MMDR Act is unsustainable, though and as observed
hereinabove, the learned Public Prosecutor appearing on behalf of the
State of Madhya Pradesh supported the order passed by the learned
Magistrate before the High Court.
One of the grounds stated in the memo of appeal is that the order
passed by the learned Magistrate, confirmed by the High Court, impinges/
affects the powers of the authorised person to compound the offence
under Rule 18 of the 2006 Rules.
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7. Before submissions made on behalf of the respective parties
are considered, the decision of this Court in the case of Sanjay (supra)
dealing with the provisions of the MMDR Act in which this Court
considered in detail the policy and object of the MMDR Act and the
Rules made thereunder, is required to be referred to.
7.1 The question which arose for consideration before this Court
was, whether the provisions contained in Sections 21, 22 and other
Sections of the MMDR Act operate as bar against prosecution of a
person who has been charged with allegation which constitutes offences
under Sections 379/414 and other provisions of the Penal Code (IPC).
The question which arose was, whether the provisions of the MMDR
Act explicitly or impliedly exclude the provisions of the Penal Code (IPC)
when the act of an accused is an offence both under the Penal Code
and under the provisions of the MMDR Act. This Court considered in
detail the policy, object and purpose of the MMDR Act in paragraphs 32
to 39, which read as under:
"32. The policy and object of the Mines and Minerals Act and
Rules have a long history and are the result of an increasing
awareness of the compelling need to restore the serious ecological
imbalance and to stop the damages being caused to the nature.
The Court cannot lose sight of the fact that adverse and destructive
environmental impact of sand mining has been discussed in the
UNEP Global Environmental Alert Service Report. As per the
contents of the Report, lack of proper scientific methodology for
river sand mining has led to indiscriminate sand mining, while weak
governance and corruption have led to widespread illegal mining.
While referring to the proposition in India, it was stated that sand
trading is a lucrative business, and there is evidence of illegal
trading such as the case of the influential mafias in our country.
33. The mining of aggregates in rivers has led to severe damage
to rivers, including pollution and changes in levels of PH. Removing
sediment from rivers causes the river to cut its channel through
the bed of the valley floor, or channel incision, both upstream and
downstream of the extraction site. This leads to coarsening of
bed material and lateral channel instability. It can change the
riverbed itself. The removal of more than 12 million tonnes of
sand a year from Vembanad Lake catchment in India has led to
the lowering of the riverbed by 7 to 15 cm a year. Incision can
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also cause the alluvial aquifer to drain to a lower level, resulting in
a loss of aquifer storage. It can also increase flood frequency and
intensity by reducing flood regulation capacity. However, lowering
the water table is most threatening to water supply exacerbating
drought occurrence and severity as tributaries of major rivers dry
up when sand mining reaches certain thresholds. Illegal sand
mining also causes erosion. Damming and mining have reduced
sediment delivery from rivers to many coastal areas, leading to
accelerated beach erosion.
34. The Report also dealt with the astonishing impact of sand
mining on the economy. It states that tourism may be affected
through beach erosion. Fishing, both traditional and commercial,
can be affected through destruction of benthic fauna. Agriculture
could be affected through loss of agricultural land from river erosion
and the lowering of the water table. The insurance sector is
affected through exacerbation of the impact of extreme events
such as floods, droughts and storm surges through decreased
protection of beach fronts. The erosion of coastal areas and
beaches affects houses and infrastructure. A decrease in bed load
or channel shortening can cause downstream erosion including
bank erosion and the undercutting or undermining of engineering
structures such as bridges, side protection walls and structures
for water supply.
35. Sand is often removed from beaches to build hotels, roads
and other tourism-related infrastructure. In some locations,
continued construction is likely to lead to an unsustainable situation
and destruction of the main natural attraction for visitors-beaches
themselves. Mining from, within or near a riverbed has a direct
impact on the stream's physical characteristics, such as channel
geometry, bed elevation, substratum composition and stability,
instream roughness of the bed, flow velocity, discharge capacity,
sediment transportation capacity, turbidity, temperature, etc.
Alteration or modification of the above attributes may cause
hazardous impact on ecological equilibrium of riverine regime.
This may also cause adverse impact on instream biota and riparian
habitats. This disturbance may also cause changes in channel
configuration and flow paths.
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36. In M. Palanisamy v. State of T.N (2012) 4 CTC 1, the
amended provisions of the Tamil Nadu Mines and Minerals
Concession Rules, 1959 was challenged on the ground that the
said Rules for the purpose of preventing and restricting illegal
mining, transportation and storage of minerals are ultra vires
constitutional provisions and the provisions of the Mines and
Minerals (Development and Regulation) Act, 1957. Upholding the
vires of the Rules, the Division Bench (one of us, Eqbal, J. as he
then was) of the Madras High Court, elaborately discussed the
object of restriction put in the illegal mining, transportation and
storage of minerals including sand and after considering various
reports observed thus: (CTC pp. 24-25, paras 21 & 23-24)
"21. In order to appreciate the issue involved in these writ petitions,
we may have to look at the larger picture - the impact of
indiscriminate, uninterrupted sand quarrying on the already brittle
ecological set-up of ours. According to expert reports, for
thousands of years, sand and gravel have been used in the
construction of roads and buildings. Today, demand for sand and
gravel continues to increase. Mining operators, instead of working
in conjunction with cognizant resource agencies to ensure that
sand mining is conducted in a responsible manner, are engaged in
full-time profiteering. Excessive in-stream sand and gravel mining
from riverbeds and like resources causes the degradation of rivers.
In-stream mining lowers the stream bottom, which leads to bank
erosion. Depletion of sand in the stream-bed and along coastal
areas causes the deepening of rivers and estuaries and
enlargement of river mouths and coastal inlets. It also leads to
saline water intrusion from the nearby sea. The effect of mining
is compounded by the effect of sea level rise. Any volume of
sand exported from stream-beds and coastal areas is a loss to the
system. Excessive in-stream sand mining is a threat to bridges,
river banks and nearby structures. Sand mining also affects the
adjoining groundwater system and the uses that local people make
of the river. Further, according to researches, in-stream sand
mining results in the destruction of aquatic and riparian habitat
through wholesale changes in the channel morphology. The ill
effects include bed degradation, bed coarsening, lowered water
tables near the stream-bed and channel instability. These physical
impacts cause degradation of riparian and aquatic biota and may
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lead to the undermining of bridges and other structures. Continued
extraction of sand from riverbeds may also cause the entire streambed to degrade to the depth of excavation.
* * *
23. The most important effects of in-stream sand mining on aquatic
habitats are bed degradation and sedimentation, which can have
substantial negative effects on aquatic life. The stability of sandbed and gravel-bed streams depends on a delicate balance between
stream flow, the sediments supplied from the watershed and the
channel form. Mining-induced changes in sediment supply and
channel form disrupt the channel and the habitat development
processes. Furthermore, movement of unstable substrates results
in downstream sedimentation of habitats. The affected distance
depends on the intensity of mining, particle sizes, stream flows,
and channel morphology.
24. Apart from threatening bridges, sand mining transforms the
riverbeds into large and deep pits; as a result, the groundwater
table drops leaving the drinking water wells on the embankments
of these rivers dry. Bed degradation from in-stream mining lowers
the elevation of stream flow and the floodplain water table, which
in turn, can eliminate water table-dependent woody vegetation in
riparian areas and decrease wetted periods in riparian wetlands.
So far as locations close to the sea are concerned, saline water
may intrude into the fresh waterbody."
37. In Centre for Public Interest Litigation v. Union of India
(2012) 3 SCC 1, this Court, while observing that the natural
resources are the public property and national assets, held as under:
(SCC p. 53, para 75)
"75. The State is empowered to distribute natural resources.
However, as they constitute public property/national asset, while
distributing natural resources the State is bound to act in
consonance with the principles of equality and public trust and
ensure that no action is taken which may be detrimental to
public interest. Like any other State action, constitutionalism
must be reflected at every stage of the distribution of natural
resources. In Article 39(b) of the Constitution it has been
provided that the ownership and control of the material
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resources of the community should be so distributed so as to
best subserve the common good, but no comprehensive
legislation has been enacted to generally define natural
resources and a framework for their protection. Of course,
environment laws enacted by Parliament and State Legislatures
deal with specific natural resources i.e. forest, air, water, coastal
zones, etc."
38. In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388, this Court
while considering the doctrine of public trust which extends to
natural resources observed as under: (SCC pp. 407-08 & 413,
paras 24-25 & 34)
"24. The ancient Roman Empire developed a legal theory
known as the 'Doctrine of the Public Trust'. It was founded
on the ideas that certain common properties such as rivers,
seashore, forests and the air were held by Government in
trusteeship for the free and unimpeded use of the general public.
Our contemporary concern about 'the environment' bear a very
close conceptual relationship to this legal doctrine. Under the
Roman law these resources were either owned by no one (res
nullius) or by everyone in common (res communious). Under
the English common law, however, the Sovereign could own
these resources but the ownership was limited in nature, the
Crown could not grant these properties to private owners if
the effect was to interfere with the public interests in navigation
or fishing. Resources that were suitable for these uses were
deemed to be held in trust by the Crown for the benefit of the
public. Joseph L. Sax, Professor of Law, University of
Michigan-proponent of the Modern Public Trust Doctrinein an erudite article 'Public Trust Doctrine in Natural
Resource Law: Effective Judicial Intervention', Michigan
Law Review, Vol. 68, Part 1, p. 473, has given the historical
background of the Public Trust Doctrine as under:
'The source of modern public trust law is found in a concept
that received much attention in Roman and English law-the
nature of property rights in rivers, the sea, and the seashore.
That history has been given considerable attention in the legal
literature and need not be repeated in detail here. But two
points should be emphasised. First, certain interests, such as
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navigation and fishing, were sought to be preserved for the
benefit of the public; accordingly, property used for those
purposes was distinguished from general public property which
the sovereign could routinely grant to private owners. Second,
while it was understood that in certain common propertiessuch as the seashore, highways and running water-''perpetual
use was dedicated to the public", it has never been clear
whether the public had an enforceable right to prevent
infringement of those interests. Although the State apparently
did protect public uses, no evidence is available that public
rights could be legally asserted against a recalcitrant
government.'
25. The Public Trust Doctrine primarily rests on the principle
that certain resources like air, sea, waters and the forests
have such a great importance to the people as a whole that
it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature,
they should be made freely available to everyone irrespective
of the status in life. The doctrine enjoins upon the
Government to protect the resources for the enjoyment of
the general public rather than to permit their use for private
ownership or commercial purposes. According to Professor
Sax the Public Trust Doctrine imposes the following
restrictions on governmental authority:
'Three types of restrictions on governmental authority
are often thought to be imposed by the public trust: first, the
property subject to the trust must not only be used for a
public purpose, but it must be held available for use by the
general public; second, the property may not be sold, even
for a fair cash equivalent; and third the property must be
maintained for particular types of uses.'
* * *
34. Our legal system-based on English common lawincludes the Public Trust Doctrine as part of its
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and
enjoyment. Public at large is the beneficiary of the
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seashore, running waters, air, forests and ecologically
fragile lands. The State as a trustee is under a legal duty
to protect the natural resources. These resources meant
for public use cannot be converted into private
ownership."
39. In Intellectuals Forum v. State of A.P (2006) 3 SCC 549,
this Court while balancing the conservation of natural resources
vis-à-vis urban development observed as under: (SCC p. 572, para
67)
"67. The responsibility of the State to protect the environment
is now a well-accepted notion in all countries.