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2010 DIGILAW 410 (GUJ)

Vishalbhai Rameshbhai Khurana v. State of Gujarat

2010-09-03

AKIL KURESHI

body2010
Judgment Akil Kureshi, J.—This group of petitions involve similar questions of law though individual facts are slightly different. They, therefore, are heard together and are being disposed of by this common judgment. 2. Facts may be noticed from Criminal Misc. Application No. 5230 of 2010. In the said petition, the petitioners-original accused have challenged the legality and validity of criminal complaint bearing C.R. No. 326/08 filed before Bhuj Taluka Police Station by Geologist of the State Government. In the complaint, it is stated that from the letter of the Mamlatdar it was learnt that in the sim of village Angiya, mineral (black trap) was being excavated by M.S. Khurana Engineering Company. Upon spot inspection, one JCB Machine and a dumper loaded with black-trap were found at the spot which were seized by the Police. Supervisor of the Company was present. His statement and the statement of one labourer were recorded. Statement of driver of the dumper was also recorded. They could not produce necessary licence for such mining. It was found that such illegal mining was being carried out at three different places. The Geologist estimated total cost of illegal mining of minerals at Rs. 21,74,040/-. He, therefore, lodged the said complaint with the police for alleged commission of offence under Section 379 read with Section 114 of the Indian Penal Code and under Sections 21(1), 21(2), 21(3) and 21(5) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter to be referred to as ‘the Act’) and under the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 (hereinafter referred to as ‘the Rules’). Though the petition was filed at the stage when the investigation was not yet completed, it appears that subsequently, the police has completed the investigation and filed charge sheet before the Magistrate. The Magistrate, however, has not formally taken cognizance of the offence. 3. For rest of the petitions, it would not be necessary to take detailed account of the allegations in the complaint. However, bare facts may be noticed. 3.1 In Criminal Misc. Application No. 5228 of 2010, the petitioners are the original accused in complaint bearing C.R. No. I-130/08 filed by the Geologist at Nakhratrana Police Station on 26.8.08 alleging offences punishable under Section 379 read with section 114 of the Indian Penal Code and under Sections 21(1), 21(2), 21(3) and 21(5) of the Act. 3.1 In Criminal Misc. Application No. 5228 of 2010, the petitioners are the original accused in complaint bearing C.R. No. I-130/08 filed by the Geologist at Nakhratrana Police Station on 26.8.08 alleging offences punishable under Section 379 read with section 114 of the Indian Penal Code and under Sections 21(1), 21(2), 21(3) and 21(5) of the Act. Investigation was carried out and completed on 12.9.09 with filing of charge sheet. Criminal Case No. 479/09 is pending before the learned Magistrate. The Magistrate, however, has not formally taken cognizance of the offence. 3.2 In Criminal Misc. Application No. 3726 of 2010, the petitioner is original accused No. 4 in complaint bearing C.R. No. II-120 of 2009 registered at Bhagvadar Police Station by the Royalty Inspector of the State of Gujarat alleging offences punishable under section 379 read with section 114 of the Indian Penal Code and under section 4(1)of the Act. No charge sheet has been filed so far in this case. 3.3 Criminal Misc. Application No. 14330 of 2009 arose out of a complaint bearing C.R. No. II-120 of 2009. The petitioner in the said application is original accused No. 1. 3.4 Criminal Misc. Application No. 13726 of 2009 also arose out of complaint bearing C.R. No. II-120 of 2009 where the petitioner is original accused No. 2. 3.5 Criminal Misc. Application No. 1671 of 2010 arose out of complaint bearing C.R. No. II-120 of 2009 registered at Bhagvadar Police Station where the petitioners are the original accused. 3.6 Special Criminal Application No. 1737 of 2008 arose out of complaint bearing C.R. No. II-3028/2008 filed before Sayla Police Station by the Incharge Mines Supervisor, alleging offence punishable under Sections 4(1) and 21(1) of the Act. No charge-sehet has been filed in this complaint so far. 3.7 Special Criminal Application No. 674 of 2008 pertains to complaint bearing C.R. No. II-3035 of 2008 filed by the Assistant Geologist at Sayla Police Station for offence punishable under Section 379 of the Indian Penal Code and under Section 4(1) and 21 of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. Charge sheet has not yet not been filed in this case. Charge sheet has not yet not been filed in this case. 3.8 Special Criminal Application No. 675 of 2008 praying for quashing of complaint being C.R. No. II-3039 of 2008 filed by the Assistant Geologist at Sayla Police Station alleging offence punishable under Section 379 of the IPC, under Section 4(1) and 21 of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. No charge sheet has been filed. 3.9 Special Criminal Application No. 676 of 2008 arose out of complaint bearing C.R. No. II-3038 of 2008 filed by the Assistant Geologist at Sayla Police Station alleging offences punishable under Section 379 of the IPC, under Section 4(1) and 21 of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. Charge sheet has not yet been filed in this case. 3.10 Special Criminal Application No. 677 of 2008 arose out of complaint bearing C.R. No. II-3037 of 2008 filed by the Assistant Geologist at Sayla Police Station alleging offences punishable under Section 379 of the IPC, under Section 4(1) and 21 of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. Charge sheet has not yet been filed in this case. 3.11 Special Criminal Application No. 678 of 2008 arose out of complaint bearing C.R. No. II-3036 of 2008 filed by the Assistant Geologist at Sayla Police Station alleging offences punishable under Section 379 of the IPC, under Section 4(1) and 21 of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. Charge sheet has not yet been filed in this case. 3.12 Special Criminal Application No. 1938 of 2008 arose out of complaint bearing C.R. No. II-3027 of 2008 filed before Sayla Police Station by the Mines Supervisor, Incharge for offences punishable under Section 379 of the IPC, under Section 4(1) of the Act and under Rule 42 of the Gujarat Minor Mineral Rules. Charge sheet has not yet been filed in this case. 3.13 Criminal Misc. Application No. 8540 of 2010 arose out of complaint bearing C.R. No. II-3017 of 2010 registered at Kodinar Police Station by the Royalty Inspector alleging offences punishable under Section 4(1) and 21 of the Act and Rules 3, 5,6, 8 and 13 of the Rules. Charge sheet is not yet filed in this case. 3.14 Criminal Misc. 3.13 Criminal Misc. Application No. 8540 of 2010 arose out of complaint bearing C.R. No. II-3017 of 2010 registered at Kodinar Police Station by the Royalty Inspector alleging offences punishable under Section 4(1) and 21 of the Act and Rules 3, 5,6, 8 and 13 of the Rules. Charge sheet is not yet filed in this case. 3.14 Criminal Misc. Application No. 1360 of 2010 arose out of complaint bearing C.R. No. II-3097 of 2008 registered at Kodinar Police Station on 7.7.2010 by the Mamlatdar, Kodinar alleging offences punishable under Section 4(1) and 21 of the Act and under Rules 3, 5, 6, 8 and 13 of the Rule. Charge sheet is not yet filed in this case also. 3.15 Criminal Misc. Application No. 1359 of 2010 arose out of complaint bearing F.I.R.No. II-38 of 2010 registered at Bharuch Taluka Police Station by the Assistant Geologist alleging offences punishable under Section 4(1) and 21 of the Act and under Rules 3, 5, 6, 8 and 13 of the Rules. Charge sheet is not yet filed in this case also. 3.16 Criminal Misc. Application No. 8181 of 2010 arose out of C.R. No. II-3166 of 2009 registered at Kodinar Police Station by the Mines Supervisor (Incharge) alleging offences punishable under Section 4(1) and 21 of the Act and also under rules 3, 5, 6, 8 and 13 of the Rules. No charge sheet is filed so far in this case. 3.17 Criminal Misc. Application No. 10381 of 2010 arose out of C.R. No. II-3073 of 2010 registered at Joravarnagar Police Station for the offences punishable under Section 4(1) and 21 of the Act. Charge sheet is not yet filed. 3.18 Special Criminal Application No. 1675 of 2010 arose out C.R. No. I-117 of 2010 filed before Halvad Police Station by the Incharge Assistant Geologist for the offences punishable under section 379 read with Section 114 of the Indian Penal Code and under Section 4(1) of the Act wherein Charge-sheet is not yet filed. 3.19. Special Criminal Application No. 1674 of 2010 arose out C.R. No. I-116 of 2010 filed before Halvad Police Station by the Incharge Assistant Geologist for the offences punishable under Section 379 read with Section 114 of the Indian Penal Code and under Section 4(1) of the Act wherein Charge-sheet is not yet filed. 4. 3.19. Special Criminal Application No. 1674 of 2010 arose out C.R. No. I-116 of 2010 filed before Halvad Police Station by the Incharge Assistant Geologist for the offences punishable under Section 379 read with Section 114 of the Indian Penal Code and under Section 4(1) of the Act wherein Charge-sheet is not yet filed. 4. From the perusal of the impugned complaints, it can be seen that mainly offences alleged against the petitioners are those punishable under the Act and the Rules made thereunder. In some cases, offences under the Indian Penal Code, in particular, Section 379 thereof are also alleged. Majority of the cases are pending investigation before the Police. In some cases, investigation has been completed. Police has also filed charge sheet and the Competent Magistrates are in the process of taking cognizance of such offences on such charge sheets. 5. Three questions of considerable importance arise in this group of petitions: 1. Whether Section 22 of the Act would debar even lodging an FIR before the police with respect to the offences punishable under the said Act and the Rules made thereunder ? 2. In case such FIRs are not debarred and the police are permitted to investigate, can the concerned Magistrate take cognizance of the offences on a police report ? 3. What would be the effect on the offences punishable under the Indian Penal Code in view of the provisions contained in the Act ? 6. Counsel for the petitioners vehemently contended that in view of the bar contained in Section 22 of the Act, no Magistrate can take cognizance of the offence punishable under the Act and the Rules framed there under otherwise than on a complaint filed by the person authorized in this behalf. They point out that term ‘complaint’ has not been defined under the Act and must, therefore, be understood as defined in the Criminal Procedure Code (the Code for short). 6.1 Some of the Counsel also contended that not only the cognizance by the Magistrate, even filing of an FIR would be hit by Section 22 of the Act. 6.2 It was contended that in any case, upon completion of the investigation, no cognizance could be taken on a mere police report under Section 173 of the Criminal Procedure Code. 6.3. In support of these contentions, reliance was placed on the following decisions : 1. 6.2 It was contended that in any case, upon completion of the investigation, no cognizance could be taken on a mere police report under Section 173 of the Criminal Procedure Code. 6.3. In support of these contentions, reliance was placed on the following decisions : 1. A decision in the case of Balalsubramaniam, Ramasamy, Vijayakumar and Annadhurai vs. The State, by the Madras High Court in Cri.O.P. No. 27333 of 2007 and M.P.No. 1 of 2007. 2. Decision in the case of Sanjay vs. State, by the Delhi High Court rendered in WP (Cri.) No. 582/2008 and Cri.M.A.5393/2008. 3. In the case of Manish Khemka vs. State of Jharkhand, 2009 CriLJ 3370. 4. In the case of V. Ranga Ramu vs. State of Karnataka, 1999 CriLJ 561. 5. In the case of K. Srinivas vs. State of Karnataka, 1995 CriLJ 3810. 6. In the case of Chhotelal Chaudhury vs. State of West Bengal, 2008 CriLJ 3655. Detailed reference to these cases will be made at a slightly later stage. 7. On the other hand, learned Public Prosecutors appearing for the State opposed the petitions. They contended that Section 22 of the Act does not prohibit filing of a police complaint. Investigating powers of the police are not taken away. 7.1 It was further contended that upon completion of the investigation, if the police files a report, such investigation having been initiated on a complaint by the competent authority of the State under the Act, such report must be treated to be a complaint by the competent officer and the Magistrate can thus take cognizance thereon. 7.2. Counsel for the State relied on the following decisions in support of their contentions: 1. Decision of the Jharkhand High Court in the case of Girdharilal Agarwal vs. State of Jharkhand, in W.P. (Cr.) No. 277 of 2006 with W.P. (Cr.) No. 252 of 2006 decided on 2.9.2009. 2. Decision in the case of Sanjay v. State, by the Delhi High Court rendered in WP (Cri.) No. 582/2008 and Cri.M.A.5393/2008. 3. Decision dated 14.9.2006 in the case of Smt. Bimla Gupta and Shri Rakesh Chandra vs. State & Anr. 8. To appreciate the rival contentions, it would be necessary to refer to some of the provisions of the Act as well as the Code. 9. 3. Decision dated 14.9.2006 in the case of Smt. Bimla Gupta and Shri Rakesh Chandra vs. State & Anr. 8. To appreciate the rival contentions, it would be necessary to refer to some of the provisions of the Act as well as the Code. 9. The Act was enacted to provide for the development and regulations of mines and minerals under the control of the Union. The Statement of objects and reasons for enactment of the said Act provides as under : “The differentiation made between petroleum and other minerals in items 53 and 54 of the Union List has rendered separate enactments for the two necessary. The present Bill deals only with minerals other than petroleum. At present both are dealt with under the Mines and Minerals (Regulation and Development) Act, 1948 (53 of 1948).” Section 4 of the Act pertains to prospecting or mining operations to be under licence or lease. Section 4 reads as follows:— “4. Prospecting or mining operations to be under licence or lease. (1) No. person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, a mining lease granted under this Act and the rules made thereunder: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with terms and conditions of a prospecting licence or mining lease grant before the commencement of this Act which is in force at such commencement: Provided further that nothing in this Sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of Section 617 of the Companies Act, 1956; Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease mining concession or by any other name) in force immediately before the commencement of this Act in the Union territory of Goa Daman and Diu. (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder: (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under section 18, undertake reconnaissance, prospecting or mining operations with respect to any minerals specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease.” Section 21 of the Act provides for penalties and reads as under: “21. Penalties ‘(1) Whoever contravenes the provisions of Sub-section (1) or Sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty five thousand rupees, or with both. (2) Any Rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of Sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorized in this behalf by that Government and the State Government or such authorized authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. (4A) Any mineral, tool, equipment, vehicle or any other thing seized under Sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Sub-section (1) and shall be disposed of in accordance with the directions of such court. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under Sub-section (1) shall be cognizable.” Section 22 of the Act pertains to cognizance of the offence and reads as follows: “22. Cognizance of offence – No. Court shall take cognizance of any offence punishable under this Act or any rules made there under except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” Section 23 of the Act pertains to offences by companies and provides, inter alia, for vicarious liability of every person who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company for the offence committed by the company. Section 23A of the Act pertains to compounding of offences which reads as follows: “23A. Compounding of offences. Section 23A of the Act pertains to compounding of offences which reads as follows: “23A. Compounding of offences. (1) Any offence punishable under this Act or any Rule made there under may, either before or after the institution of the prosecution, be compounded by the person authorized 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; Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) 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.” Section 23B of the Act pertains to power to search any premises where the authority has reason to believe that any mineral has been raised in contravention of the Act or the Rules made there under. Section 23C pertains to power of the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 24 pertains to power of entry and inspection. 10. It can thus be seen that in the said Act, detailed provisions have been made for controlling mining of minerals and for granting licence for such purpose. Section 4 in particular prohibits reconnaissance, prospecting or mining operations in any area except under and in accordance with the terms and conditions of reconnaissance permit or a licence or lease that may have been granted. Section 21, as already noted is a penal provision. Any person contravening the provisions of Sub-section (1) or (1A) of Section 4 is liable to be punished for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees or with both. Sub-section (6) of Section 21 specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, an offence under Sub-section (1) shall be cognizable. 11. With this overview of the Act in mind, one may focus on the provision of the Act which is at the centre of controversy in this group of petitions i.e. Section 22. Sub-section (6) of Section 21 specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, an offence under Sub-section (1) shall be cognizable. 11. With this overview of the Act in mind, one may focus on the provision of the Act which is at the centre of controversy in this group of petitions i.e. Section 22. As already noted, said Section provides that no court shall take cognizance of any offence punishable under the Act or any rules made there under except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. Thus for a court to take cognizance of an offence punishable under the Act or the Rules made there under, it is essential that the complaint has to be filed by a person authorized in this behalf by the Central Government or the State Government. This provision thus pertains to the stage where the Magistrate is to take cognizance and not at the stage where the First Information of the offence has to be lodged before the police. There is no prohibition under the Act or the Rules made there under to lodge a police complaint for any of the offences punishable under the Act or the Rules. The language used in section 22 of the Act cannot be stretched to debar even filing of an FIR before the police when it is prima facie found that offences punishable under the Act or under the Indian Penal Code or both have been committed. 12. As already noted, Sub-section (6) of Section 21 makes offence punishable under Sub-section (1) cognizable. If the interpretation of the counsel for the petitioners that Section 22 debars even filing of a complaint before the police is accepted, the said provision contained in Sub-section (6) of Section 21 would be rendered otiose. The Legislature fully conscious of the provisions of Section 22 nonetheless made the offence punishable under Sub-section (1) of Section 21 of the Act cognizable. Cognizable offence is one in which as provided by the Code, a police officer may in accordance with the First Schedule of the Code arrest the accused without a warrant. Under Section 154 of the Code, every information relating to commission of cognizable offence is required to be reduced in writing by officer in charge of a police station. Cognizable offence is one in which as provided by the Code, a police officer may in accordance with the First Schedule of the Code arrest the accused without a warrant. Under Section 154 of the Code, every information relating to commission of cognizable offence is required to be reduced in writing by officer in charge of a police station. Under Section 156 of the Code, officer in-charge of the police station is authorized to inquire into any allegation of commission of cognizable offence without the order of the Magistrate. The entire set up of the Code contained in Section 2(c) defining cognizable offence, Section 154 requiring the officer in charge of a police station to register a complaint of commission of cognizable offence into writing and Section 156 empowering the police officer incharge of the police station to investigate into any allegation of commission of any cognizable offence without the order of the Magistrate would break down if Section 22 of the Act is understood as to prohibit even filing of an information before police of allegations of commission of offences punishable under the Act. 12.1 One may notice that Sub-section (6) of Section 21 of the Act was introduced by Amendment Act 37 of 1986. The portion of objects and reasons which can be related to addition of this provision reads as follows:— “2. The suggestions made from time to time have been considered and incorporated in the present Bill, which, inter alia, includes the following salient features, namely:— x x x x x x x x (vii) provision for increasing the quantum of punishment to curb illegal mining activities. 3. The Bill seeks to provide for the above objects.” It can thus be seen that to make the penal provisions of the Act more stringent, certain amendments were made which included Sub-section (6) of Section 21 making the offence punishable under Sub-section (1) of Section 21 cognizable. Prior to the Amendment Act 37 of 1986, there was no such provision. The Legislature with above intention introduced Sub-section (6) of Section 21 making the offence cognizable. 13. In the case of State of Karnataka vs. Pastor P. Raju, (2006) 6 SCC 728 , the Apex Court was considering somewhat similar question, however in slightly different background. Prior to the Amendment Act 37 of 1986, there was no such provision. The Legislature with above intention introduced Sub-section (6) of Section 21 making the offence cognizable. 13. In the case of State of Karnataka vs. Pastor P. Raju, (2006) 6 SCC 728 , the Apex Court was considering somewhat similar question, however in slightly different background. In that case, the accused were alleged to have committed offence punishable under Section 153-B of the Indian Penal Code by appealing to the members of Hindu community to get converted into Christianity. Before the High Court in the quashing petition, reliance was placed on Section 196(1-A) of the Criminal Procedure, which reads as under: “196. (1-A) No court shall take cognizance of (a) any offence punishable under Section 153-B or Sub-section (2) or Sub-section (3) of Section 505 of the Indian Penal Code, 1860 (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.” It was contended that in view of bar under Section 196(1-A), no complaint could have been lodged. In that context, the Apex Court held and observed as under: “8. A plain reading of this provision will show that no Court can take cognizance of an offence punishable under Section 153-B or Sub-section (2) or Sub-section (3) of Section 505 of the Penal Code or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The opening words of the Section are ‘No Court shall take cognizance’ and consequently the bar created by the provision is against taking of cognizance by the Court. There is no 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 CrPC. If a Criminal Case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) CrPC and no illegality of any kind would be committed.” 14. I am, therefore, of the opinion that Section 22 of the Act does not debar registration of FIR by the police on information being given with respect to offences under the said Act or the Rules made there under. 15. The question, however, is upon completion of the investigation by the police, can the Magistrate take cognizance of the offence on a police report ? This question would require the interpretation of Section 22 of the Act. This provision prevents the Magistrate from taking cognizance of the offence except upon a complaint in writing by an authorized officer. The term ‘complaint’ is not defined under the Act. Section 2(d) of the Code defines ‘complaint’ as follows:— “(d) ‘complaint’ means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report. Explanation : A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complaint;’ It can thus be seen that term ‘complaint’ does not include a police report. In view of the provisions contained in Section 22 of the Act, therefore, it is not open for a Magistrate to take cognizance of an offence punishable under the said Act or the Rules made there under on a police report. Mere filing of charge sheet before the Magistrate would not authorize him to take cognizance of the offence. Learned APPs, however, submitted that an investigation which has been undertaken by the Police must culminate into filing of a final report under Section 173 of the Code. It was, therefore, contended that upon such report, the Magistrate would under Section 190 of the Code be empowered to take cognizance of an offence. I am unable to accept this contention. Section 190 of the Code empowers the Magistrate to take cognizance of any offence upon any of the following three contingencies (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received form any person other than a police officer, or upon his own knowledge, that such offence has been committed. However, by virtue of Section 22 of the Act, the Magistrate is precluded from taking cognizance of any offence under the Act or the Rules made there under except upon a complaint in writing made by a person authorized in this behalf by the Central or the State Government. The said Act being a special law dealing with the development and regulation of mines and minerals under the control of the Union, such special provisions contained in Section 22 of the Act would prevail over the provisions contained in Section 190 of the Code. Thus, the second and the third eventualities upon which a Magistrate under Section 190 of the Code could take cognizance of offence, namely, upon police report or upon information received from any person other than a police officer or upon his own knowledge would not be available to the Magistrate for taking cognizance of the offence under the Act. Even with respect to power of the Magistrate to take cognizance of an offence upon receiving a complaint of facts, a further rider is added that such complaint should be filed only by a person authorized in this behalf by the Central or the State Government. If as suggested by the learned APPs it is held that the Magistrate even on a police report can take cognizance of an offence under the Act or the Rules made there under, the provisions of Section 22 of the Act would be rendered redundant and the entire purpose of introduction of such a requirement would be rendered ineffective. 16. Though the object for providing bar under Section 22 of the Act is not emerging from the statement of objects and reasons, the purpose behind such provision is not far to seek. The Act deals with complex issues of mining leases and mining operations. These are complex issues of facts and at times technical and scientific in nature. By very nature of things, large companies would be involved in mining operations and their officers and Directors would be exposed to criminal accusations if proper care is not taken to scan such accusations by an officer who would have special knowledge about such a technical field. Simultaneously, by very nature of things, stakes are likely to be high. State interest would also suffer if investigation is either not satisfactory or is lacking in certain technical aspects. Simultaneously, by very nature of things, stakes are likely to be high. State interest would also suffer if investigation is either not satisfactory or is lacking in certain technical aspects. Mining leases and licenses would necessarily be of highly technical nature. Section 22 would serve both the purposes. On one hand, it would filter out frivolous prosecution and on the other, take care of State interest by ensuring that satisfactory investigation has been carried out. It is, therefore, of great importance that the complaint in writing is filed by an officer authorized in this behalf by the State Government before the concerned Magistrate. This would also be in consonance with the purpose for which the said provision has been enacted. This legislative intent can be gathered also from Section 23A of the Act whereby any offence punishable under the Act or the Rules made there under either before or after the institution of the prosecution may be compounded by the person authorized under Section 22 to make a complaint to the Court with respect to that offence. On account of the inherent and intrinsic complexities of such issues, even power of compounding before or even after institution of the prosecution has been retained by the State and such powers are to be exercised by the authorized person alone. 17. In conclusion, it would appear that though for the offences alleged under the Act or the Rules made there under it would be open to the police to register an FIR upon receipt of information of commission of such offences, upon completion of investigation, the Magistrate is prevented from taking cognizance of the offences otherwise on a complaint by an authorized officer and certainly not on mere police report. This is, however, not to suggest that on the basis of the report of the Investigating Officer, the authorized person would not be in a position to file a complaint before the Magistrate relying on such material or the report of the investigating agency. 18. At this stage, it would be useful and necessary to refer to some of the decisions cited by both sides. 18. At this stage, it would be useful and necessary to refer to some of the decisions cited by both sides. 18.1 In the case of Balasubramaniam Balalsubramaniam, Ramasamy, Vijayakumar and Annadhurai vs. The State (Supra) of the Madras High Court relied on by the learned counsel for the petitioners, the facts were that the accused were involved in an FIR for offences punishable under Section 379 of the IPC as well as under Section 4(1A) of the Act and the rules made there under. They challenged the FIR before the High Court. Though the High Court found that such complaint was not maintainable in view of Section 22 of the Act, such conclusion was based on a concession, as can be seen from the following observations made in Para 8 of the said judgment: “8. As pointed out above the learned Government Advocate (Cri. Side) has conceded that the impugned First Information Report ought not to have been registered for the alleged violation of Sections 4(1)(A) and 21(1)(C)(ii) of the act in the absence of a valid complaint by an authorised person as contemplated under Section 22 of the Act. Hence the First Information Report as far as it relates to the offences under Sections 4(1)(A) and 21(1)(C)(ii) of the Act is concerned has to be quashed and accordingly quashed.” The learned Judge, however, was of the opinion that offence under Section 379 of the IPC could be validly investigated into. 18.2 The case of Sanjay v. State (Supra) by the Delhi High Court rendered in WP (Cri.) No. 582/2008 and Cri.M.A.5393/2008, on which both sides have placed reliance arose in the background wherein the accused had filed a quashing petition. They were facing criminal complaint for offence punishable under Section 379 of IPC and Section 21 of the Act. In Para 12, the learned Judge posed the question in following manner : “12. I have given my thoughtful consideration to the rival submissions. They were facing criminal complaint for offence punishable under Section 379 of IPC and Section 21 of the Act. In Para 12, the learned Judge posed the question in following manner : “12. I have given my thoughtful consideration to the rival submissions. The issues which arises for consideration in this case are three fold: i.e. (i) whether the police could have registered an FIR in this case, (ii) whether a cognizance can be taken by the concerned Magistrate on the basis of a Police report and (iii) Whether a case of theft was made out for permitting registration of an FIR under Section 379/411 of the Indian Penal Code.” Repelling the contention of the petitioners that in view of Section 22 of the Act, filing of FIR was barred, the learned Judge observed as follows : “14. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that the police cannot take cognizance thereof.” In conclusion, the learned Judge held as under: “18. In view of the aforesaid and taking into consideration the provisions contained under Section 21(6) of the said Act I hold that : i. The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case; ii. However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which may be filed along with the police report; iii. Since the offence of mining of said without permission is punishable under Section 21 of the said Act, the question of said offence being an offence under Section 379 IPC does not arise because the said Act makes illegal mining as an offence only when there is no permit/licence for such extraction and a complaint in this regard is filed by an authorized officer.” I have discussed the matter independently and have reached to the same conclusion as the learned Judge in Para 18(i) and (ii) of the above judgment. 18.3 In the case of Manish Khemka vs. State of Jharkhand, 2009 CriLJ 337, the Court was concerned with a case where FIR was filed for offence under Section 379 and 420 of the IPC and certain State Rules framed under the Act. The learned Judge came to the following conclusion : “14. Having noticed all the provisions as mentioned above, it can conclusively be said that offences relating to storage, transportation, transaction, etc. of the minerals in contravention of the provision of the Mines and Minerals (Development and Regulation) Act, 1957 and also the rules of Jharkhand Minerals Dealers’ Rules, 2007 came within the purview of the said Act and Rules and as such any investigation, inquiry or trial shall be governed by the Special Law and not under the general law. Therefore, any prosecution launched by the informant not by way of complaint but by way of information to the police is quite illegal. In other words, instant prosecution can be said to be non est in the eye of law and hence, it is not sustained in law.” With respect, I am unable to concur with the said view for the reasons already recorded. 18.4 In the case of V. Ranga Ramu vs. State of Karnataka, 1999 CriLJ 561 (Supra), the learned Judge was dealing with a quashing petition. The accused were facing offence punishable under the Notaries Act which Act also contained similar provision under Section 13 which provides that no Court shall take cognizance of any offence committed by a notary in exercise of or purported exercise of his functions under the said Act save upon complaint in writing made by an officer authorized by the Central Government or a State Government by general or special order. The learned Judge was pleased to quash the complaint on the ground that the same was filed by a police officer and it was not shown that he was authorized to file such a complaint. Significantly, this was a case where charge sheet was already filed and it was in this context that the term complaint by the police was being referred to. 18.5. The case of K. Srinivas vs. State of Karnataka, 1995 CriLJ 3810 (Supra) arose in the background of a quashing petition. Significantly, this was a case where charge sheet was already filed and it was in this context that the term complaint by the police was being referred to. 18.5. The case of K. Srinivas vs. State of Karnataka, 1995 CriLJ 3810 (Supra) arose in the background of a quashing petition. The accused were facing allegations of commission of offences punishable under Section 447, 379 read with Section 551 of the IPC as also under Section 4 of the Act. The learned Judge was of the opinion that complaint before police was barred by Section 22 of the Act and if investigation was permitted and charge sheet allowed to be filed, the same would be merely a scrap of paper and the Magistrate would not be in a position to take cognizance of the offences. The learned Judge therefore quashed the FIR. I am in respectful disagreement with the view taken by the learned Judge for the reasons already noted. 18.6 The case of Chhotelal Chaudhury vs. State of West Bengal, 2008 CriLJ 3655 (Supra) does not touch the issues arising in the cases on hand since it was a case where offences alleged were only those punisahble under the Indian Penal Code. The observations and conclusion therein, therefore, would be of no assistance here. 19. Coming to the authorities cited by the learned APP, in the case of Girdharilal Agarwal vs. State of Jharkhand (Supra), the Court was concerned with Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 which made similar provision of no cognizance except on a complaint made by a Board or any officer authorized in this behalf by it or by a person after giving notice of not less than 60 days in the manner prescribed. It was in this context, the learned Judge held that the Magistrate is entitled to take cognizance of offence on the basis of a complaint filed by an authorized officer. The learned Judge held as under: “So far as question of taking cognizance of the offence is concerned, it be observed that the Magistrate can take cognizance of the offence on the basis of complaint of an authorized officer which may be filed along with the police report. The learned Judge held as under: “So far as question of taking cognizance of the offence is concerned, it be observed that the Magistrate can take cognizance of the offence on the basis of complaint of an authorized officer which may be filed along with the police report. Thus, both the applications being devoid of any merit are hereby dismissed.” It can thus be seen that it was a case where the Court countenanced the Magistrate taking cognizance on a complaint filed by the authorized officer which contained the police report. 19.1 In the case of Smt. Bimla Gupta (Supra), the learned Judge of the Delhi High Court was examining the provisions of the Electricity Act, 2003 which also has similar provision in Section 151. The learned Judge held as under : “14. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that the police cannot take cognizance thereof.” 20. This brings me to the question of offences punishable under the Indian Penal Code. The same are undoubtedly not covered by the prohibition of Section 22 of the Act. Registering of FIR with respect to such offences or even filing of charge sheet by the police before the competent Magistrate, therefore, cannot be termed as impermissible. In a given case, situation may arise where the act which may be punishable under the said Act is also an offence under the Indian Penal Code and may even be a graver offence. For example, offence of theft is defined in Section 378 of the IPC. Simple theft is punishable under Section 379 of the IPC with imprisonment of either description for a term which may extend to three years or with fine, or with both. Section 382 of the IPC prescribes punishment for theft after preparation made for causing death, hurt or restraint in order to committing of the theft and makes such offence punishable with rigorous imprisonment which may extend to ten years and fine. Situations may arise where in addition to contravention of any of the provisions of the Act and the Rules made there under, the accused may be charged with offence punishable under Section 382 of IPC if ingredients therein are satisfied. Situations may arise where in addition to contravention of any of the provisions of the Act and the Rules made there under, the accused may be charged with offence punishable under Section 382 of IPC if ingredients therein are satisfied. There is nothing in the Act or in the Rules for me to hold that an FIR with respect to such offence or charge sheet by the police upon conclusion of investigation would be barred. Of course, protection against double jeopardy flowing from Article 20 of the Constitution and section 26 of the General Clauses Act would have to be taken care of. In this context, I may refer to a decision of the Apex Court in the case of State of Bihar vs. Murad Ali Khan, 1989 CrLJ 1005 which dealt with a situation wherein the accused were facing accusations of offence punishable under Section 429 of the Indian Penal Code as well as under Section 9(1) read with Section 51 of the Wild Life (Protection) Act. It was observed that in order that the prohibition is attracted the same act must constitute an offence under more than one Act. It was concluded that ‘it is, however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under 429, IPC, even assuming that the two offences are substantially ‘the same offence’. Suffice it to notice, prima facie, that the ingredients of an offence under Section 3(1) read with Section 5(1) of the Act require for its establishment certain ingredients which are not part of the offence under Section 429 and vice-versa.” 21. In the result, I find that :— 1. Section 22 of the Act does not prohibit registering an FIR by the police on information being given with respect to offences punishable under the said Act or the Rules made there under, 2. It is, however, not open for the Magistrate to take cognizance of the offence punishable under the Act or the Rules made there under on a mere charge sheet filed by the police. It would, however, be open for the officer authorized by the State or the Central Government in this behalf to file a complaint in writing before the Magistrate relying upon the investigation carried out by the police and the compliant may also include the papers of police investigation. 3. It would, however, be open for the officer authorized by the State or the Central Government in this behalf to file a complaint in writing before the Magistrate relying upon the investigation carried out by the police and the compliant may also include the papers of police investigation. 3. With respect to offences punishable under the Indian Penal Code, no such bar as indicated in Para (2) would apply. 22. In so far as the petitions where only FIRs have been registered by the police and no charge sheet is filed, they must fail. In so far as the cases where police investigation has been concluded and charge sheets have been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports. 23. In the result, Criminal Misc. Application Nos. 5230 of 2010 and 5228 of 2010 wherein charge-sheets have been filed, are disposed of in view of the observations and directions contained in Paras 21 and 22 of this judgment. Rest of the petitions are dismissed. Interim relief is vacated. 24. At the request made on behalf of the petitioners, this judgment shall stand stayed for four weeks.