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2024 DIGILAW 2131 (GUJ)

Jivanbhai Merabhai Algotar v. State Of Gujarat

2024-12-04

SANDEEP N.BHATT

body2024
JUDGMENT : (Sandeep N. Bhatt, J.) 1. By way of this application under Section 482 of the Code of Criminal Procedure, the applicants have prayed for quashing and setting aside the First Information Report (‘FIR’, for short) being FIR C.R. No.11211050230195 of 2023 dated 16.06.2023 registered with Thangadh Police Station, Surendranagar, for the offences under Sections 379 and 114 of the Indian Penal Code, Sections 4(1) and 4(1)(A) of Mines and Minerals (Regulations and Development) Act, 1957 and under Section 3 and 21 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, 2016, 2017, which is ultimately culminated into Sessions Case No.44/2023 pending before the Court of learned Sessions Court, Surendranagar. 2. With consent of learned advocates for the parties, the matter is taken up for final hearing. Hence, Rule. Learned Additional Public Prosecutor Mr. Maheta waives service of notice of Rule on behalf of respondent – State. 3. It is the case of the applicants that the police made such allegations against them that on dt.10/06/2023, the applicants were riding the dumper filled in after mining the above said valuable minerals from the spot location. It is the case of the applicants that the said dumper was not owned by them or taken on lease, but the said dumper was owned by one of their relative, and they went on the spot location only to convince the police authorities present there, as a result of which the police authorities present there got excited on the applicants, and registered the impugned F.I.R. on the present applicants. 3.1 The applicants submit that thereafter, on dt.16/06/2023, applicant no. 2 Ganpatbhai Ambalal Patel, who resides at Gandhiangar, and he is having lease at Jamwadi, and near him, the farm of applicant no. 1 is situated, and therefore the applicant/accused no. 1 and 2 are friends and neighbors, and therefore applicant/accused no. 2 requested applicant/accused no. 1 to take care of his lease work and labors. And thereafter, on dt. 9/6/2023, the geologists visited the lease land spot location and issued a penalty to the applicant/accused no. 2 having his lease land at the spot location, and the applicant/accused no. 2 clarifies that the lease is not regarding any mining and it is for stone, and the applicant/accused no. 2 has not executed any power of attorney or any type of document or deed in favor of applicant/accused no.1. 2 having his lease land at the spot location, and the applicant/accused no. 2 clarifies that the lease is not regarding any mining and it is for stone, and the applicant/accused no. 2 has not executed any power of attorney or any type of document or deed in favor of applicant/accused no.1. 3.2 After registering of the FIR, ultimately the case culminated into Sessions Case No.44/2023 pending before the Court of learned Sessions Court, Surendranagar. 4.1 Heard learned advocate Mr. Hardik Y. Kothari for the applicants has submitted that the impugned FIR is nothing but abuse of process of law as well as the allegations made against the present applicants in the FIR are vexatious and concocted and in fact the applicants are victims. It is further submitted that if the FIR is not quashed and set aside, the applicants would have to face the trial unnecessary and that would amount to harassment of the applicants. He has submitted that even otherwise, the complainant has lodged the complaint belatedly and the inordinate delay is not explained by the complainant satisfactorily. 4.2 In support of his submissions, he has relied upon the judgment of the Hon’ble High Court of Madhya Pradesh reported in (2009) M.P. 264, wherein, it is held that the order to refuse to take cognizance and release of accused does not amount to charges, or tried, or convicted or acquitted under Section 300 of the Cr.P.C. and therefore, submits that, to take even when cognizance is absence of complaint of competent public servant, the defect may be cured and a complaint may again be filed before the cognizance in same case. 4.3 Learned advocate Mr. Kothari for the applicants submitted that in view of provisions of Section 22 of the Mines and Minerals (Regulations and Development) Act, 1957, the Police has no power to investigate the offence punishable under Section 4 of the Mines and Minerals (Regulations and Development) Act, 1957. Section 22 of Mines and Minerals (Regulations and Development) Act, 1957, reads as under: “22. Section 22 of Mines and Minerals (Regulations and Development) Act, 1957, reads as under: “22. Cognizance of offences.- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government of the State Government.” 4.4 While referring the aforesaid Section 22 of the Mines and Minerals (Regulations and Development) Act, 1957, learned advocate submitted that since the cognizance of the offence under Section 4 of the Mines and Minerals (Regulations and Development) Act, 1957, can be taken by the Court only, upon complaint in writing made by person authorized in this behalf by Central Government or State Government, police has no power to investigate the said offence on the strength of the FIR. He submitted that in similar set of facts, while deciding the Criminal Miscellaneous Application No.12032 of 2017, vide judgment dated 03.12.2018, the Co-ordinate Bench of this Court was pleased to quash the prosecution based on police report for the offence punishable under Section 4 of the Mines and Minerals (Regulations and Development) Act, 1957. 5. Learned Additional Public Prosecutor Mr. Maheta for the respondent - State vehemently opposed the petition but could not point out that mandatory provision of Section 22 of the Act was observed in its true spirit by the authority or not. 5.1 Learned Additional Public Prosecutor Mr. Maheta vehemently submitted that the offence is in respect of huge scam amounting to large sum of rupees of illegal excavation and magnitude of scam is such that amount of excavation runs into huge figures and, therefore, no leniency can be shown and, therefore, present petition may be dismissed. 6. I have considered the submissions made by learned advocates for rival parties. I have also considered the material on record and I have gone through the relevant provisions of of the Mines and Minerals (Regulations and Development) Act, 1957. 6. I have considered the submissions made by learned advocates for rival parties. I have also considered the material on record and I have gone through the relevant provisions of of the Mines and Minerals (Regulations and Development) Act, 1957. As far as submission of learned advocate for the applicants in respect of incident for which FIR being C.R.No.11211050230195 of 2023 dated 16.06.2023 registered with Thangadh Police Station, Surendranagar, came to be registered against the applicants is concerned pursuant to which Sessions Case No.44/2023 is pending before the Court of learned Sessions Court, Surendranagar, however, learned Additional Public Prosecutor could not dispute the proceedings arising out of the aforesaid aspect, hence, the only question that requires consideration is that whether the mandatory requirement of Section 22 of the Mines and Minerals (Regulations and Development) Act, 1957, as canvassed by learned advocate Mr. Kothari, is fulfilled by the authority or not. 6.1 The Coordinate Bench of this Court vide judgment dated 03.12.2018 in Criminal Miscellaneous Application No.12032 of 2017 in the case of Rekhaben Bharatbhai Laljibhai Lathiya, has observed as under: “The short point for my consideration is, whether the court before whom the charge-sheet has been filed has the power to take cognizance. The principal contention canvased by the learned counsel appearing for the petitioners is that in view of the provisions of section 22 of the Act, 1957, the police has no powers to investigate the offence punishable under section 4 of the Act, 1957. Section 22 of the Act, 1957 reads thus: “Cognizance of offence- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.” Placing reliance on the provisions of section 22, it is submitted that since cognizance of the offence under section 4 of the Act, 1957 can be taken by the Court only upon a complaint in writing made by a person authorized in that behalf by the Central Government or the State Government, the police has no powers to investigate the said offence on the strength of a first information report. Identical issue fell for the consideration of this court in a group of matters being Criminal Miscellaneous Application No.5230 of 2010 and other allied matters decided on 3rd September, 2010. Identical issue fell for the consideration of this court in a group of matters being Criminal Miscellaneous Application No.5230 of 2010 and other allied matters decided on 3rd September, 2010. The learned Single Judge formulated the following questions for its consideration : “(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?” The aforesaid questions were answered by the Court as under : “(1) The offence under the said Act being cognizable offence, the police could have registered an FIR. (2) However, so far as taking cognizance of offence under the said Act was concerned, it could be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which might be filed along with the police report. (3) Since the offence of mining of sand without permission is punishable under section 21 of the said Act, the question of the said offence being an offence under section 379 of IPC does not arise because the said Act makes illegal mining as an offence only when there is no permit/license for such extraction and a complaint in that regard is filed by an authorized officer.” The final conclusions arrived at by the learned Single Judge were as under: “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 thereunder, 2. It is, however, not open for the Magistrate to take cognizance of the offence punishable under the Act or the Rules made thereunder 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. Xxxxxxx 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 chargesheets have been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports.” It appears that the judgment of this court referred to above was carried in appeal before the Supreme Court being Criminal Appeal No.2105 of 2013. The Supreme Court took notice of the fact that such issue was decided by various other High Courts and the orders passed by various High Courts were challenged before the Supreme Court. In such circumstances, all the matters were ordered to be clubbed and by a common judgment and order dated 4th September, 2014, disposed of all the appeals. The Supreme Court took the following view: “57. Sub-section (1A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the rules made thereunder. In other words no person will do mining activity without a valid lease or license. Section 21 is a penal provision according to which if a person contravenes the provisions of Subsection (1A) of Section 4 shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure 1973. 58. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf. 59. It is very important to note that Section 21 does not begin with a non-obstante clause. 58. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf. 59. It is very important to note that Section 21 does not begin with a non-obstante clause. Instead of the words notwithstanding anything contained in any law for the time being in force no court shall take cognizance&.., the Section begins with the words no court shall take cognizance of any offence. 60. It is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. 61. In Liverpool Borough vs. Turner Lord Campbell (1861), 30 L.J. Ch.379, C.J. at page 380 said :- “No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.” 62. In Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page 141, the Supreme Court while interpreting the mandatory and directory provisions of statute observed as under:- “We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines.” 63. The question is whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The question is whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. 64. In Maxell on the Interpretation of Statutes 10th Edn. At page 381, it is stated thus :- “On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.” 65. In the case of State of U.P. vs. Babu Ram Upadhya, AIR 1961 SC 751 , while interpreting a particular statute as mandatory or directory this Court observed :- “When a statute uses the word shall, prima facie, it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.” 66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. 67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels. 68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code. 70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act isan offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of States possession without the consent, constitute an offence of theft. 71. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure. 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-? 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-? nbsp;-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly.” A bare reading of the decision of the Supreme Court in the case of Jaysukh Bavanji Shingalia v. State of Gujarat & Anr. (supra) would go to show that the view taken by the learned Single Judge of this court referred to above has been confirmed. Thus, the position of law is now well settled that Section 22 of the Act, 1957 will not operate as a bar so far as the powers of the police to investigate such offence is concerned being a cognizable offence. The only bar is with regard to taking of cognizance by the court as provided under Section 22 of the Act, 1957. The matters with which I am dealing with are all at the stage of investigation by the police. The learned counsel appearing for the respective petitioners submit that the investigation should be stayed as the same could be termed as illegal in view of the provisions of Section 22 of the Act, 1957. I am afraid, I am unable to accept this contention considering the decision of the Supreme Court. In view of the above, I am left with no other option but to quash the prosecution, which is based on a police report for the offence punishable under the Act 1957. This application is allowed. The proceedings of the Criminal Case No.794 of 2016 pending before the learned JMFC, Mandvi, Surat, is hereby quashed. In view of the above, I am left with no other option but to quash the prosecution, which is based on a police report for the offence punishable under the Act 1957. This application is allowed. The proceedings of the Criminal Case No.794 of 2016 pending before the learned JMFC, Mandvi, Surat, is hereby quashed. Rule made absolute. Direct service is permitted.” 7. The aforesaid observations made by the coordinate Bench of this Court makes it amply clear that the mandatory provisions of Section 22 of the Mines and Minerals (Regulations and Development) Act, 1957, was not followed by the respondent authority while registering the FIR which is impugned in this application. 8. In view of the aforesaid discussions, as mandatory provisions of Section 22 of the Mines and Minerals (Regulations and Development) Act, 1957 for registering the offence under Section 4 of the Act was not followed at the time of registering the FIR, the FIR impugned being C.R. No.11211050230195 of 2023 dated 16.06.2023 registered with Thangadh Police Station, Surendranagar, culminated into Sessions Case No.44/2023 pending before the Court of learned Sessions Court, Surendranagar, as well as consequential proceedings thereof, if any pending, are required to be quashed and set aside and the same are hereby quashed and set aside accordingly. 9. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.