Supreme Court of India
JAYANT ETC.versusTHE STATE OF MADHYA PRADESH
- Citation
- 2020 INSC 678
- Decided
- 3 December 2020
- Disposal
- Disposed off
- Bench
- ASHOK BHUSHAN
Holding
A magistrate may order registration of FIRs for MMDR offences under Section 156(3) CrPC without breaching Section 22, as the bar applies only upon taking cognizance, and while Section 23A bars further proceedings for compounded MMDR offences, it does not affect distinct IPC offences.
Summary
The private appellants were caught in a surprise inspection for illegal mining and were offered compounding of the offences under the Madhya Pradesh Minor Mineral Rules, which they accepted by paying a penalty. Subsequently, a magistrate, suo motu, exercised powers under Section 156(3) of the CrPC to direct registration of FIRs for offences under the Mines & Minerals (Development & Regulation) Act (MMDR Act) and the IPC. The appellants sought quashing of the FIRs, arguing that Section 22 of the MMDR Act barred registration and that the compounding under Section 23A precluded further prosecution. The Supreme Court held that the magistrate’s direction was a pre‑cognizance step, so Section 22 did not apply, and that Section 23A bars further proceedings only for the compounded MMDR offences, not for distinct IPC offences. Accordingly, the FIRs for the MMDR offences were quashed while the IPC proceedings were allowed to continue. The appeal of the State was dismissed.
Issues considered
- Whether a magistrate can, under Section 156(3) CrPC, direct registration of an FIR for offences under the MMDR Act without violating the bar in Section 22 of the Act.
- When does the bar under Section 22 of the MMDR Act become attracted – at the stage of directing investigation or at the stage of taking cognizance and issuing process.
- Whether the compounding provision in Section 23A of the MMDR Act bars further criminal proceedings for the compounded offences and whether it extends to offences under the IPC.
- Whether offences under the MMDR Act and the IPC are distinct such that prosecution under the IPC can proceed notwithstanding compounding under Section 23A.
- Whether the High Court erred in refusing to quash the FIRs for the IPC offences.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 173(2), s. 190, s. 200, s. 202, s. 204
- Indian Penal Code, 1860s. 379, s. 414
- Madhya Pradesh Minor Mineral Rules, 1996s. Rule 53
- Mines & Minerals (Development & Regulation) Act, 1957s. 21, s. 22, s. 23A, s. 4
- M.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006s. Rule 18
Subjects
Mines & Minerals (Development & Regulation) ActSection 22Section 23ACompounding of offencesCognizanceSection 156(3) CrPCIllegal miningEnvironmental lawPublic trust doctrineIPC offencesFIRMagistrate powers
Judgment
[2020] 11 S.C.R. 665 665
JAYANT ETC. A
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal Nos. 824-825 of 2020)
DECEMBER 03, 2020 B
[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
C
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 D
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
E
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, F
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
G
(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 H
665
666 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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][685-
B
A, 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
C 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
D 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
E 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
F 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
G 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)
H of the Code, which the Magistrate did in the instant case, when
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 667
such an order is made the police is obliged to investigate the A
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
B
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, 10.1-
10.3][700-C-H; 701-A-D]
A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC
500 : [1984] 2 SCR 914 – followed. C
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 D
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 E
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, F
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 G
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 H
668 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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
B
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
C 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
D
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
E 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
F
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
G 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
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 669
otherwise, sand/mines is a public property and the State is the A
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
B
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 C
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 D
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 E
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:
F
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; G
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; H
670 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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,
G 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
H Act only. The appeal preferred by the State of Madhya Pradesh
stands dismissed. [Paras 13, 14][704-C-H; 705-A-D]
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 671
Krishna Pillai v. T. A. Rajendran (1990) Suppl. SCC A
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 :
B
[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.
C
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 D
[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 E
[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 F
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 G
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 H
parties.
672 SUPREME COURT REPORTS [2020] 11 S.C.R.
A The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned common
B 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
C 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
D ‘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
E
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
F 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
G
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
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 673
[M. R. SHAH, J.]
places. It was revealed that due to illegal transportation of the minerals A
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
B
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 C
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.
D
(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. E
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. MC RC N O. FIR NO/DATE POLICE Dat e o f Incident F
STATION
1 4 93 38 /2019 2 34 /16.11.2019 Nai Ab adi 27 .0 7.2 01 9
2 4 93 40 /2019 5 54 /16.11 .201 9 Y.D. Nag ar 16.1 1.201 9
3 4 98 47 /2019 5 64 /17.11 .201 9 Y.D. Nag ar 20.0 4.201 9
4 4 98 56 /2019 2 80 /16.11 .201 9 Afzalpur 30.0 8.201 9
5 4 98 59 /2019 5 63 /17.11.2019 Y.D. Nag ar 20.0 4.201 9
6 4 98 61 /2019 5 88 /18.11.2019 Y.D. Nag ar 24.0 8.201 9
7 4 99 63 /2019 2 81 /16.11.2019 Afzalpu r 30.0 8.201 9
8 4 99 72 /2019 2 38 /18.11.2019 Nai Ab adi 28 .0 8.2 01 9
G
9 5 06 02 /2019 1 37 /17.11 .201 9 Daloda 25.0 5.201 9
10 5 06 10 /2019 1 36 /16.11 .201 9 Daloda 25.0 5.201 9
11 5 06 14 /2019 1 39 /17.11.2019 Daloda 10.0 6.201 9
12 5 06 27 /2019 5 91 /18.11.2019 Y.D. Nag ar 13.0 6.201 9
13 5 06 36 /2019 5 51 /16.11.2019 Y.D. Nag ar 02.0 4.201 9
14 0 56 48 /2019 5 52 /16.11.2019 Y.D. Nag ar 02.0 4.201 9
H
674 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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
B
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,
C 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).
D 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
E 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
F 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
G 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
H be taken by the Magistrate only if there is a written complaint in that
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 675
[M. R. SHAH, J.]
regard by the Mining Officer/authorised officer. In the present case, A
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 in- B
charge 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;
C
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 D
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 E
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 F
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 G
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.
H
676 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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.
B 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
C 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:
D “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
E 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
F 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
G 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
H the lowering of the riverbed by 7 to 15 cm a year. Incision can
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 677
[M. R. SHAH, J.]
also cause the alluvial aquifer to drain to a lower level, resulting in A
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
B
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, C
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 D
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. E
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 F
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 G
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.
H
678 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
G 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
H impacts cause degradation of riparian and aquatic biota and may
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 679
[M. R. SHAH, J.]
lead to the undermining of bridges and other structures. Continued A
extraction of sand from riverbeds may also cause the entire stream-
bed 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 B
substantial negative effects on aquatic life. The stability of sand-
bed 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 C
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 D
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. E
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: F
(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 G
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
H
680 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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
B
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)
C
“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.
D 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
E 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
F Michigan—proponent of the Modern Public Trust Doctrine—
in 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:
G ‘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
H points should be emphasised. First, certain interests, such as
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 681
[M. R. SHAH, J.]
navigation and fishing, were sought to be preserved for the A
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 properties—
such as the seashore, highways and running water—‘‘perpetual
B
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.’ C
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, D
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 E
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 F
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.’
* * *
G
34. Our legal system—based on English common law—
includes 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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682 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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.”
B 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
C is now a well-accepted notion in all countries. It is this notion
that, in international law, gave rise to the principle of ‘State
responsibility’ for pollution emanating within one’s own
territories (Corfu Channel case14). This responsibility is clearly
enunciated in the United Nations Conference on the Human
Environment, Stockholm 1972 (Stockholm Convention), to
D which India was a party. The relevant clause of this declaration
in the present context is para 2, which states:
‘The natural resources of the earth, including the air,
water, land, flora and fauna and especially representative
samples of natural ecosystems, must be safeguarded for the
E benefit of present and future generations through careful
planning or management, as appropriate.’
Thus, there is no doubt about the fact that there is a responsibility
bestowed upon the Government to protect and preserve the
tanks, which are an important part of the environment of the
F area.”
7.2 This Court further observed in paragraphs 60 & 69 as under:
“60. There cannot be any two opinions that natural resources are
the assets of the nation and its citizens. It is the obligation of all
concerned, including the Central and the State Governments, to
G
conserve and not waste such valuable resources. Article 48-A of
the Constitution requires that the State shall endeavour to protect
and improve the environment and safeguard the forests and wildlife
of the country. Similarly, Article 51-A enjoins a duty upon every
citizen to protect and improve the natural environment including
H forests, lakes, rivers and wildlife, and to have compassion for all
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 683
[M. R. SHAH, J.]
the living creatures. In view of the constitutional provisions, the A
doctrine of public trust has become the law of the land. The said
doctrine rests on the principle that certain resources like air, sea,
water and forests are of such great importance to the people as a
whole that it would be highly unjustifiable to make them a subject
of private ownership.
B
69. Considering the principles of interpretation and the wordings
used in Section 22, in our considered opinion, the provision is not a
complete and absolute bar for taking action by the police for illegal
and dishonestly committing theft of minerals including sand from
the riverbed. The Court shall take judicial notice of the fact that
over the years rivers in India have been affected by the alarming C
rate of unrestricted sand mining which is damaging the ecosystem
of the rivers and safety of bridges. It also weakens riverbeds, fish
breeding and destroys the natural habitat of many organisms. If
these illegal activities are not stopped by the State and the police
authorities of the State, it will cause serious repercussions as D
mentioned hereinabove. It will not only change the river hydrology
but also will deplete the groundwater levels.”
7.3 That thereafter, after considering the relevant provisions of
the MMDR Act, this Court opined that there is no complete and absolute
bar in prosecuting persons under the Penal Code where the offences E
committed by persons are penal and cognizable offence. Ultimately, this
Court concluded in paragraphs 72 and 73 as under:
“72. From a close reading of the provisions of the MMDR Act
and the offence defined under Section 378 IPC, it is manifest that
the ingredients constituting the offence are different. The F
contravention of terms and conditions of mining lease or doing
mining activity in violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act, whereas
dishonestly removing sand, gravel and other minerals from the
river, which is the property of the State, out of the State’s
possession without the consent, constitute an offence of theft. G
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 H
684 SUPREME COURT REPORTS [2020] 11 S.C.R.
A Procedure and submit a report before the Magistrate for taking
cognizance against such persons. In other words, in a case where
there is a theft of sand and gravel from the government land, the
police can register a case, investigate the same and submit a final
report under Section 173 CrPC before a Magistrate having
jurisdiction for the purpose of taking cognizance as provided in
B
Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the
light of the relevant provisions of the Act vis-à-vis the Code of
Criminal Procedure and the Penal Code, we are of the definite
opinion that the ingredients constituting the offence under the
C MMDR Act and the ingredients of dishonestly removing sand
and gravel from the riverbeds without consent, which is the
property of the State, is a distinct offence under IPC. Hence, for
the commission of offence under Section 378 IPC, on receipt of
the police report, the Magistrate having jurisdiction can take
D cognizance of the said offence without awaiting the receipt of
complaint that may be filed by the authorised officer for taking
cognizance in respect of violation of various provisions of the
MMDR Act. Consequently, the contrary view taken by the
different High Courts cannot be sustained in law and, therefore,
overruled. Consequently, these criminal appeals are disposed of
E with a direction to the Magistrates concerned to proceed
accordingly.”
7.4 Thus, as held by this Court, the prohibition contained in Section
22 of the MMDR Act against prosecution of a person except on
a written complaint made by the authorised officer in this behalf
F would be attracted only when such person is sought to be prosecuted
for contraventions of Section 4 of the MMDR Act and not for
any act or omission which constitutes an offence under the Penal
Code.
8. However, it is required to be noted that in the case of Sanjay
G (supra), this Court had no occasion and/or had not considered
when and at what stage the bar under Section 22 of the MMDR
Act would be attracted. The further question which is required to
be considered is, when and at what stage the Magistrate can be
said to have taken cognizance attracting the bar under Section 22
H of the MMDR Act?
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 685
[M. R. SHAH, J.]
8.1 While considering the aforesaid issue, Section 22 of the MMDR A
Act is required to be referred to, which is 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 or the B
State Government.”
Reading the aforesaid provision would show 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 C
Government. Therefore, on a fair reading of Section 22 of the MMDR
Act, the bar would be attracted when the Magistrate takes cognizance.
9. Let us now consider the question in the light of judicial
pronouncements on the point.
9.1. In the case of Krishna Pillai v. T.A. Rajendran, 1990 D
(Supp) SCC 121, after considering a five Judge Bench judgment of this
Court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak, (1984)
2 SCC 500, it is observed in paragraph 4 as under:
“4. Taking cognizance has assumed a special meaning in our
criminal jurisprudence. We may refer to the view taken by a five E
Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas
Nayak (supra) at p. 530 (para 31) of the reports this Court
indicated:
“When a private complaint is filed, the court has to examine
the complainant on oath save in the cases set out in the proviso F
to Section 200 CrPC After examining the complainant on oath
and examining the witnesses present, if any, meaning thereby
that the witnesses not present need not be examined, it would
be open to the court to judicially determine whether a case is
made out for issuing process. When it is said that court issued
G
process, it means the court has taken cognizance of the offence
and has decided to initiate the proceedings and a visible
manifestation of taking cognizance process is issued which
means that the accused is called upon to appear before the
court.”
H
686 SUPREME COURT REPORTS [2020] 11 S.C.R.
A The extract from the Constitution Bench judgment clearly indicates
that filing of a complaint in court is not taking cognizance and
what exactly constitutes taking cognizance is different from filing
of a complaint…..”
9.2 In the case of Manohar M. Galani v. Ashok N. Advani
B (1999) 8 SCC 737, when the bar under Section 195 Cr. P.C. was pressed
into service and the High Court quashed the complaint and enquiry on
the basis of the FIR registered by the complainant, while setting aside
the order passed by the High Court, this Court accepted the submission
on behalf of the State that the bar under Section 195 Cr.P.C. can be
gone into at the stage when the court takes cognizance of the offence
C and investigation on the basis of the information received could not have
been quashed and an investigating agency cannot be throttled at this
stage from proceeding with the investigation particularly when the
charges are serious and grave.
9.3 In the case of S.K. Sinha, Chief Enforcement Officer v.
D Videocon International Limited, (2008) 2 SCC 492, in paragraphs
19 to 34, it is observed and held as under:
“19. The expression “cognizance” has not been defined in the
Code. But the word (cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law. It merely means
E “become aware of” and when used with reference to a court or a
Judge, it connotes “to take notice of judicially”. It indicates the
point when a court or a Magistrate takes judicial notice of an
offence with a view to initiating proceedings in respect of such
offence said to have been committed by someone.
F 20. “Taking cognizance” does not involve any formal action of
any kind. It occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance is taken prior
to commencement of criminal proceedings. Taking of cognizance
is thus a sine qua non or condition precedent for holding a valid
G trial. Cognizance is taken of an offence and not of an offender.
Whether or not a Magistrate has taken cognizance of an offence
depends on the facts and circumstances of each case and no rule
of universal application can be laid down as to when a Magistrate
can be said to have taken cognizance.
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 687
[M. R. SHAH, J.]
21. Chapter XIV (Sections 190-199) of the Code deals with A
“Conditions requisite for initiation of proceedings”. Section 190
empowers a Magistrate to take cognizance of an offence in certain
circumstances. Sub-section (1) thereof is material and may be
quoted in extenso:
“190. Cognizance of offences by Magistrates —(1) Subject B
to the provisions of this Chapter, any Magistrate of the First
Class, and any Magistrate of the Second Class specially
empowered in this behalf under sub-section (2), may take
cognizance of any offence—
(a) upon receiving a complaint of facts which constitute C
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.” D
22. Chapter XV (Sections 200-203) relates to “Complaints to
Magistrates” and covers cases before actual commencement of
proceedings in a court or before a Magistrate. Section 200 of the
Code requires a Magistrate taking cognizance of an offence to
examine the complainant and his witnesses on oath. Section 202, E
however, enacts that a Magistrate is not bound to issue process
against the accused as a matter of course. It enables him before
the issue of process either to inquire into the case himself or direct
an investigation to be made by a police officer or by such other
person as he thinks fit for the purpose of deciding whether there F
is sufficient ground for proceeding further. The underlying object
of the inquiry under Section 202 is to ascertain whether there is
prima facie case against the accused. It thus allows a Magistrate
to form an opinion whether the process should or should not be
issued. The scope of inquiry under Section 202 is, no doubt,
extremely limited. At that stage, what a Magistrate is called upon G
to see is whether there is sufficient ground for proceeding with
the matter and not whether there is sufficient ground for
conviction of the accused.
23. Then comes Chapter XVI (Commencement of proceedings
before Magistrates). This Chapter will apply only after cognizance H
688 SUPREME COURT REPORTS [2020] 11 S.C.R.
A of an offence has been taken by a Magistrate under Chapter
XIV. Section 204, whereunder process can be issued, is another
material provision which reads as under:
“204. Issue of process.—(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
B proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
C appear at a certain time before such Magistrate or (if he
has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses
D has been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall
be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-
E
fees or other fees are payable, no process shall be issued until
the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.”
F
24. From the above scheme of the Code, in our judgment, it is
clear that “Initiation of proceedings”, dealt with in Chapter XIV,
is different from “Commencement of proceedings” covered by
Chapter XVI. For commencement of proceedings, there must be
initiation of proceedings. In other words, initiation of proceedings
G must precede commencement of proceedings. Without initiation
of proceedings under Chapter XIV, there cannot be
commencement of proceedings before a Magistrate under Chapter
XVI. The High Court, in our considered view, was not right in
equating initiation of proceedings under Chapter XIV with
H commencement of proceedings under Chapter XVI.
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 689
[M. R. SHAH, J.]
25. Let us now consider the question in the light of judicial A
pronouncements on the point.
26. In Supdt. & Remembrancer of Legal Affairs v. Abani Kumar
Banerjee, AIR 1950 Cal. 437, the High Court of Calcutta had
an occasion to consider the ambit and scope of the phrase “taking
cognizance” under Section 190 of the Code of Criminal Procedure, B
1898 which was in pari materia with Section 190 of the present
Code of 1973. Referring to various decisions, Das Gupta, J. (as
His Lordship then was) stated: (AIR p. 438, para 7)
“7. … What is ‘taking cognizance’ has not been defined in the
Criminal Procedure Code, and I have no desire now to attempt C
to define it. It seems to me clear, however, that before it can
be said that any Magistrate has taken cognizance of any
offence under Section 190(1)(a) CrPC, he must not only have
applied his mind to the contents of the petition, but he must
have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter, D
proceeding under Section 200, and thereafter sending it for
enquiry and report under Section 202. When the Magistrate
applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking action of
some other kind, e.g., ordering investigation under Section E
156(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of
the offence.”
27. R.R. Chari v. State of U.P. AIR 1951 SC 207 was probably
the first leading decision of this Court on the point. There, the F
police, having suspected the appellant-accused to be guilty of
offences punishable under Sections 161 and 165 of the Penal Code
(IPC) as also under the Prevention of Corruption Act, 1947, applied
to the District Magistrate, Kanpur to issue warrant of arrest on
22-10-1947. Warrant was issued on the next day and the accused
was arrested on 27-10-1947. G
28. On 25-3-1949, the accused was produced before the Magistrate
to answer the charge-sheet submitted by the prosecution.
According to the accused, on 22-10-1947, when warrant for his
arrest was issued by the Magistrate, the Magistrate was said to
H
690 SUPREME COURT REPORTS [2020] 11 S.C.R.
A have taken cognizance of offence and since no sanction of the
Government had been obtained before that date, initiation of
proceedings against him was unlawful. The question before the
Court was as to when cognizance of the offence could be said to
have been taken by the Magistrate under Section 190 of the Code.
Considering the circumstances under which “cognizance of
B
offence” under sub-section (1) of Section 190 of the Code can be
taken by a Magistrate and referring to Abani Kumar Banerjee
(supra), the Court, speaking through Kania, C.J. stated: (Chari
case (supra), AIR p. 208, para 3)
“3. It is clear from the wording of the section that the initiation
C of the proceedings against a person commences on the
cognizance of the offence by the Magistrate under one of the
three contingencies mentioned in the section. The first
contingency evidently is in respect of non-cognizable offences
as defined in CrPC on the complaint of an aggrieved person.
D The second is on a police report, which evidently is the case of
a cognizable offence when the police have completed their
investigation and come to the Magistrate for the issue of a
process. The third is when the Magistrate himself takes notice
of an offence and issues the process. It is important to
remember that in respect of any cognizable offence, the police,
E at the initial stage when they are investigating the matter, can
arrest a person without obtaining an order from the Magistrate.
Under Section 167(b) CrPC the police have of course to put
up the person so arrested before a Magistrate within 24 hours
and obtain an order of remand to police custody for the purpose
F of further investigation, if they so desire. But they have the
power to arrest a person for the purpose of investigation without
approaching the Magistrate first. Therefore, in cases of
cognizable offence before proceedings are initiated and while
the matter is under investigation by the police the suspected
person is liable to be arrested by the police without an order by
G the Magistrate.”
29. Approving the observations of Das Gupta, J. in Abani Kumar
Banerjee(supra), this Court held that it was on 25-3-1949 when
the Magistrate issued a notice under Section 190 of the Code
against the accused that he took “cognizance” of the offence.
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 691
[M. R. SHAH, J.]
Since before that day, sanction had been granted by the A
Government, the proceedings could not be said to have been
initiated without authority of law.
30. Again in Narayandas Bhagwandas Madhavdas v. State of
W.B.AIR 1959 SC 1118, this Court observed that when
cognizance is taken of an offence depends upon the facts and B
circumstances of each case and it is impossible to attempt to define
what is meant by taking cognizance. Issuance of a search warrant
for the purpose of an investigation or a warrant of arrest of the
accused cannot by itself be regarded as an act of taking
cognizance of an offence. It is only when a Magistrate applies his
mind for proceeding under Section 200 and subsequent sections C
of Chapter XV or under Section 204 of Chapter XVI of the Code
that it can be positively stated that he had applied his mind and
thereby had taken cognizance of an offence (see also Ajit Kumar
Palit v. State of W.B. AIR 1963 SC 765 and Hareram Satpathy
v. Tikaram Agarwala, (1978) 4 SCC 58). D
31. In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986,
referring to earlier judgments, this Court said: (AIR p. 989, para
7)
“7. … We cannot read the provisions of Section 190 to mean
that once a complaint is filed, a Magistrate is bound to take E
cognizance if the facts stated in the complaint disclose the
commission of any offence. We are unable to construe the
word ‘may’ in Section 190 to mean ‘must’. The reason is
obvious. A complaint disclosing cognizable offences may well
justify a Magistrate in sending the complaint, under Section F
156(3) to the police for investigation. There is no reason why
the time of the Magistrate should be wasted when primarily
the duty to investigate in cases involving cognizable offences
is with the police. On the other hand, there may be occasions
when the Magistrate may exercise his discretion and take
cognizance of a cognizable offence. If he does so then he G
would have to proceed in the manner provided by Chapter
XVI of the Code.”
32. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC
753, the Court stated that it is well settled that before a Magistrate
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692 SUPREME COURT REPORTS [2020] 11 S.C.R.
A can be said to have taken cognizance of an offence under Section
190(1)(a) of the Code, he must have not only applied his mind to
the contents of the complaint presented before him, but must have
done so for the purpose of proceeding under Section 200 and the
provisions following that section. Where, however, he applies his
mind only for ordering an investigation under Section 156(3) or
B
issues a warrant for arrest of the accused, he cannot be said to
have taken cognizance of the offence.
33. In Darshan Singh Ram Kishan v. State of Maharashtra
(1971) 2 SCC 654, speaking for the Court, Shelat, J. stated that
under Section 190 of the Code, a Magistrate may take cognizance
C of an offence either (a) upon receiving a complaint, or (b) upon a
police report, or (c) upon information received from a person other
than a police officer or even upon his own information or suspicion
that such an offence has been committed. As has often been said,
taking cognizance does not involve any formal action or indeed
D action of any kind. It occurs as soon as a Magistrate applies his
mind to the suspected commission of an offence. Cognizance,
thus, takes place at a point when a Magistrate first takes judicial
notice of an offence.
34. In Devarapalli Lakshminarayana Reddy v. V. Narayana
E Reddy (1976) 3 SCC 252, this Court said: (SCC p. 257, paras
13-14)
“13. It is well settled that when a Magistrate receives a
complaint, he is not bound to take cognizance if the facts alleged
in the complaint, disclose the commission of an offence. This
F is clear from the use of the words ‘may take cognizance’ which
in the context in which they occur cannot be equated with
‘must take cognizance’. The word ‘may’ gives a discretion to
the Magistrate in the matter. If on a reading of the complaint
he finds that the allegations therein disclose a cognizable offence
and the forwarding of the complaint to the police for investigation
G under Section 156(3) will be conducive to justice and save the
valuable time of the Magistrate from being wasted in enquiring
into a matter which was primarily the duty of the police to
investigate, he will be justified in adopting that course as an
alternative to taking cognizance of the offence, himself.
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 693
[M. R. SHAH, J.]
14. This raises the incidental question: What is meant by ‘taking A
cognizance of an offence’ by a Magistrate within the
contemplation of Section 190? This expression has not been
defined in the Code. But from the scheme of the Code, the
content and marginal heading of Section 190 and the caption
of Chapter XIV under which Sections 190 to 199 occur, it is
B
clear that a case can be said to be instituted in a court only
when the court takes cognizance of the offence alleged therein.
The ways in which such cognizance can be taken are set out
in Clauses (a), (b) and (c) of Section 190(1). Whether the
Magistrate has or has not taken cognizance of the offence will
depend on the circumstances of the particular case including C
the mode in which the case is sought to be instituted, and the
nature of the preliminary action, if any, taken by the Magistrate.
Broadly speaking, when on receiving a complaint, the
Magistrate applies his mind for the purposes of proceeding
under Section 200 and the succeeding sections in Chapter XV
D
of the Code of 1973, he is said to have taken cognizance of the
offence within the meaning of Section 190(1)(a). If, instead of
proceeding under Chapter XV, he has, in the judicial exercise
of his discretion, taken action of some other kind, such as issuing
a search warrant for the purpose of investigation, or ordering
investigation by the police under Section 156(3), he cannot be E
said to have taken cognizance of any offence.”
(see also M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528).
9.4 In the case of Fakhruddin Ahmad v. State of Uttaranchal,
(2008) 17 SCC 157, in paragraphs 9 to 17, it is observed and held as
under: F
“9. Before examining the rival contentions, we may briefly refer
to some of the relevant provisions in the Code. Chapter XIV of
the Code, containing Sections 190 to 199 deals with the statutory
conditions requisite for initiation of criminal proceedings and as to
the powers of cognizance of a Magistrate. Sub-section (1) of G
Section 190 of the Code empowers a Magistrate to take cognizance
of an offence in the manner laid therein. It provides that a
Magistrate may take cognizance of an offence either (a) upon
receiving a complaint of facts which constitute such offence; or
(b) upon a police report of such facts; or (c) upon information H
694 SUPREME COURT REPORTS [2020] 11 S.C.R.
A received from any person other than a police officer, or upon his
own knowledge that such offence has been committed.
10. Chapter XV containing Sections 200 to 203 deals with
“Complaints to Magistrates” and lays down the procedure which
is required to be followed by the Magistrate taking cognizance of
B an offence on complaint. Similarly, Chapter XVI deals with
“Commencement of Proceedings before Magistrates”. Since
admittedly, in the present case, the Magistrate has taken
cognizance of the complaint in terms of Section 190 of the Code,
we shall confine our discussion only to the said provision. We
may, however, note that on receipt of a complaint, the Magistrate
C has more than one course open to him to determine the procedure
and the manner to be adopted for taking cognizance of the offence.
11. One of the courses open to the Magistrate is that instead of
exercising his discretion and taking cognizance of a cognizable
offence and following the procedure laid down under Section 200
D or Section 202 of the Code, he may order an investigation to be
made by the police under Section 156(3) of the Code, which the
learned Magistrate did in the instant case. When such an order is
made, the police is obliged to investigate the case and submit a
report under Section 173(2) of the Code. On receiving the police
E report, if the Magistrate is satisfied that on the facts discovered
or unearthed by the police there is sufficient material for him to
take cognizance of the offence, he may take cognizance of the
offence under Section 190(1)(b) of the Code and issue process
straightaway to the accused. However, Section 190(1)(b) of the
Code does not lay down that a Magistrate can take cognizance of
F an offence only if the investigating officer gives an opinion that
the investigation makes out a case against the accused.
Undoubtedly, the Magistrate can ignore the conclusion(s) arrived
at by the investigating officer.
12. Thus, it is trite that the Magistrate is not bound by the opinion
G of the investigating officer and he is competent to exercise his
discretion in this behalf, irrespective of the view expressed by the
police in their report and decide whether an offence has been
made out or not. This is because the purpose of the police report
under Section 173(2) of the Code, which will contain the facts
H discovered or unearthed by the police as well as the conclusion
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 695
[M. R. SHAH, J.]
drawn by the police therefrom is primarily to enable the Magistrate A
to satisfy himself whether on the basis of the report and the material
referred therein, a case for cognizance is made out or not.
13. The next incidental question is as to what is meant by the
expression “taking cognizance of an offence” by a Magistrate
within the contemplation of Section 190 of the Code? B
14. The expression “cognizance” is not defined in the Code but is
a word of indefinite import. As observed by this Court in Ajit
Kumar Palit v. State of W.B., AIR 1963 SC 765 (AIR p. 770,
para 19)
“19. … The word ‘cognizance’ has no esoteric or mystic C
significance in criminal law or procedure. It merely means—
become aware of and when used with reference to a court or
Judge, to take notice of judicially.”
Approving the observations of the Calcutta High Court in Emperor
v. Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal. 412 D
(at ILR p. 416), the Court said that
“taking cognizance does not involve any formal action, or indeed
action of any kind, but occurs as soon as a Magistrate, as
such, applies his mind to the suspected commission of an
offence.” E
(emphasis supplied)
15. Recently, this Court in Chief Enforcement Officer v. Videocon
International Ltd.4 speaking through C.K. Thakker, J., while
considering the ambit and scope of the phrase “taking cognizance”
F
under Section 190 of the Code, has highlighted some of the
observations of the Calcutta High Court in Supdt. &
Remembrancer of Legal Affairs v. Abani Kumar Banerjee,
AIR 1950 Cal. 437 which were approved by this Court in R.R.
Chari v. State of U.P., AIR 1951 SC 207. The observations are:
(Abani Kumar Banerjee case(supra), AIR p. 438, para 7) G
“7. … What is ‘taking cognizance’ has not been defined in the
Criminal Procedure Code, and I have no desire now to attempt
to define it. It seems to me clear, however, that before it can
be said that any Magistrate has taken cognizance of any
offence under Section 190(1)(a) CrPC, he must not only have H
696 SUPREME COURT REPORTS [2020] 11 S.C.R.
A applied his mind to the contents of the petition, but he must
have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter,
proceeding under Section 200, and thereafter sending it for
enquiry and report under Section 202. When the Magistrate
applies his mind not for the purpose of proceeding under the
B
subsequent sections of this Chapter, but for taking action of
some other kind e.g. 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.”
16. From the aforenoted judicial pronouncements, it is clear that
C being an expression of indefinite import, it is neither practicable
nor desirable to precisely define as to what is meant by “taking
cognizance”. Whether the Magistrate has or has not taken
cognizance of the offence will depend upon the circumstances of
the particular case, including the mode in which the case is sought
D to be instituted and the nature of the preliminary action.
17. Nevertheless, it is well settled that before a Magistrate can
be said to have taken cognizance of an offence, it is imperative
that he must have taken notice of the accusations and applied
his mind to the allegations made in the complaint or in the police
E report or the information received from a source other than a
police report, as the case may be, and the material filed therewith.
It needs little emphasis that it is only when the Magistrate applies
his mind and is satisfied that the allegations, if proved, would
constitute an offence and decides to initiate proceedings against
the alleged offender, that it can be positively stated that he has
F taken cognizance of the offence. Cognizance is in regard to the
offence and not the offender.”
9.5 In the case of Subramanian Swamy v. Manmohan Singh,
(2012) 3 SCC 64, it is observed in paragraphs 34 to 37 as under:
G “34. The argument of the learned Attorney General that the
question of granting sanction for prosecution of a public servant
charged with an offence under the 1988 Act arises only at the
stage of taking cognizance and not before that is neither supported
by the plain language of the section nor the judicial precedents
relied upon by him. Though, the term “cognizance” has not been
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 697
[M. R. SHAH, J.]
defined either in the 1988 Act or CrPC, the same has acquired a A
definite meaning and connotation from various judicial precedents.
In legal parlance cognizance is “taking judicial notice by the court
of law, possessing jurisdiction, on a cause or matter presented
before it so as to decide whether there is any basis for initiating
proceedings and determination of the cause or matter judicially”.
B
35. In R.R. Chari v. State of U.P AIR 1951 SC 207, the three-
Judge Bench approved the following observations made by the
Calcutta High Court in Supt. and Remembrancer of Legal Affairs
v. Abani Kumar Banerjee AIR 1950 Cal. 437,: (AIR p. 438,
para 7)
C
“7. … What is ‘taking cognizance’ has not been defined in
the Criminal Procedure Code, and I have no desire now to attempt
to define it. It seems to me clear, however, that before it can be
said that any Magistrate has taken cognizance of any offence
under Section 190(1)(a), Criminal Procedure Code, he must not
only have applied his mind to the contents of the petition, but he D
must have done so for the purpose of proceeding in a particular
way as indicated in the subsequent provisions of this Chapter,—
proceeding under Section 200, and thereafter sending it for inquiry
and report under Section 202. When the Magistrate applies his
mind not for the purpose of proceeding under the subsequent E
sections of this Chapter, but for taking action of some other kind
e.g. 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.”
36. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, the F
Court referred to Section 190 CrPC and observed: (SCC p. 696,
para 43)
“43. … In its broad and literal sense, it means taking notice
of an offence. This would include the intention of initiating judicial
proceedings against the offender in respect of that offence or G
taking steps to see whether there is any basis for initiating judicial
proceedings or for other purposes. The word ‘cognizance’ indicates
the point when a Magistrate or a Judge first takes judicial notice
of an offence. It is entirely a different thing from initiation of
proceedings; rather it is the condition precedent to the initiation of
H
698 SUPREME COURT REPORTS [2020] 11 S.C.R.
A proceedings by the Magistrate or the Judge. Cognizance is taken
of cases and not of persons.”
37. In State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728,
this Court referred to the provisions of Chapter XIV and Sections
190 and 196(1-A) CrPC and observed: (SCC p. 732, para 8)
B “8. … 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
C 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.”
9.6 In the case of Anil Kumar v. M.K. Aiyappa (2013) 10 SCC
D 705, it is observed and held in paragraphs 12 to 15 as under:
“12. We will now examine whether the order directing investigation
under Section 156(3) CrPC would amount to taking cognizance
of the offence, since a contention was raised that the expression
“cognizance” appearing in Section 19(1) of the PC Act will have
E to be construed as post-cognizance stage, not pre-cognizance stage
and, therefore, the requirement of sanction does not arise prior to
taking cognizance of the offences punishable under the provisions
of the PC Act.
13. The expression “cognizance” which appears in Section 197
F CrPC came up for consideration before a three-Judge Bench of
this Court in State of U.P. v. Paras Nath Singh (2009) 6 SCC
372, and this Court expressed the following view: (SCC pp. 375,
para 6)
“6. … ‘10. … And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of the
G
Code, either on receipt of a complaint, or upon a police report
or upon information received from any person other than a
police officer, or upon his knowledge that such offence has
been committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by Section
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 699
[M. R. SHAH, J.]
197 of the Code unless sanction is obtained from the appropriate A
authority, if the offence, alleged to have been committed, was
in discharge of the official duty. The section not only specifies
the persons to whom the protection is afforded but it also
specifies the conditions and circumstances in which it shall be
available and the effect in law if the conditions are satisfied.
B
The mandatory character of the protection afforded to a public
servant is brought out by the expression, ‘no court shall take
cognizance of such offence except with the previous sanction’.
Use of the words ‘no’ and ‘shall’ makes it abundantly clear
that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very C
cognizance is barred. That is, the complaint cannot be taken
notice of. According to Black’s Law Dictionary the word
‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’
or ‘power to try and determine causes’. In common parlance,
it means taking notice of. A court, therefore, is precluded from
D
entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused
of an offence alleged to have been committed during discharge
of his official duty.”
14. In State of W.B. v. Mohd. Khalid (1995) 1 SCC 684, this
Court has observed as follows: E
“13. It is necessary to mention here that taking cognizance of
an offence is not the same thing as issuance of process.
Cognizance is taken at the initial stage when the Magistrate
applies his judicial mind to the facts mentioned in a complaint
or to a police report or upon information received from any F
other person that an offence has been committed. The issuance
of process is at a subsequent stage when after considering the
material placed before it the court decides to proceed against
the offenders against whom a prima facie case is made out.
The meaning of the said expression was also considered by this G
Court in Subramanian Swamy case (2012) 3 SCC 64.
15. The judgments referred to hereinabove clearly indicate that
the word “cognizance” has a wider connotation and is not merely
confined to the stage of taking cognizance of the offence. When
H
700 SUPREME COURT REPORTS [2020] 11 S.C.R.
A a Special Judge refers a complaint for investigation under Section
156(3) CrPC, 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. When a Special Judge takes
cognizance of the offence on a complaint presented under Section
200 CrPC and the next step to be taken is to follow up under
B
Section 202 CrPC. Consequently, a Special Judge referring the
case for investigation under Section 156(3) is at pre-cognizance
stage.”
10. Having heard learned counsel for the parties and having
perused the relevant provisions of the law as also the judicial
C pronouncements, we are of the view that the High Court has not
committed any error in not quashing the order passed by the learned
Magistrate and not quashing the criminal proceedings for the offences
under Sections 379 and 414. It is required to be noted that the learned
Magistrate in exercise of the suo motu powers conferred under Section
D 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.
Applying the law laid down by this Court in the cases referred to
E hereinabove, it cannot be said that at this stage the learned 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
F of investigation, as contemplated by Section 173, Cr.P.C.
10.1 At this stage, it is required to be noted that as per Section 21
of the MMDR Act, the offences under the MMDR Act are cognizable.
10.2 As specifically observed by this Court in the case of Anil Kumar
(supra), ‘when a Special Judge refers a complaint for investigation under
G 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’.
10.3 Even as observed by this Court in the case of R.R. Chari
(supra), even the order passed by the Magistrate ordering investigation
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 701
[M. R. SHAH, J.]
under Section 156(3), or issuing a search warrant for the purpose of the A
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 (supra), 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
B
investigation to be made by the police under Section 156(3) of the Code,
which the learned Magistrate did in the instant case, when 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 C
mentioned in Section 22 of the MMDR Act may file the complaint before
the learned Magistrate along with the report submitted by the investigating
officer and at that stage the question with respect to taking cognizance
by the learned Magistrate would arise.
11. Now so far as the submission on behalf of the private D
appellants-violators that in view of the fact that violators were permitted
to compound the violation in exercise of powers under Rule 53 of the
1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the
decision and deposited the amount of penalty determined by the
appropriate authority for compounding the offences/violations, there
cannot be any further criminal proceedings for the offences under E
Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the
reliance placed on Section 23A of the MMDR Act is concerned, 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 F
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 G
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 H
702 SUPREME COURT REPORTS [2020] 11 S.C.R.
A 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, as observed and
B
held hereinabove, the offences under the MMDR Act or any rule made
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
C 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
D
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, as observed
hereinabove, the criminal complaints/proceedings for the offences under
E 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, our 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
F 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.
However, in view of the large scale damages being caused to the nature
and as observed and held by this Court in the case of Sanjay (supra),
G the policy and object of MMDR Act and Rules 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
and considering the observations made by this Court in the aforesaid
decision, reproduced hereinabove, and when the violations like this are
H increasing and the serious damage is caused to the nature and the earth
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 703
[M. R. SHAH, J.]
and it also affects the ground water levels etc. and it causes severe A
damage as observed by this Court in the case of Sanjay (supra),
reproduced hereinabove, we are of the opinion that 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
B
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 (supra), 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 C
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 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 D
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, we
leave the matter there and leave it to the wisdom of the legislatures and E
the concerned States.
12. Now so far as the appeal preferred by the State on the premise
that the order passed by the learned Magistrate, confirmed by the High
Court, affects the powers of the authorised person to compound the
offence, in exercise of powers under Rule 53 of the 1996 Rules and F
Rule 18 of the 2006 Rules is concerned, the same is absolutely
misconceived. By the order passed by the learned 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 G
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 (supra), 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
H
704 SUPREME COURT REPORTS [2020] 11 S.C.R.
A before the High Court the State supported the order passed by the learned
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.
13. After giving our thoughtful consideration in the matter, in the
B light of the relevant provisions of the MMDR Act and the Rules made
thereunder vis-à-vis the Code of Criminal Procedure and the Penal Code,
and the law laid down by this Court in the cases referred to hereinabove
and for the reasons stated hereinabove, our conclusions are as under:
i) that the learned Magistrate can in exercise of powers under
C 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
D only when the learned 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;
iii) for commission of the offence under the IPC, on receipt of the
E 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
F 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
G 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 learned Magistrate
along with the report submitted by the concerned investigating officer
and thereafter it will be open for the learned Magistrate to take cognizance
H
JAYANT ETC. v. THE STATE OF MADHYA PRADESH 705
[M. R. SHAH, J.]
after following due procedure, issue process/summons in respect of the A
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 learned Magistrate.
v) in a case where the violator is permitted to compound the
offences on payment of penalty as per sub-section1 of Section 23A, B
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 C
proceeded with further.
14. In view of the above and for the reasons stated above, 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 D
State of Madhya Pradesh stands dismissed.
Divya Pandey Appeals disposed of.
E
F
G
H
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