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TMI Blog2019 (12) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 8th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the Appellant for trial. 3. In brief, the facts of the case are that on the basis of a complaint filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur, FIR No. 0289 dated 15th November 2018 was registered at Police Station, Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the Sub-Divisional Magistrate, Sadar. The Appellant is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which was granted rights to excavate sand vide mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring 12.35 acre in Village Nandni. However, it is alleged that the Appellant was mining sand outside the permitted area in Village Babhni numbered as 534/2 where he had illegally excavated a pit 50 feet long, 50 feet wide and 2 meter deep. Consequently, the District Magistrate had ordered for immediate registration of the FIR under the aforesaid provisions. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted for the offences Under Sections 379/114 and other provisions of the Indian Penal Code on the allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under: 22. Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define 'cognizable offence', 'complaint' and 'investigation' respectively, this Court had referred to Section 4 of the Code, which reads as under: 4. Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests. 6. This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the General Clauses Act, which we would like to reproduce for the sake of convenience: 26. Provision as to offences punishable under two or more enactments.-- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Section 26 of the General Clauses Act permits prosecution for 'different offences' but bars prosecution and punishment twice for the 'same offence' under two or more enactments. The expression 'same offence' has been interpreted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other Sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situation where a person without any lease or licence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State (2009) 109 DRJ 594, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable Under Section 21 of the Mines Regulation Act, the offence would not be punishable Under Section 379 of the Indian Penal Code. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected. 8. We would also reject the contention raised by the Appellant in the written submissions that the alleged theft of sand is not punishable Under Section 379 read with Section 378 of the Indian Penal Code as sand is an immovable property as per Section 3(26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. {See Explanation 1 to Section 378 of the Indian Penal Code and Sanjay (supra) as quoted above} 9. We would in the end refer to the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, Sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of Sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit. 11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State (1995) 1 Cal LT 95 wherein the High Court held the proceedings to be invalid and illegal as the Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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