LEGAL ISSUE: Whether a person can be prosecuted for theft under Section 379 of the Indian Penal Code, 1860 for illegal mining, despite the existence of specific provisions under the Mines and Minerals (Development and Regulation) Act, 1957.
CASE TYPE: Criminal Law
Case Name: Kanwar Pal Singh vs. The State of Uttar Pradesh and Another
Judgment Date: 18 December 2019
Introduction
Date of the Judgment: 18 December 2019
Citation: 2019 INSC 1234
Judges: S. Abdul Nazeer, J., Sanjiv Khanna, J.
Can a person be charged with theft under the Indian Penal Code, 1860 (IPC) for illegally mining sand, or does the Mines and Minerals (Development and Regulation) Act, 1957 (Mines Regulation Act) provide the exclusive legal framework for such cases? The Supreme Court of India recently addressed this question in a case involving allegations of illegal sand mining. This judgment clarifies the interplay between the IPC and the Mines Regulation Act, specifically concerning the prosecution of illegal mining activities. The bench comprised Justices S. Abdul Nazeer and Sanjiv Khanna, with the majority opinion authored by Justice Sanjiv Khanna.
Case Background
The case originated from a complaint filed by Mr. S.K. Pal, a surveyor from the Mines Department in Mirzapur, Uttar Pradesh. On November 2, 2018, during an inspection of a mining site in Village Nandni, the Nayab Tehsildar noticed illegal mining activities. A report was subsequently submitted to the Sub-Divisional Magistrate, Sadar, on November 12, 2018.
The appellant, Kanwar Pal Singh, is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which held a mining lease for sand excavation in Village Nandni, specifically for Plot No. 2/4 and Plot No. 2/5, each measuring 12.35 acres. However, it was alleged that the appellant was illegally mining sand outside the permitted area, in Village Babhni, specifically in area numbered 534/2. It was stated that he had illegally excavated a pit 50 feet long, 50 feet wide, and 2 meters deep.
Following these findings, the District Magistrate ordered the immediate registration of a First Information Report (FIR). Consequently, FIR No. 0289 was registered on November 15, 2018, at Police Station Vindyachal, District Mirzapur, under various provisions of law.
Timeline
| Date | Event |
|---|---|
| November 2, 2018 | Illegal mining noticed during inspection in Village Nandni. |
| November 12, 2018 | Report submitted to the Sub-Divisional Magistrate, Sadar, regarding illegal mining. |
| November 15, 2018 | FIR No. 0289 registered at Police Station, Vindyachal. |
| February 8, 2019 | Chief Judicial Magistrate takes cognizance and summons the appellant for trial. |
| July 22, 2019 | High Court of Judicature at Allahabad dismisses the appellant’s petition for quashing criminal prosecution. |
Legal Framework
The case involves several key legal provisions:
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Section 379 of the Indian Penal Code, 1860 (IPC): This section defines and penalizes the offense of theft. The relevant part of the section states:
“Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” - Section 4 of the Mines and Minerals (Development and Regulation) Act, 1957 (Mines Regulation Act): This section prohibits undertaking prospecting or mining operations without a license or lease.
- Section 21 of the Mines Regulation Act: This section specifies the penalties for contravening the provisions of the Act.
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Section 22 of the Mines Regulation Act: This section states that no court shall take cognizance of any offense punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.
“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.” - Section 482 of the Code of Criminal Procedure, 1973 (CrPC): This section deals with the inherent powers of the High Court to prevent abuse of the process of any court or to secure the ends of justice.
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Section 4 of the Code of Criminal Procedure, 1973 (CrPC): This section outlines the trial of offences under the Indian Penal Code and other laws.
“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 place of investigating, inquiring into, trying or otherwise dealing with such offences.” -
Section 26 of the General Clauses Act: This section addresses offenses punishable under two or more enactments.
“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.” - Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984: These sections deal with the prevention of damage to public property.
The interplay between these provisions is central to the case, particularly the question of whether the Mines Regulation Act provides an exclusive mechanism for dealing with illegal mining, or whether the IPC can also be invoked.
Arguments
The appellant, Kanwar Pal Singh, primarily argued that the prosecution under Section 379 of the IPC was not maintainable due to the existence of the Mines Regulation Act, which is a special statute governing mining activities. The appellant contended that any violation related to mining should be dealt with exclusively under the Mines Regulation Act.
The appellant’s submissions can be categorized as follows:
- Violation of Section 22 of the Mines Regulation Act: The appellant argued that Section 22 of the Mines Regulation Act mandates that cognizance of offenses under the Act can only be taken upon a complaint in writing by a person authorized by the Central or State Government. Since the police are not authorized, they could not have filed the charge-sheet.
- Special Statute Prevails: The appellant contended that the Mines Regulation Act is a special statute, and therefore, prosecution under the general provisions of the IPC, specifically Section 379, is not maintainable. They relied on precedents such as Belsund Sugar Company Limited v. State of Bihar [(1999) 9 SCC 620], Sharat Babu Digumarti v. Government of NCT of Delhi [(2017) 2 SCC 184] and Suresh Nanda v. Central Bureau of Investigation [(2008) 3 SCC 674] to support this argument.
- Distinction of Sanjay (supra): The appellant argued that the judgment in State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772], which allowed prosecution under both the IPC and the Mines Regulation Act, is distinguishable. They argued that *Sanjay* (supra) applies only to cases of illegal mining where no mining lease exists or the lease has been revoked, which is not the case here, as they held a valid lease.
- Sand as Immovable Property: The appellant argued that sand is an immovable property as per Section 3(26) of the General Clauses Act, and therefore cannot be subject to theft under Section 379 of the IPC.
The respondent, the State of Uttar Pradesh, argued that the illegal mining activity constituted theft under Section 379 of the IPC because it involved the dishonest removal of minerals from the possession of the State. They contended that the Mines Regulation Act does not bar prosecution under the IPC for theft of minerals.
The respondent’s submissions can be summarized as follows:
- Offence of Theft: The State argued that the illegal extraction and removal of sand amounted to theft, an offense under Section 379 of the IPC, as it involved the dishonest removal of property belonging to the State.
- Section 26 of the General Clauses Act: The State relied on Section 26 of the General Clauses Act, which permits prosecution under multiple enactments for different offenses, arguing that the offense under Section 21 of the Mines Regulation Act and Section 379 of the IPC are distinct.
- Police Powers: The State argued that the police have the power to investigate cognizable offenses, including theft, and that the Mines Regulation Act does not bar such investigation. The State relied on the judgment in State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772] to support this argument.
The following table categorizes the sub-submissions by main submissions of all sides:
| Main Submission | Sub-Submissions (Appellant) | Sub-Submissions (Respondent) |
|---|---|---|
| Maintainability of IPC Charges |
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| Nature of the Property |
|
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Issues Framed by the Supreme Court
The Supreme Court considered the following key issues:
- Whether the prosecution of the appellant under Section 379 of the IPC is maintainable, given the provisions of the Mines Regulation Act, specifically Section 22.
- Whether the Mines Regulation Act provides an exclusive framework for dealing with offenses related to illegal mining, thereby barring prosecution under the IPC.
- Whether the excavated sand is considered movable property for the purposes of Section 379 of the IPC.
Treatment of the Issue by the Court
The following table demonstrates how the Court decided the issues:
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Maintainability of prosecution under Section 379 of the IPC. | Upheld | The Court held that the offense under Section 379 of the IPC is distinct from the offense under the Mines Regulation Act. The Court relied on Section 26 of the General Clauses Act, which allows prosecution under multiple enactments for different offenses. The Court also held that the police have the power to investigate cognizable offenses. |
| Exclusivity of the Mines Regulation Act. | Rejected | The Court ruled that the Mines Regulation Act does not provide an exclusive mechanism for dealing with illegal mining, and it does not bar prosecution under the IPC for theft of minerals. The Court stated that 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. |
| Nature of excavated sand. | Movable Property | The Court held that once sand is excavated, it loses its attachment to the earth and becomes movable property, capable of being stolen. |
Authorities
The Supreme Court relied on several authorities to support its decision. These authorities are categorized by the legal points they address:
| Authority | Court | Legal Point | How the authority was used |
|---|---|---|---|
| State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772] | Supreme Court of India | Prosecution under both IPC and Mines Regulation Act | This case was heavily relied upon by the Court to hold that the offense under Section 379 of the IPC is distinct from the offense under the Mines Regulation Act. The Court reiterated that the police have the power to investigate cognizable offenses, including theft, and that the Mines Regulation Act does not bar such investigation. This case also clarified that the bar under Section 22 of the Mines Regulation Act applies only when prosecuting for violations of Section 4 of the Act, not for offenses under the IPC. |
| H.N. Rishbud v. State of Delhi [AIR 1955 SC 196] | Supreme Court of India | Effect of illegality in investigation | The Court cited this case to emphasize that a defect or illegality in the investigation does not directly affect the competence or procedure for taking cognizance or trial. |
| Directorate of Enforcement v. Deepak Mahajan [(1994) 3 SCC 440] | Supreme Court of India | Interpretation of law | The Court referred to this case to underscore that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. |
| Maqbool Hussain v. State of Bombay [AIR 1953 SC 325] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Om Parkash Gupta v. State of U.P. [AIR 1957 SC 458] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| State of Madhya Pradesh v. Veereshwar Rao Agnihotri [AIR 1957 SC 592] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| T.S. Baliah v. ITO [AIR 1969 SC 701] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Collector of Customs v. Vasantraj Bhagwanji Bhatia [(1988) 3 SCC 467] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| State of Bihar v. Murad Ali Khan [(1988) 4 SCC 655] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Avtar Singh v. State of Punjab [AIR 1965 SC 666] | Supreme Court of India | Interpretation of “same offence” | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Institute of Chartered Accountants of India v. Vimal Kumar Surana [(2011) 1 SCC 534] | Supreme Court of India | Interpretation of “same offence” and distinguishing Jeewan Kumar Raut (supra) | This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act and also to distinguish the case of Jeewan Kumar Raut (supra). |
| Jeewan Kumar Raut and Another v. Central Bureau of Investigation [(2009) 7 SCC 526] | Supreme Court of India | Cognizance of offences under special statutes | This case was distinguished by the Court. The Court clarified that the provisions of the Transplantation of Human Organs Act, 1994, which were at issue in that case, were different from the provisions of the Mines Regulation Act. The Court noted that the TOHO Act is hedged with a non-obstante clause, which is not present in the Mines Regulation Act. |
| Belsund Sugar Company Limited v. State of Bihar [(1999) 9 SCC 620] | Supreme Court of India | Special statutes vs. general statutes | This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Sharat Babu Digumarti v. Government of NCT of Delhi [(2017) 2 SCC 184] | Supreme Court of India | Special statutes vs. general statutes | This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Suresh Nanda v. Central Bureau of Investigation [(2008) 3 SCC 674] | Supreme Court of India | Special statutes vs. general statutes | This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Seema Sarkar v. State [(1995) 1 Cal LT 95] | Calcutta High Court | Cognizance under both IPC and Mines Regulation Act | This case was overruled by the Supreme Court in Sanjay (supra). The Calcutta High Court had held that the proceedings were invalid because the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC. |
| Sanjay v. State [(2009) 109 DRJ 594] | Delhi High Court | Cognizance under both IPC and Mines Regulation Act | This case was reversed by the Supreme Court in Sanjay (supra). The Delhi High Court had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. |
Judgment
The following table summarizes how each submission made by the parties was treated by the Court:
| Submission | Court’s Treatment |
|---|---|
| Appellant’s argument that Section 22 of the Mines Regulation Act bars police action. | Rejected. The Court held that Section 22 applies only to offenses under the Mines Regulation Act, not to offenses under the IPC. |
| Appellant’s argument that the Mines Regulation Act is a special statute that bars prosecution under the IPC. | Rejected. The Court held that the offenses under the Mines Regulation Act and the IPC are distinct, and Section 26 of the General Clauses Act allows prosecution under both. |
| Appellant’s argument that Sanjay (supra) is distinguishable. | Rejected. The Court held that the principles in Sanjay (supra) apply to the present case. |
| Appellant’s argument that sand is an immovable property. | Rejected. The Court held that once sand is excavated, it becomes movable property. |
| Respondent’s argument that illegal mining constitutes theft under Section 379 of the IPC. | Upheld. The Court held that the dishonest removal of minerals from the possession of the State constitutes theft. |
| Respondent’s argument that Section 26 of the General Clauses Act allows prosecution under multiple enactments. | Upheld. The Court held that the offenses under the Mines Regulation Act and the IPC are distinct, and Section 26 allows prosecution under both. |
| Respondent’s argument that the police have powers to investigate cognizable offenses. | Upheld. The Court held that the police have the power to investigate cognizable offenses, including theft, and that the Mines Regulation Act does not bar such investigation. |
The following table summarizes how each authority was viewed by the Court:
| Authority | Court’s View |
|---|---|
| State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772] | Followed. The Court relied heavily on this case to hold that the offense under Section 379 of the IPC is distinct from the offense under the Mines Regulation Act. The Court reiterated that the police have the power to investigate cognizable offenses, including theft, and that the Mines Regulation Act does not bar such investigation. |
| H.N. Rishbud v. State of Delhi [AIR 1955 SC 196] | Followed. The Court cited this case to emphasize that a defect or illegality in the investigation does not directly affect the competence or procedure for taking cognizance or trial. |
| Directorate of Enforcement v. Deepak Mahajan [(1994) 3 SCC 440] | Followed. The Court referred to this case to underscore that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. |
| Maqbool Hussain v. State of Bombay [AIR 1953 SC 325] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Om Parkash Gupta v. State of U.P. [AIR 1957 SC 458] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| State of Madhya Pradesh v. Veereshwar Rao Agnihotri [AIR 1957 SC 592] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| T.S. Baliah v. ITO [AIR 1969 SC 701] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Collector of Customs v. Vasantraj Bhagwanji Bhatia [(1988) 3 SCC 467] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| State of Bihar v. Murad Ali Khan [(1988) 4 SCC 655] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Avtar Singh v. State of Punjab [AIR 1965 SC 666] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act. |
| Institute of Chartered Accountants of India v. Vimal Kumar Surana [(2011) 1 SCC 534] | Followed. This case was cited to interpret the expression ‘same offence’ under Section 26 of the General Clauses Act and also to distinguish the case of Jeewan Kumar Raut (supra). |
| Jeewan Kumar Raut and Another v. Central Bureau of Investigation [(2009) 7 SCC 526] | Distinguished. The Court clarified that the provisions of the Transplantation of Human Organs Act, 1994, which were at issue in that case, were different from the provisions of the Mines Regulation Act. The Court noted that the TOHO Act is hedged with a non-obstante clause, which is not present in the Mines Regulation Act. |
| Belsund Sugar Company Limited v. State of Bihar [(1999) 9 SCC 620] | Rejected. This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Sharat Babu Digumarti v. Government of NCT of Delhi [(2017) 2 SCC 184] | Rejected. This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Suresh Nanda v. Central Bureau of Investigation [(2008) 3 SCC 674] | Rejected. This case was cited by the appellant to argue that special statutes should prevail over general statutes. However, the Court rejected this argument based on the specific facts and circumstances of the case. |
| Seema Sarkar v. State [(1995) 1 Cal LT 95] | Overruled. The Calcutta High Court had held that the proceedings were invalid because the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC. |
| Sanjay v. State [(2009) 109 DRJ 594] | Reversed. The Delhi High Court had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. |
What Weighed in the Mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to protect public resources and ensure accountability for illegal mining activities. The Court emphasized that the theft of minerals is a serious offense that cannot be overlooked. The Court also stressed the importance of upholding the rule of law and ensuring that those who commit crimes are brought to justice.
The Court’s reasoning was heavily influenced by the following points:
- Protection of Public Resources: The Court highlighted the importance of protecting naturalresources and preventing their illegal exploitation. It recognized that illegal mining causes significant damage to the environment and deprives the State of valuable assets.
- Distinction Between Offenses: The Court clearly distinguished between the offenses under the Mines Regulation Act and the IPC. It held that while the Mines Regulation Act regulates mining activities, the IPC addresses the dishonest removal of property, which is a distinct offense.
- Application of Section 26 of the General Clauses Act: The Court relied on this provision to emphasize that a person can be prosecuted under multiple enactments if the same act constitutes different offenses under those enactments.
- Cognizance of Cognizable Offenses: The Court reiterated that the police have the power to investigate cognizable offenses, including theft, and that the Mines Regulation Act does not bar such investigation.
- Interpretation of Movable Property: The Court held that once minerals are extracted from the earth, they become movable property, capable of being stolen.
- Upholding the Rule of Law: The Court emphasized the importance of ensuring that those who commit crimes are brought to justice. It rejected the argument that the existence of a special statute should shield offenders from prosecution under the general provisions of the IPC.
Final Verdict
The Supreme Court dismissed the appeal filed by Kanwar Pal Singh. The Court upheld the decision of the High Court of Judicature at Allahabad, which had refused to quash the criminal prosecution against the appellant.
The Court held that the prosecution of the appellant under Section 379 of the IPC was valid and maintainable, despite the existence of the Mines Regulation Act. The Court ruled that the illegal mining activity constituted theft under Section 379 of the IPC because it involved the dishonest removal of minerals from the possession of the State.
Flowchart of the Case
Implications of the Judgment
This judgment has significant implications for the prosecution of illegal mining activities in India. The Supreme Court has clarified that the Mines Regulation Act does not provide an exclusive mechanism for dealing with illegal mining, and that offenders can also be prosecuted under the IPC for theft of minerals.
The key implications of this judgment are:
- Dual Prosecution: The judgment confirms that individuals involved in illegal mining can be prosecuted under both the Mines Regulation Act and the IPC. This dual prosecution allows for a more comprehensive approach to tackling illegal mining.
- Police Powers: The judgment reaffirms the power of the police to investigate cognizable offenses, including theft of minerals. This ensures that illegal mining activities can be effectively investigated and prosecuted.
- Protection of State Resources: The judgment underscores the importance of protecting State resources and preventing their illegal exploitation. It sends a strong message that the theft of minerals will not be tolerated.
- Interpretation of Legal Provisions: The judgment provides a clear interpretation of Section 26 of the General Clauses Act, clarifying that a person can be prosecuted under multiple enactments if the same act constitutes different offenses under those enactments.
- Deterrent Effect: By upholding the prosecution under Section 379 of the IPC, the judgment is likely to have a deterrent effect on individuals and companies involved in illegal mining activities.
- Clarity on Movable Property: The judgment clarifies that once minerals are extracted from the earth, they become movable property, capable of being stolen. This interpretation is crucial for the application of Section 379 of the IPC to illegal mining cases.
Conclusion
The Supreme Court’s judgment in the case of Kanwar Pal Singh vs. State of Uttar Pradesh is a landmark decision that clarifies the legal framework for prosecuting illegal mining activities in India. The Court has unequivocally held that the Mines Regulation Act does not bar prosecution under the IPC for theft of minerals. This judgment strengthens the legal arsenal against illegal mining and reinforces the importance of protecting public resources.
By upholding the prosecution under Section 379 of the IPC, the Supreme Court has sent a strong message that illegal mining will not be tolerated and that those who engage in such activities will be held accountable under the full force of the law. This judgment is likely to have a significant impact on the future prosecution of illegal mining cases and will contribute to the protection of India’s natural resources.