There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC

Lisa Coutinho | Pravin Gandhi College of Law | 15th March 2020

Kunwar Pal Singh v. State of Uttar Pradesh & anr. Criminal Appeal No. 1920 of 2019.

Facts:

The appellant is the Director of M/s. Kanwar Enterprises Pvt. Ltd., which gave rights to excavate sand vide mining lease over a plot in Village Nandni. However, it was alleged that the appellant was mining sand outside the permitted area in Village Babhni. Consequently, the District Magistrate had ordered for an immediate registration of the FIR under Section 379 of the Indian Penal Code, Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984. The appellant challenged the order passed by the Chief Judicial Magistrate by approaching the High Court under section 482 of the crpc. He also contended the quashing of the criminal prosecution against him, but his petition was dismissed. Aggrieved, he further approaches the Supreme Court under the same contention, impugning the order passed by the High Court.

Issues raised:

1. Whether or not the appellant has been rightly charge-sheeted by the police.
2. Whether the person can be prosecuted for the offence under section 379 of the IPC and any other provisions of the IPC on the allegations of illegal mining in view of section 22 of the Mines Regulation Act.

Judgement:

The Supreme court, after hearing the arguments of the appellant and the respondent took the view that as per section 4(2) of the crpc, the offences specified under section 21 of the Mines regulation act are cognizable. It also said that according to section 41 of the code, police has the power to arrest without warrant in case of cognizable offences. It further stated that investigation of the offences laid within the domain of the police albeit, the power of investigation must be exercised as per the statutory provisions and for legitimate purposes.

The court also took the view that according to section 26 of the General Clauses Act, prosecution for ‘different offences’ is permitted, but prosecution and punishment twice for the ‘same offence’ under two or more enactments is barred, thus, stating that the offence under section 4 read with section 21 of the Mines regulation Act is different from the offence punishable under section 379 of IPC. Furthermore, there is no bar on the court from taking cognizance of the offence under section 379 of IPC. It also observed that violation of section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act.

The Apex court allowed the appeal partly and also upheld the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under section 379 of IPC and sections 3 and 4 of the Prevention of Damage to Public Property Act. It clarified that prosecution and cognizance under section 21 read with section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation.