Magistrate Can Order Registration of FIR U/S 156(3) For Offences Under Mines And Minerals Act,No Bar U/S 22: Supreme Court

The Supreme Court has observed that the bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, is not attracted when a Magistrate in exercise of powers under Section 156(3) of the Code of Criminal Procedure orders/directs the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules.

The bench comprising Justices Ashok Bhushan and MR Shah summarized the legal position as follows:

1. The learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned Incharge/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;
2. The  bar under Section 22 of the MMDR Act shall be attracted 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;
3. 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
4. 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 In­charge/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 In­charge 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 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 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 that stage it can be said that cognizance has been taken by the learned Magistrate.

In this case, the Judicial Magistrate, First Class, Mandsuar, after taking note of a newspaper report about illegal excavation/transportation of mineral sand from Chambal, Shivna and Retam and other Tributary rivers 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. Consequently, FIRs for the offences under Sections 379 and 414, IPC, Sections 4/21 of the Mines & Minerals (Development & Regulation) Act, 1957  and under Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006.

The accused moved the High Court seeking quashing of the FIR contending that in view of bar under Section 22 of the MMDR Act, the order passed by the learned Magistrate directing to register the FIRs is unsustainable.  It was further contended that since 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, thereafter the Magistrate was not justified in directing to initiate fresh proceedings which would be hit by the principle of "double jeopardy". The High Court dismissed the petition, upholding the FIRs.

In appeal, the Apex Court bench, referring to State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 observed that 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 would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act 17 and not for any act or omission which constitutes an offence under the Penal Code.

The Court noted that the Section 22 provides that the 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 and therefore the the bar would be attracted when the Magistrate takes cognizance. The court referring to various judgments, observed:

"When an order is passed by the Magistrate for 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 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."

Another contention raised in this case was that, once the proceedings have been compounded under the Act or Rules made thereunder, no further proceedings can lie. Partly allowing the appeal( to the extent quashing the proceedings for the offences under the MMDR Act – Sections 4/21 of the MMDR Act), the bench observed: 

"In a case where the violator is permitted to compound the offences on payment of penalty as per sub­section1 of Section 23A, considering sub­section 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 sub­section 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 proceeded with further.

Case: Jayant vs. State of Madhya Pradesh [CRIMINAL APPEAL NOS.824­825 OF 2020]

Coram: Justices Ashok Bhushan and MR Shah

Counsel: Sr.Adv Devadatt Kamat 

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