ASHISH SINGH Vs. STATE OF M. P.

JUDGEMENT

(1.) These two petitions arise out from the same Crime No. 141/18 registered at Police Station Chandera District Teekamgarh. Petitioner has been filed these miscellaneous criminal case under Section 482 of Cr.P.C. being aggrieved with criminal proceeding in the offence under Sections 109, 379 of IPC and Section 53 of M.P. Minor Mineral Rules, 1996 vide Crime No. 141/2018 registered at Police State Chandera District Teekamgarh. Looking to this fact that the similar issues are involved in these petition, therefore, this Court shall decide the same through passing a common order.

(2.) Facts of the case in short are that petitioner-accused Sanad Kumar is registered owner of vehicle (Dumper) No. UP93 AT 9349. Petitioner-accused Ashish Singh is the owner of vehicle (Dumper) No. UP 93 AT 9239 and UP 93 AT 7654. At the time of incident, Sub Inspector- Pradeep Saraf was posted at police station, Chandera. On 05.08.2018 in the night, he was searching the vehicle. At the time of checking four dumpers No. UP 93 AT 9349, UP 93 AT 9239, UP 93 AT 7654 and UP 93 BT 6129 were stopped, in which sand was filled. Sub Inspector-Pradeep Saraf inquired about the sand from the driver, but driver was unable to give any explanation about the said sand. They had no permit for transporting the sand then Dumpers were seized with the sand. First Information was lodged under Section 379 of IPC and Section 53 of MP Minor Mineral Act. Petitioners-accused are also implicated in these cases.

(3.) Learned counsel for the petitioner submits before this Court the criminal proceeding under Section 379 of IPC is illegal and clear violation of the provision of the Minor Mineral Rules. In Minor Mineral Rules there is specific procedure for the enquiry/investigation by the designated officer and after findings the person guilty the provisions of the filing complaint case is provided and because the special penal provisions of this Act are noncognizable, so police directly could not the register the offence. It will be quite apparent from the combined reading of Sections 4,5 and 26 of the Cr.P.C. that if there is special law prescribing the special procedure for investigation of the cases falling under that law, the provisions of the code of Criminal Procedure are not applicable, it is only in the absence of any provision regulating investigation inquiry and trial of non-IPC offence i.e. offence under any other law, investigation, inquiry or trial, shall be as per the Code of Criminal Procedure, Under Minor Mineral Rules specific provisions have been made for the investigation, inquiry and recording of statement of witnesses. Therefore, the provision of the Code of Criminal Procedure would not govern the investigation etc. in respect of the offence under Minor Mineral Rules. The effect of Section 5 of the Cr.P.C.is to render the provision of the code inapplicable in respect of matter covered by special law. This Section clearly excludes the applicability of code in respect of investigation under any special or local law. Therefore, only those officers who have been empowered to investigate under the special law i.e. Minor Mineral Rules can do so and that to in accordance with the special law. Police does out the picture. Code of Criminal procedure also cannot be invoked as on account of specific provisions in the special law, and general provisions contained in the code do not apply. Section 5 of Cr.P.C. provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Cr.P.C. but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiry into, trial or otherwise dealing with such offences. The effect of Section 5 of the Cr.P.C. is to render the provisions of the Cr.P.C. inapplicable in respect of all matters covered by such special law. The principle expressed in the maxim generalia specialibus non-derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Where an act is an offence under a specific law and such an offence can also be punished under that specific law that law then general law would not apply and this is the principle laid down in Section 5 Penal Code. So it is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form and In support of his contention, he has relied the judgment of Apex Court in the case of State of M.P. Vs. Sanjay in Cr.A. No. 499/2011 and he has also relied the Division Bench of this Court in the case of Ramkumar Sahu Vs. State of M.P. and others in W.P. No. 188818/2017. So, petitioner prays for quashing the criminal proceeding for under Sections 109, 379 of IPC and Section 53 of M.P. Minor Mineral Rules, 1996 vide Crime No. 141/2018 registered in Police Sation Chandera.