Misc. Criminal Case No. 1247 of 1990

10th December, 1991.

Petitioner Counsel: Lokendra Gupta, for s
Respondent Counsel: C. S. Dixit, Learned Dy. Govt. Advocate, .

Cases Cited:
AIR 1990 NOC (MP) 56,1989 MPLJ 281 [Para 15]
AIR 1987 MP 262 (FB),1988 Jab LJ 416 [Para 15]
1983 MPWN 281 [Para 15]
AIR 1978 SC 22,1978 Jab LJ 252 [Para 15]
1971 Cri LJ 680,AIR 1971 SC 815 [Para 12]
1965 (1) Cri LJ 120,AIR 1965 SC 87 (Relied on) [Para 13]
1961 (1) Cri LJ 725,AIR 1961 SC 578 (Relied on) [Para 11]

JUDGMENT

ORDER :-By this petition under S. 482, Criminal Procedure Code, the petitioners have prayed for quashing of the proceedings of the prosecution under S. 379, IPC, pending in Criminal Case No. 144 of 1990 before Judicial Magistrate, First Class, Datia.

2. On a report of cutting of certain trees of mango, 'Mahua', tamarind and 'Khair' standing on some land of a Bhumiswami Shrilal, one of the co-accused, and on the land belonging to the State Government, a case of theft under S. 379, IPC, was registered against five accused persons including the present four petitioners, by P. S. Badoni, District Datia. After investigation the charge-sheet was filed.

3. Before framing of the charge, all the five accused persons raised an objection that from the report and the charge-sheet; facts constituting offence do not make out the offence under S. 379, IPC; the act or omission allegedly committed by the accused persons is a breach of S. 240 of the M.P. Land Revenue Code, 1959 (for short, the 'Code'), which is punishable under S. 253 of the Code. The trial Court observed that Shrilal, the co-accused, has cut the trees of 'Mahua' and mango from the land belonging to him; the petitioners without permission have cut the trees standing on the land belonging to the State Government, and then fixed the case for framing of charge, hence, the petitioners have approached this Court under S. 482, Cr. P.C. for quashment of the prosecution.

4. Shri Lokendra Gupta, learned counsel for the petitioners, contended that if the act of the petitioners constitutes an offence under

two Acts, i.e. under the Penal Code and the special enactment the Code, it is settled that the general law gives way to the special Act; therefore, the offence should be dealt with under the special Act rather than under the general law, and the procedure prescribed in the special Act in view of S. 4(2) Cr. P.C., for inquiry or trial has to be followed. It is settled principle of law that if a statute prescribes a particular manner of doing a thing in a particular mode, that has to be done in that mode alone, other modes being forbidden by law.

5. In order to appreciate the contentions of the petitioners, it is necessary to have a look to the two different penal provisions and their ingredients, so as to find out whether the act amounts same offence in the two Acts.

6. Section 378, IPC, defines theft. S. 379 is a penal Section, providing for punishment of a person who commits theft. To prove the offence, a prosecution has to prove the accused intended to take dishonestly any movable property, out of the possession of another person, without his consent, removes the same in order of taking it. Under S. 378(a) to (p) of S. 378 are some of the illustrations of theft. Illustration (a) relates to an act of cutting a tree. From that, it is clear that as soon as a tree is cut or severed standing on another's ground with the intention of removing it dishonestly, the offence of theft is committed.

7. Sections 240 and 253 of the Code read as under :-

"240. Prohibition of cutting of certain trees. - (1) If the State Government is of the opinion that the cutting of any tree is detrimental to public interest or that it is necessary to prohibit or regulate the cutting of certain trees for preventing erosion of soil, it may, by rules made in this behalf, prohibit or regulate the cutting of such trees, whether such trees stand on the land belonging to Bhumiswami or on land belonging to State Government.

(2) In framing rules under Sub-Sec. (1), the State Government may provide that all or any of the rules shall apply only to such area as the State Government may, by notification, specify.

(3) The State Government may make rules regulating the control, management, felling or removal of the forest growth on the lands belonging to the State Government."

"253. Punishment for contravention of provisions.- (1) Except as otherwise provided in this Code, any person who acts in contravention of the provisions of this Chapter or rules made thereunder or who contravenes or fails to observe any rules or custom entered in the Wajib-ul-arz or commits a breach of any entry entered in the Nistar Patrak, shall be liable to such penalty not exceeding one thousand rupees as the Sub-Divisional Officer may, after giving such person an opportunity to be heard, deem fit and the Sub-Divisional Officer may further order confiscation of any timber, forest produce, or any other produce which such person may have appropriated or removed from lands belonging to the State Government.

(2) Where any contravention, breach or. non-observance punishable under Sub-Sec. (1) has been committed by the Gram Sabha, every office bearer of the Gram Sabha shall be liable under the Sub-Section unless he proves that the contravention, breach or nonobservance took place without his knowledge or that he exercised all due diligence to prevent such contravention, breach or nonobservance.

(3) Where the sub-Divisional Officer passes an order imposing a penalty under this Section, he may direct that the whole or any part of the penalty may be applied to meet the cost of such measures as may be necessary to prevent loss or injury to the public owing to such contravention, breach or non-observance."

8. S. 240 of the Code lays down the provision regulating or prohibiting certain specified trees, cutting of which is detrimental to public interest or will cause erosion of soil.

For that the State Government has framed rules under S. 240(3) of the Code, known as "Prohibition or Regulation of the Cutting of Trees in Public Interest or for Preventing erosion of soil."

9. Section 240 of the Code limits the rights of persons including Bhumiswamis to cut the trees standing on the holding. If a Bhumiswami or a person cuts any tree which is detrimental to public interest or causes of erosion of soil, such act contravenes the Rules and the person doing the act is liable to be punished under S. 253, a residual penal provision.

10. A look to S. 253 shows that the penalty prescribed under Sub-Sec. (1) and the powers given under Sub-Sec. (3) make this Section Penal and deterrent as well as compensatory, so that the commission of similar act or offence be not repeated. Hence; the proceedings under S. 253 are criminal or quasi-criminal in nature. But, there is nothing in the Section or in the Code, expressly or impliedly, to infer that the Legislature intended to exclude applicability and operation of the general criminal law. It is well settled that even where an act is punishable under a special statue as well as under a general law, the offender could be prosecuted under either or both, but could not be punished twice for the same act or omission constituting an offence, in view of S. 26 of the General Clauses Act, 1897, which is quoted hereunder :-

"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."

11. A bare look to the phraseology of this Section shows that the ban created applies not to the "act or omission constituting an offence under two or more enactments," the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged. If the offenced are not the same but are distinct or made up of different ingredients, the ban imposed cannot be invoked. (See The State of Bombay v. S. L. Apte, AIR 1961 SC 578 : (1961 (1) Cri LJ 725).

12. It is also settled that the two provisions in two Acts may have conterminous fields of operation. Both the Acts can function with full vigour side by side in their own parallel channels. Even if they happen, to some extent, to overlap, S. 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. That is what has been observed by the apex Court while considering a case under the Prevention of Food Adulteration Act, 1954, and Fruit Products Order, 1955. See Delhi Municipality v. Shiv Shankar, AIR 1971 SC 815 : (1971 Cri LJ 680).

13. In case of Manipur Administration v. Bira Singh, AIR 1965 SC 87 : (1965 (1) Cri LJ 120), while considering a plea of rule as to, issue of estoppel under S. 403, Criminal Procedure Code, 1898 S. 300, Cr. P.C. 1973, and the provisions contained in Art. 20(2) of the Constitution of India as well as S. 26 of the General Clauses Act, 1897, the Supreme Court referring to its earlier decision in S. L. Apte's case (supra), observed in para 6 that both in case of Art. 20(2) of the Constitution as well as S. 26 of the General Clauses Act, to operate as a bar, the second prosecution and the consequential punishment thereunder must be for "the same offence," i.e., an offence whose ingredients are the same.

14. view of the settled position, as rightly contended by Shri C. S. Dixit, learned Dy. Govt. Advocate, it is clear that if an act makes two 'separate and distinct' offences created by different statutes, and the allegations in the two are not identical, the bar of S. 26 of the General Clauses Act, 1897, will not apply.

15. Reliance of Shri Gupta on the decisions in cases of Nai Bahu v. Lala Ramnarayan, AIR 1978 SC 22 : (1978 JLJ 252);

Rajiv Khandelwal v. Arun Pannalal, 1988 JLJ 416 : (AIR 1987 MP 262 (FB); Mahendra Kumar v. Anand, 1989 MPLJ 281 : (AIR 1990 NOC (MP) 56 and Madhosingh v. Hiralal, 1983 MPWN 281, has no application, as the cases do not deal with the case like this. act of theft is essentially different from the act constituting the offence under S. 240 of the Code, which makes the act punishable; the two acts are not the "same offence", as the ingredients of the two are different, making the two Acts as "distinct" offences, hence, the bar under S. 26 of the General Clauses Act, 1897, cannot be invoked. Therefore, the contention of Shri Gupta, that the petitioners cannot be tried for the offence under S. 379, IPC, and can only be dealt with under the special enactment - the Code, has no merit.

16. In the result, the petition is dismissed. The stay order passed by this Court on 17-8-1990 is vacated. The trial Court is directed to proceed with the case expeditiously in accordance with law.

Petition Dismissed