1. Accused Nos.2, 4 and 7 in Crime No.VC.02/2021 of the Vigilance and Anti-Corruption Bureau, Kozhikode, have preferred this Crl.M.C. under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (2023), seeking the following prayers:

                  (i)       Call for the records leading to Annexure A-1

                  (ii)      Quash Annexure A-1 FIR and all proceedings pursuance to the same against the petitioners.

                  and

                  (iii)     issue such other orders as this Hon'ble Court deem just and proper.

2. Heard the learned counsel for the petitioners and the learned Special Public Prosecutor.

3. The prosecution case, as per the FIR, is that the accused persons, who are the Revenue officials of Thamarassery Taluk Office, seized vehicles which were found to be used for illegal transportation of soil, mines and minerals from 02.01.2015 to 25.05.2016, illegally compounded the offence and fined the offenders by corruptly accepting a meagre amount of Rs.4,17,000/- instead of Rs.15,25,000/-, and thereby caused a loss of Rs.11,08,000/- to the State Exchequer. On this premise, the prosecution allegation is that the accused committed offence under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act, 1988' hereinafter).

4. While assailing the allegations against the petitioners, the learned counsel for the petitioners mainly asserted two points. The first point is that, insofar as imposition of lesser fine by the petitioners as alleged by the prosecution is concerned, the same would not stand in the eye of law. In view of the decision of this Court in Annexure A2, a batch of writ petitions, i.e. W.P.(C).No.14605/2015 (A) and other cases, this Court considered the question as to whether any minimum amount for compounding the offence of this nature by the Government. In paragraph No.24 of the said judgment after referring the compounding provision in Kerala Minor Mineral Concession Rules, 2015 (for short, ‘the KMMC Rules 2015' hereinafter), this Court found that no clear guidelines were laid down as to how the fee should be determined and unbridled power on the authority to exercise discretion either excessively, prejudicing an alleged offender or subverting the deterrent measure intended by the Legislature and the executive Government by levy of nominal fees, could be gathered. At the same time, this Court found that the penal provision in the Mines and Minerals (Development and Regulation) Act, 1957 (for short, ‘the MMDR Act, 1957’ hereinafter), if taken as a guideline, the compounding exercise could not be left to the absolute discretion of the authority. Thus, the argument of the learned counsel for the petitioners is that thereafter Annexure A3 G.O.(Ms) No. 51/2017/ID, dated 21.06.2017 was issued by the Industries Department of the Government of Kerala prescribing a minimum compounding fee, and prior to that, no minimum compounding fee had been fixed. Therefore, the fixation of a lesser amount as compounding fee, in the absence of any minimum limit, by exercising the discretion of the officers concerned, would not constitute an offence.

5. The next point argued by the learned counsel for the petitioners is to nullify the contention raised by the prosecution that the petitioners and other accused persons were not authorized to compound the offence. According to the learned counsel for the petitioners, as per Annexure A14 S.R.O.No.860/1995, dated 22.06.1995 in conformity with clause (iv) of Rule 3 of the Kerala Minor Mineral Concession Rules, 1967, notification was issued and as per the notification, the officials of the Revenue Department, viz., Tahsildar, Revenue Divisional Officer, District Collector, Municipal Secretary, Municipal Council, Panchayat Secretary, Panchayat, Divisional Forest Officer and Director of Mining and Geology, were notified as the competent officers to compound the offences. It is pointed out by the learned counsel for the petitioners further that thereafter, the Kerala Minor Mineral Concession Rules, 1967, were superseded and replaced by the Kerala Minor Mineral Concession Rules, 2015, which were notified with effect from 07.02.2015 and as on 05.06.2015, G.O. (P)No.77/2015/ID was issued in terms of Section 22 of the MMDR Act, 1957 in suppression of the notifications issued under G.O.(P)No.170/2010/ID, dated 04.08.2010 and now, the competent officers to compound the offences are the Director/Additional Director/Deputy Directors of the Department of Mining and Geology, all District Collectors in the State, Senior Geologists /Geologists/Assistant Geologists of the District Offices of the Department of Mining and Geology, Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral     Squad (Northern Region), Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral Squad (Central Region) and Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral Squad (Southern Region). Therefore, w.e.f. 05.06.2015, the officers mentioned in Annexure A14 S.R.O.No.860/1995 and the officers mentioned in the new Government Order are empowered to compound the offences.

6. In this connection, learned counsel for the petitioners pointed out that there are decisions of the Apex Court on the operation of repealed Acts when there is no inconsistency between the repealed Act and the new Act. In this regard, reliance is placed on Sections 6 and 24 of the General Clauses Act, 1897. The learned counsel further submitted that in State of Punjab v. Harnek Singh reported in [2002 KHC 1203], the Apex Court addressed somewhat similar questions in paragraph Nos.14 and 15, which read as under:

                  14.     For deciding the controversy it is also necessary to take note of the provisions of S.6 and 24 of the General Clauses Act which provide as under: "6. Effect of repeal. - Where this Act, or any Central Act or Regulation made after the commencement of this act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

                  (a)      revive anything not in force or existing at the time at which the repeal takes effect; or

                  (b)      affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder: or

                  (c)      affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

                  (d)      affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

                  (e)      affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid,. and any such, investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

                  xx    xx         xx    xx   xx   xx    xx

                  24.     Continuation of orders, etc., issued under enactments repeated and re-enacted - Where any Central Act or Regulation is, after the commencement of this Act, repealed and re- enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, or bye law made or issued under the repealed Act or Regulation shall so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until  it  is  superseded  by  any  appointment, notification, order, scheme, rule form or bye law made or issued under the provisions so re- enacted and when any Central Act or Regulation, which, by a notification under S.5 or 5A of the Scheduled District Act, 1874 (XIV of 1974), or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re- enacted in such area of part within the meaning of this section."

                  15.     The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. The object of this Act is to shorten the language of Central Acts, to provide as far as possible, for uniformity of expression in Central Acts, by giving definition of series of terms in common use, the state explicitly certain convenient rules for the construction and interpretation of Central Acts, and to guard against slips and oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act. In other words the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded. Even in cases where the provisions of the Act do not apply courts in the country have applied its principles keeping in mind the inconvenience that is likely to arise otherwise, particularly when the provision made in the Act are based upon the principles of equity, justice and good conscience.

                  The Apex Court further held in paragraphs 25 and 26 of the said decision, as under :

                  25.     To justify the impugned judgment and to impress upon us the inconsistency in the two provisions, the learned counsel appearing for the respondents referred to some communications included in the paper-book from pages 109 to 120. It is submitted that the aforesaid correspondence in the form of Annexure P-2 to P-5 showed that the Government had applied its mind under the re- enacted law and took a conscious decision that Inspectors of Police were not competent to investigate the offences punishable under the new Act and that only officers above the rank of Dy.Superintendent of Police should investigate the cases under the Act. Reference to the aforesaid letters is bases upon misconception. In none of the letters the Government is shown to have taken any decision as argued. The aforesaid documents are the letters exchanged between different officials of the Police Department of the State of Punjab which are not referable to any specific decision of the State Government. In the Memo of Appeal and the Rejoinder Affidavit filed on behalf of the State it is specifically submitted that the proceedings of the high level meeting presided over by the Chief Secretary, referred to by the respondents as decision of the Government,

                  "is internal communication between different wings of the Government and cannot be made basis to conclude that State Government had neither any intention to keep alive the notifications under the Old Act of 1947 nor have any intention to empower the Inspector of Police in the Vigilance Department to investigate the afresh cases. It is also relevant that as per the Old Act, since there were notifications which were valid under the New Act by virtue of S.6 and 24 of General Clauses Act unless these were formally rescinded, the same hold good and the notings on the file to any effect cannot be made basis for striking down those notifications".

                  26.     It is, therefore, evident that the notifications issued by the Government of Punjab, in exercise of the powers conferred under S.5A of the 1947 Act, empowering and authorising the Inspectors of Police posted in Special Inquiry Agency of the Vigilance Department, Govt. of Punjab to investigate the cases registered under the said Act were saved under the saving provision of the re- enacted 1988 Act. Such notifications are not inconsistent with the provisions of re-enacted Act and are deemed to continue in force as having been issued under the re-enacted 1988 Act till the aforesaid notifications are specifically superseded or withdrawn or modified under the 1988 Act. The investigation conducted by the Inspectors of Police authorised in that behalf under the 1947 Act are held to be proper, legal and valid investigation under the re-enacted Act and do not suffer from any vice of illegality or jurisdiction.

                  The High Court committed a mistake of law in holding the aforesaid notifications as not saved under the re-enacted 1988 Act. The quashing of the proceedings on the basis of the First Information Report registered against the respondent accused was illegal and contrary to the settled position of law. The judgment of the High Court, impugned in these appeals, is, therefore, liable to be set aside.

7. In addition to that, the learned counsel for the petitioners placed the earlier decision of the Apex Court in Chief Inspector of Mines v. Karam Chand Thapar reported in [1961 KHC 583] with reference to paragraph Nos.9, 12, 20 and 21 which read as under:

                  “9. The present is a case, where the Mines Act, 1923, was repealed, and was reenacted with modifications as the Mines Act, 1952: S.29 of the 1923 Act empowering the Central Government to make regulations consistent with the Act for specified purposes was reenacted in the 1952 Act As S.57: regulations were made in 1926 under S.29 of the 1923 Act, but at the relevant date, in 1955, no regulations had been made under S.57 of the 1952 Act, so that in 1955 the Mines Regulations, 1926, had not been superseded by any regulations made under the reenacted provisions of S.57 of the 1952 Act: Therefore is S.24 of the General Clauses Act is operative, the Mines Regulations, 1926, were in force at the relevant date in 1955, and shall be deemed to have been made under S.57 of the 1952 Act, as there is no provision express or otherwise, in the later Act to the contrary, and the regulations are not inconsistent with the reenacted provisions.

                  12. In attempting to answer this question, it will be profitable to remember that the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different acts and regulations. Whatever the General Clauses Act says, whether as regards the meanings of words or as regards legal principles, has to be read into every statute to which it applies. The Mines Act, 1923, being a Central Act, S.24 of the General Clauses Act, 1897, applies to it, so that we have to read in the Mines Act, 1923 an additional provision embodying the words of S.24 of the General Clauses Act. The result is that we have in this Mines Act of 1923 on the one hand the provision that the regulations made under S.29 of the Act will have effect as if enacted in the Act and on the other, the further provision, that regulations made under S.29 shall continue to remain in force when this Act is repealed and reenacted and be deemed to have been made under the reenacted provisions, it is otherwise expressly provided, unless and until superseded by regulations made under the reenacted provisions.

                  20. The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost. Therefore, with regard to the effect of a repeal of the Act, they continue to be subject to the operation of S.24 of the General Clauses Act.

                  21. For the reasons given above, we have no hesitation in holding that the provisions of S.31, sub-sec. 4, of the Mines Act, 1923, do not stand in the way of the full operation of S.24 of the General Clauses Act, 1897, and that in consequence of these provisions the Coal Mines Regulations, 1926, continued to be in force at the relevant date and have to be deemed to be regulations made under the Mines Act, 1952.”

8. The learned counsel further placed the decision of the Apex Court in Poonjabhai Varmalidas v. Commissioner of Income Tax reported in [1990 KHC 577]. The said decision was referred to as having some relevance to the issue arising in the present case.

9. Whereas, it is submitted by the learned Special Public Prosecutor that insofar as the decision in State of Punjab v. Harnek Singh’s case (supra) is concerned, what the Supreme Court stated in paragraph No.26 is that the notifications issued under Section 5A of the Prevention of Corruption Act, 1947 Act were saved under the re-enacted Prevention of Corruption Act, 1988, as they were not inconsistent with its provisions, and were deemed to continue in force until superseded, withdrawn or modified under the 1988 Act.

10. In the instant case, according to the learned Special Public Prosecutor, with introduction of the KMMC Rules, 2015, the officers empowered under Annexure A14 G.O. had no power to compound the offences, and the officers mentioned in the new G.O., dated 05.06.2015, G.O.(P)No.77/2015/ID viz., the Director/Additional Director/Deputy Directors of the Department of Mining and Geology, all District Collectors in the State, Senior Geologists /Geologists/Assistant Geologists of the District Offices of the Department of Mining and Geology, Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral Squad (Northern Region), Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral Squad        (Central Region) and Senior Geologist/Geologist/Assistant Geologist of the Kerala Mineral Squad (Southern Region), are the only officers empowered to undertake that exercise. It is submitted that the prosecution has been maintaining this stand from the very beginning.

11. At this juncture, it is pointed out by the learned counsel for the petitioners that since the new G.O. came into force only with effect from 05.06.2015, insofar as the 4th accused, Latheesh Kumar K., and the 7th accused, Valakkulavan Sreedharan, are concerned, they had exercised the said power before the new G.O. came into force and therefore, the action taken by them is governed by Annexure A14 G.O. It is also submitted that since no minimum compounding fee was effected, and as per Annexures A5 to A12, the Geologists who were empowered under the new G.O. also imposed a fine to the tune of Rs.5,000/-, no loss has been sustained to the Government.

12. It is relevant to note that as per the statement filed by the petitioners as Annexure A13 and the statement filed by the Investigating Officer, it could be seen that as far as accused Nos.4 and 7 are concerned, they had compounded the offence for a lesser amount before coming into force of the new G.O. and therefore, as per Annexure A14, they were empowered to compound the offences. Since Annexure A3 G.O., which fixed the minimum fee for compounding, came into force only in 2017, the contention raised by the learned counsel for the petitioners, insofar as accused Nos.4 and 7 are concerned, would definitely succeed, as they had not committed any offence.

13. It is evident from the statement filed by the prosecution that  as  regards  to  the  2nd  accused  Praveen Kumar.P.N. is concerned, even though he had compounded 13 cases, out of the same, 7 cases were compounded after the new G.O. Now, the question poses for consideration is whether the 2nd accused also is empowered to compound the offence after the issuance of the new G.O. in terms of the decisions referred.

14. On reading the decisions, in juxtaposition with the statutory wordings and issuance of G.O.(P)No.77/2015/ID, dated 05.06.2015, the legal position is emphatically clear. Indubitably, when there is no inconsistency between the old provisions of the enactment and the provisions of the new enactment and the provisions which are not inconsistent which are saved by the repealed enactment, both provisions deemed to be in force in terms of Sections 6 and 24 of the General Clauses Act, 1897, and if there is inconsistency, the provisions of the repealed enactment would prevail over the provisions of the old enactment, and the provisions of the old enactment or the Government Orders issued, based on the strength of the provisions of the old enactment would have no operation. Then the repealed provisions and orders issued thereof will be in operation in suppression of the provisions of the old enactment and the orders issued thereof ceased to be in operation. Be it so, in view of introduction of the KMMC Rules, 2015, the officers empowered under Annexure A14 G.O. had no power to compound the offence under the MMDR Act, 1957 and the KMMC Rules, 2015 and the power has been fully vested to the officers mentioned in the G.O.(P)No.77/2015/ID, dated 05.06.2015, in suppression of Annexure A14. Therefore, relying on Annexure A14 G.O., the officers mentioned therein could not exercise the power of compounding on and after 05.06.2015.

15. Now comes the significance of the contention raised by the learned counsel for the petitioners that, even if, on account of a misunderstanding or without notice of the subsequent G.O., the 2nd accused compounded the offences, no monetary loss was caused to the State. This is for the reason that no minimum compounding fee had been prescribed during the relevant period; and, as is evident from Annexures A5 to A12, even the Geologists, who were duly empowered under the new G.O., had not imposed any minimum compounding, since no minimum fee had been fixed by the Government. In such circumstances, the mere fixation of a lesser amount by the 2nd accused, prior to the coming into force of the G.O. prescribing a minimum compounding fee, cannot, by itself, be construed as constituting any offence.

16. As far as the prosecution allegation against the 2nd accused is concerned, he had compounded the offences even after the introduction of the amended KMMC Rules, 2015 and the issuance of G.O.(P) No.77/2015/ID dated 05.06.2015. It is revealed from the materials produced by the prosecution that the compounding done by the 2nd accused in respect of 7 cases pertaining to TR-5 Book No.9591 and Receipt Nos.959043, 959044, 959047, 959048, 959049, 959068 and 959069 was without any authority. Therefore, the investigation as against the 2nd accused shall go on to culminate the same by filing final report.

17. In view of the matter, quashment of the FIR sought for by the 2nd accused/1st petitioner herein is liable to fail, while quashing the case as against accused Nos.4 and 7/petitioners 2 and 3 herein.

                  In the result, this petition is allowed in part. The entire prosecution as against accused Nos.4 and 7/petitioners 2 and 3 herein in Crime No.VC.02/2021 of the Vigilance and Anti- Corruption Bureau, Kozhikode, stand quashed, while disallowing the quashement plea at the instance of the 2nd accused/1st petitioner herein.

                  The interim order of stay granted by this Court, stands vacated.