‘Strength of judge lies in admitting error’: Kerala High Court clarifies sand theft can attract BNS charges

Justice Kauser Edappagath was deciding a batch of anticipatory bail applications filed in cases related to illegal sand transportation on March 9.

Justice Kauser Edappagath found that the Kerala High Court has previously held that sand theft cannot be considered as an offence under the BNS. (Image is enhanced using AI)

“To persist with an error is not virtuous; correcting it is a duty of judicial integrity. The strength of a Judge lies not in the claim of infallibility, but in the courage to admit error and the humility to correct it when conscience and law reveal a truer course,” the Kerala High Court said while granting pre-arrest bail to a few of the accused and denying it to others. 

‘Same offence, different statutes’ 

• When a single judge renders a judgment without recognising a binding precedent and relevant statutory provisions, the same Judge is justified in subsequently differing from that earlier view. 
• The high court noted that the issue of considering the theft of sand under BNS has been answered negatively in three different cases by the court itself, where one matter was listed before the present judge only.
• It was placed on record that the prosecution’s allegation in all the crimes against the accused is that they transported river sand belonging to the government without complying with the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 

• It was also noted that they were prosecuted for the offences punishable under the Sand Act, as well as provisions under the Bharatiya Nyaya Sanhita, 2023. 
• There cannot be any doubt that the same set of facts can constitute offences under two different statutes. 
• An act or an omission can amount to and constitute an offence under the BNS/IPC and at the same time an offence under any other law. 
• Section 26 of the General Clauses Act, 1897 dictates that where an act or omission constitutes an offence under two or more enactments, the offender may be prosecuted and punished under any one of them. However, the person shall not be punished twice for the same offence. 

‘Sand Act and its objective’

• The high court pointed out that the Sand Act was brought in to protect riverbanks and river beds from large-scale dredging of river sand, to protect their biophysical environment system, regulate the removal of river sand and for matters connected with the same.
• The Preamble to the Act pointedly shows that the ultimate object sought to be achieved and the requirement that should not fail is to provide regulatory measures as part of environmental management. 
• Section 20 of the Sand Act provides the penalty for contravention of the provisions of the Act or the rules made thereunder. 
• Section 21 provides the penalty for abetment of any offence punishable under the Act.
• Section 22 provides that nothing in the Act shall prevent any person from being prosecuted under any other law, for the time being in force, for any act or omission made punishable under the Act. 
• The Sand Act does not explicitly or implicitly exclude the provisions of the IPC. 
• On the other hand, Section 22 of the Act specifically permits prosecution under any other law for any act or omission made punishable under the Act. 
• It means that if the act or omission resulting in the violation of Section 23 of the Sand Act also amounts to an offence punishable under any other law, including the IPC, the offender can be prosecuted under both the enactments. 

‘Wrongly charged under BNS’

• Appearing for the accused, their advocates argued that they had been wrongly charged for the offence under BNS, as at best there was a violation of provisions of the Sand Act.
• It was further argued that the Sand Act, being a special statute regulating the removal of river sand, prosecution for an offence under the BNS is not maintainable. 
• They argued that where there is a special statute dealing with a special subject, resort cannot be taken to a general statute like BNS. 

• It was further mentioned that since the offence under the Sand Act is bailable in nature, and the offence under the BNS is not maintainable, the accused are entitled to pre-arrest bail. 

‘Sand Act and prosecution under BNS’

• The Public Prosecutors, on the contrary, argued that the offence under Section 23  and Section 20 of the Sand Act is different from the offence of theft under the BNS, and hence initiation of prosecution for the offence under the BNS in addition to the offence under the Sand Act is not barred. 
• They further argued that Section 22 of the Sand Act specifically permits the prosecution under any other law for any act or omission made punishable under the Sand Act.
• The public prosecutors submitted that the alleged incident occurred as a part of the intentional criminal acts of the accused, and if they are released on bail at this stage, it will affect the course of the investigation.