Kerala High Court judge overrules own verdict in sand mining case as per incuriam

The Kerala High Court recently clarified that illegal sand mining can attract prosecution not only under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act) but also for theft under the Bharatiya Nyaya Sanhita, 2023 (BNS). [Vineesh v State of Kerala and connected cases]

Justice Kauser Edappagath was deciding a batch of anticipatory bail pleas involving allegations of illegal transportation of river sand.

Interestingly, the judge said that his earlier judgement rendered in 2021 in the case of Mohammed Noufal v State of Kerala, where he had decided that only the Sand Act would apply in such cases, was incorrect.

He stated that it was rendered without considering the binding legal provisions and Supreme Court precedents and was hence, per incuriam (rendered in ignorance of binding law).

The judge stressed that when such an error comes to light, a judge can depart from the earlier view by acknowledging the mistake and correcting it, which is a part of judicial responsibility and integrity.

"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. Therefore, 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. For these reasons, I am persuaded by my judicial conscience to differ from my earlier view in Mohammed Noufal (supra)," the judge stated.

The anticipatory bail applications arose from multiple cases involving illegal transportation of river sand in the districts of Malappuram and Kozhikode.

The accused were booked under Sections 20 and 23 of the Sand Act for illegal sand mining along with provisions relating to theft under Sections 303(2) and 305(e) of the BNS.

The key issue before the Court was whether the provisions of the BNS could be invoked against the accused for the act of illegal sand removal which was already punishable under the Sand Act.

The Court noted that three single-judge decisions of the High Court, including one authored by Justice Edappagath himself, had answered this question in the negative.

However, during the hearing, the senior public prosecutor pointed out that the above three decisions were per incuriam as they overlooked Section 22 of the Sand Act which allows prosecution under other laws and Section 26 of the General Clauses Act which permits prosecution under multiple statues for the same act, provided there is no double punishment.

The State also relied on Supreme Court decisions which allowed parallel prosecution when the ingredients of the offences differed. The State argued that illegal sand removal could simultaneously constitute violations under the Sand Act as well as the BNS.

The Court accepted the State's submission. It noted that the Sand Act did not exclude the application of theft provisions under BNS and explained that the offences under the two laws were distinct.

While the Sand Act penalised unauthorised removal or transport of sand, theft involved dishonest removal of property belonging to another and therefore, both offences could be made out on the same set of facts.

More importantly, the Court declared that its earlier ruling in Mohammed Noufal and the two other subsequent decisions following it, were per incuriam as they were rendered without considering the relevant provisions and the binding Supreme Court precedents.

"This Court is convinced that a mistake was made in the aforementioned order in Mohammed Noufal," the Court added.

While a judge could not normally depart from an earlier ruling without referring the issue to a larger bench, this rule would not apply in this case because the earlier judgement of this Court was per incuriam and not binding, the judge ruled.

"A decision is considered per incuriam if it is made in ignorance of a binding precedent or a relevant statutory provision that significantly affects the outcome. A decision made per incuriam has no binding precedent force," the Court added.

With respect to the bail applications, the Court granted relief to six accused after noting their role was limited, and the investigation was almost complete with no further custodial interrogation required.

However, it refused bail to three accused after observing that the allegations against them were serious in nature, including attempts to evade law enforcement and that some had prior criminal antecedents.

Senior public prosecutor MC Ashi appeared for the state.

[Read Order]