State v. Mohd. Kamal
Case Details
Court No. - 65 Case :- APPLICATION U/S 482 No. - 10940 of 2023 Applicant :- Mohd. Kamal @ Raju And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Munna Babu Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Legal Reasoning
Heard learned counsel for the applicants, learned AGA for the State and perused the record. This application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash charge-sheet dated 13.06.2017 and summoning order dated 09.01.2023 as well as entire proceedings of Case No.160 of 2023 (State Vs. Mohd. Kamal @ Raju and others) arising out of Case Crime No. 0169 of 2017, under Sections 3/57/70 of U.P. Minor Minerals (Concession) Rule, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, Police Station Jahanganj, District Farrukhabad. Brief facts giving rise to this application is that on 10.05.2017, a Police party headed by S.I. Sureshchand was on patrolling duty and when they reached ahead of J.K. Bhatta, it was found that certain persons were illegally digging soil from a field by JCB machine and two persons were standing nearby. It is further alleged that when the police party reached at the place of incident, then the driver of the JCB and two other persons taking advantage of the darkness made their escape good, the JCB machine was seized on the basis of the recovery memo a FIR No. 169 of 2017 was lodged against the applicants under Sections 3/57/70 of the U.P. Minor Minerals (Concession) Rules, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957. After registration of the FIR, the Police thoroughly investigated the matter and after recording statement of the witnesses under Section 161 Cr.P.C. submitted charge-sheet against the applicants. On the basis of which, the learned Magistrate has taken cognizance under Section 4 read with Section 21 of the Mines and Minerals (Development and Regulations) Act, 1957 and Section 3/57/70 of the U.P. Minor Minerals (Concession) Rules, 1963 vide order dated 09.01.2023. Being aggrieved and dissatisfied by the said order dated 09.01.2023, the present application u/s 482 Cr.P.C. has been filed. Learned counsel for the applicant has submitted that the impugned order dated 09.01.2023 taking cognizance of the offence and summoning the applicant to face trial on the basis of charge-sheet is wholly illegal, without jurisdiction and liable to be set aside. Learned counsel for the applicants has drawn the attention of the Court to Rule 74 of the U.P. Minor Minerals (Concession) Rules, 1963 which provides "74. Cognizance of offences. - (1) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the fact constituting such offence by the District Officer or by any officer authorised by him in this behalf. Learned counsel for the applicants has further submitted that for an offence under Section 4 read with Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the 'Act'), no cognizance can be taken on the basis of police report. To substantiate his argument, he has drawn the attention of the Court to the provisions contained in Section 22 of the aforesaid Act, wherein it is stated that "No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government." Perusal of the said provision clearly lays down that for an offence under Section 4 read with Section 21 of the Act, cognizance cannot be taken on the basis of police report rather a complaint is to be filed in writing made by a person authorised in this behalf by the Central Government or the State Government. Learned counsel for the applicants has next submitted that Section 22 of the Mines and Minerals (Development and Regulations) Act, 1957 as well as Rule 74 of the U.P. Minor Minerals (Concession) Rules, 1963 clearly provides that for an offence under 3/57/70 of the U.P. Minor Minerals (Concession) Rules and Section 4/21 of the Mines and Minerals (Development and Regulations) Act, 1957, cognizance of the offences cannot be taken on the basis of the police report rather a complaint is to be filed in writing made by a person authorised in this behalf by the Central Government or the State Government (in case of Mines and Minerals (Development and Regulations) Act, 1957) or by the District Officer or any officer authorised by him in this behalf (in case of U.P. Minor Minerals (Concession) Rules, 1963). Learned counsel for the applicants has thus submitted that the order taking cognizance of the offences dated 09.01.2023 based on the charge-sheet is bad in law and therefore, liable to be set aside. Per contra, learned AGA could not dispute the aforesaid facts. Having considered the rival submission made by the parties and taking into consideration the provision contained in Section 22 of the Mines and Minerals (Development and Regulations) Act, 1957, which provides that "No Court shall taken cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or State Government" and in view of the provision contained in Section 74 of the U.P. Minor Minerals (Consession) rules, 1963 which provides "No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government", order dated 09.01.2023 taking cognizance of the offence based on the charge-sheet dated 13.06.2017 and summoning the applicants under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 3/57/70 of the U.P. Minor Minerals (Concession) Rule, 1963 is liable to be set aside, however it is further open for the competent authority authorised in this behalf by the Central Government or the State Government to file a complaint in writing by an authorised person under the Mines and Minerals (Development and Regulations) Act, 1957 and further, if a complaint in writing of the facts constituting such offence by the District Officer or by any authorised officer in this behalf is filed under the U.P. Minor Minerals (Concession) Rules, 1963, the learned Magistrate may proceed in accordance with law under Section 4/21 of the Mines and Minerals (Development and Regulations) Act, 1957 and Sections 3/57/70 of the U.P. Minor Minerals (Concession) Rules, 1963. In view of the foregoing discussion, entire proceedings of Case No.160 of 2023 (State Vs. Mohd. Kamal @ Raju and others) arising out of Case Crime No. 0169 of 2017, under Sections 3/57/70 of U.P. Minor Minerals (Concession) Rule, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, Police Station Jahanganj, District Farrukhabad, based on the charge-sheet stands quashed. With the aforesaid observation, the present application u/s 482 Cr.P.C. is allowed subject to the fact that, in case, any complaint is filed by the authorised person under Section 3/57/70 of U.P. Minor Minerals (Concession) Rules, 1963 as well as under Section 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, the learned Magistrate may proceed in accordance with law. Order Date :- 24.4.2023/Subham Digitally signed by :- SUBHAM KUSHWAHA High Court of Judicature at Allahabad