High Court
Case Details
Neutral Citation No. - 2023:AHC:164021 Court No. - 86 Case :- APPLICATION U/S 482 No. - 29691 of 2023 Applicant :- Chhottan Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajendra Singh Chauhan Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Legal Reasoning
1. Heard learned counsel for the applicants, learned AGA for the State and perused the record. 2. This application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash charge-sheet no. 56 of 2021 dated 16.6.2021 and cognizance order dated 23.07.2021 as well as entire proceedings of Case No. 1293/IX/2021 (State Vs. Chhottan Singh and others), arising out of Case Crime No. 9 of 2021, under Sections 4 & 21 of Mines and Minerals (Development and Regulation) Act, 1957, Rule 70 of Minor Mineral (Concession) Rules, 1963 and Section 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1963, Police Station Naraini, District Banda pending in the court of Addl. Chief Judicial Magistrate (Court No.1), Banda. 3. Brief facts giving rise to this application is that on the letter dated 13.01.2021 of Sub-Divisional Magistrate, Banda and letter dated 18.01.2021 of Additional District Magistrate, Banda, a regional joint investigation team while on Inspection duty, reached village Vilharka Naraini, District Banda and found sand stored on the applicants' field, which was illegally mined. In this regard, a first information report was lodged against the applicants, which was registered vide Case Crime No. 9 of 2021, under Section 379 and 411 IPC, Sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957, Section 7 of Minor Mineral (Concession) Rules, 1963 and Section 3 Prevention of Damage to Public Property Act, 1984, Police Station Naraini, District Banda. 4. After registration of the FIR, the Police thoroughly investigated the matter and after recording statement of the witnesses u/s 161 Cr.P.C. submitted charge-sheet against the applicants. On the basis of which, the learned Magistrate has taken cognizance under Section under Sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957, Rule 70 of Minor Mineral (Concession) Rules, 1963 and Section 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 vide order dated 23.07.2021. 5. Being aggrieved and dissatisfied by the said order dated 23.07.2021, the present application u/s 482 Cr.P.C. has been filed. 6. Learned counsel for the applicants has submitted that the impugned order dated 23.07.2021 taking cognizance of the offence and summoning the applicants to face trial on the basis of charge-sheet is wholly illegal, without jurisdiction and liable to be set aside. 7. 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. 8. Learned counsel for the applicants has next 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." 9. Perusal of the said provision clearly lays down that for an offence under Section 4 read with Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957, 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. 10. 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 Section 4/21 of the Mines and Minerals (Development and Regulations) Act, 1957 and Rule 70 of the U.P. Minor Minerals (Concession) Rules, 1963, 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 the U.P. Minor Minerals (Concession) Rules, 1963. 11. Learned counsel for the applicants has thus submitted that the order taking cognizance of the offences dated 23.07.2021 based on the charge-sheet is bad in law and therefore, liable to be set aside. 12. Per contra, learned AGA could not dispute the aforesaid facts, but has stated that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence under Sections 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 is clearly made out against the applicants and as such, proceedings under Sections 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 cannot be quashed. 13. 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 Rule 74 of the U.P. Minor Minerals (Concession) 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 23.07.2021 taking cognizance of the offence based on the charge-sheet dated 16.06.2021 and summoning the applicants under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 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, the learned Magistrate may proceed in accordance with law under Section 4/21 of 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 Rule 70 U.P. Minor Minerals (Concession) Rules, 1963. Sofar as the prosecution of the applicants under Section 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 is concerned, prima facie offence under 379 and 411 IPC and Section 3 of Protection of Damage to Public Property Act, 1984 is clearly made out against the applicants, as such, proceedings under Section under Section 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 cannot be quashed. 14. In view of the foregoing discussion, proceedings of Case No. 1293/IX/2021 (State Vs. Chhottan Singh and others), arising out of Case Crime No. 9 of 2021, under Sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, Rule 70 of Minor Minerals (Concession) Rules, 1963, Police Station Naraini, District Banda pending in the court of Addl. Chief Judicial Magistrate (Court No.1), Banda, based on the charge-sheet stands quashed, however the proceedings against the applicants u/s 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 are just, proper and legal and do not call for any interference and the said proceedings would continue against the applicants under Section 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 in accordance with law. 15. With the aforesaid observation, the present application u/s 482 Cr.P.C. is partly allowed subject to the fact that, in case, any complaint is filed by the authorised person under Section 4/21 of Mines and Minerals (Development and Regulations) Act, 1957 as well as Rule 70 of the U.P. Minor Minerals (Concession) Rules, 1963, the learned Magistrate may proceed in accordance with law in the said Sections. Further the proceedings of the instant case u/s 379 and 411 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984 shall continue against the applicants and brought to logical conclusion in accordance with law. Order Date :- 16.8.2023 Subham Digitally signed by :- SUBHAM KUSHWAHA High Court of Judicature at Allahabad