High Court · 2025

3. It has been submitted by learned counsel for applicant that without exercising his mind nor even considering the facts of the case, in a most cursory manner in two lines, summons have been issued. It is stated that the law in this regard has been clarified on numerous occasions by the High Court as well as the Supreme Court where the order should disclose due application of mind before summoning the accused. Hon'ble the Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 wherein Hon'ble Supreme Court has held as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

4. In the case of Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609 Hon'ble Supreme Court has held as under: "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

5. Prima facie, perusal of the impugned order shows that the same has been passed without application of mind and merely on a printed format, the notice has been issued, which is illegal and arbitrary and such order cannot be sustained.

6. The second ground urged by the applicant is that he has done digging only to the depth of 1.5 meters and such digging is not an offence as per Rule 3 of the U.P. Minor & Minerals (Concession) Rules, 2021. It has been submitted that for 1.5 meters of digging, no permission is required and even if the applicant has excavated soil on the land owned by him would not constitute any offence under the said Act.

7. On the other hand, learned A.G.A. for the State has opposed the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 and submits that the digging to be protected under Rule 3 of Rules, 2021 should be for the purposes of making bricks and pottery while from the material on record, it cannot be demonstrated that digging by the applicant was for the purpose of making bricks and pottery and consequently the benefit of proviso Section 3 of the said Act would not be available to him. To determine the aforesaid fact, Rule 3 of the U.P. Miner & Minerals (Concession) Rules, 2021 is quoted below:- "3. (1) No person shall undertake any mining operations in any area within the Sate of any minor mineral to which theses rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules: Provided that nothing shall affect any operations undertaken in accordance with terms and conditions of mining lease or permit duly granted before the commencement of these rules. Explanation:- For the purposes of this rule manual digging in manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations: Provided that pit created by such digging or extraction should not be deeper than two meters. (2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules."

8. From perusal of Rule 3 undoubtedly the explanation to the proviso provides for the purpose of the Rule manual digging in manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations and further provided that the pit created by such digging or extraction should not be deeper than two meters. Accordingly, it is very clear that it is only when the digging is done for extraction of earth/soil for making bricks or pottery, it shall not be deemed to be a minor operations.

9. In the present case, this Court also perused the report of the Revenue Inspector and Lekhpal, from which, it is clear that the soil was extracted and sold and the same on the face of it does not seem to be for the purpose of making bricks or pottery and consequently prima facie is not protected under Section 3 of the Rules, 2021. Accordingly, the argument of the revisionist in this regard is rejected. Further considering the first ground raised by the revisionist with regard to the non-application of mind, this Court deem it proper to set aside the impugned order dated

11.03.2025 passed by learned Chief Judicial Magistrate, Gonda under Section 4/21 of the Mines & Minerals Act in Case NO. 10811 of 2005, Police Station Wazirganj, District Gonda and remit the matter to the learned Chief Judicial Magistrate for passing a fresh order in accordance with law.

10. Let the said exercise be done expeditiously in accordance with law.

11. Accordingly, subject to the observations/directions, this application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, is allowed. . Order Date :- 21.4.2025 Virendra (Alok Mathur,J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

3. It has been submitted by learned counsel for applicant that without exercising his mind nor even considering the facts of the case, in a most cursory manner in two lines, summons have been issued. It is stated that the law in this regard has been clarified on numerous occasions by the High Court as well as the Supreme Court where the order should disclose due application of mind before summoning the accused. Hon'ble the Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 wherein Hon'ble Supreme Court has held as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

4. In the case of Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609 Hon'ble Supreme Court has held as under: "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

5. Prima facie, perusal of the impugned order shows that the same has been passed without application of mind and merely on a printed format, the notice has been issued, which is illegal and arbitrary and such order cannot be sustained.

6. The second ground urged by the applicant is that he has done digging only to the depth of 1.5 meters and such digging is not an offence as per Rule 3 of the U.P. Minor & Minerals (Concession) Rules, 2021. It has been submitted that for 1.5 meters of digging, no permission is required and even if the applicant has excavated soil on the land owned by him would not constitute any offence under the said Act.

7. On the other hand, learned A.G.A. for the State has opposed the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 and submits that the digging to be protected under Rule 3 of Rules, 2021 should be for the purposes of making bricks and pottery while from the material on record, it cannot be demonstrated that digging by the applicant was for the purpose of making bricks and pottery and consequently the benefit of proviso Section 3 of the said Act would not be available to him. To determine the aforesaid fact, Rule 3 of the U.P. Miner & Minerals (Concession) Rules, 2021 is quoted below:- "3. (1) No person shall undertake any mining operations in any area within the Sate of any minor mineral to which theses rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules: Provided that nothing shall affect any operations undertaken in accordance with terms and conditions of mining lease or permit duly granted before the commencement of these rules. Explanation:- For the purposes of this rule manual digging in manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations: Provided that pit created by such digging or extraction should not be deeper than two meters. (2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules."

8. From perusal of Rule 3 undoubtedly the explanation to the proviso provides for the purpose of the Rule manual digging in manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations and further provided that the pit created by such digging or extraction should not be deeper than two meters. Accordingly, it is very clear that it is only when the digging is done for extraction of earth/soil for making bricks or pottery, it shall not be deemed to be a minor operations.

9. In the present case, this Court also perused the report of the Revenue Inspector and Lekhpal, from which, it is clear that the soil was extracted and sold and the same on the face of it does not seem to be for the purpose of making bricks or pottery and consequently prima facie is not protected under Section 3 of the Rules, 2021. Accordingly, the argument of the revisionist in this regard is rejected. Further considering the first ground raised by the revisionist with regard to the non-application of mind, this Court deem it proper to set aside the impugned order dated

11.03.2025 passed by learned Chief Judicial Magistrate, Gonda under Section 4/21 of the Mines & Minerals Act in Case NO. 10811 of 2005, Police Station Wazirganj, District Gonda and remit the matter to the learned Chief Judicial Magistrate for passing a fresh order in accordance with law.

10. Let the said exercise be done expeditiously in accordance with law.

11. Accordingly, subject to the observations/directions, this application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, is allowed. . Order Date :- 21.4.2025 Virendra (Alok Mathur,J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench