Ramcharan Singh Tomar v. State Of U.P. Thru. Prin. Secy. Deptt. Of Home Affairs Lko. And Another

2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the records.

3. Instant application u/s 482 has been filed with the prayer to quash the summoning order dated 15.10.2024 passed under sections 495, 420 and 506 I.P.C., in Case Crime No. 501 of 2023, Police Station Mehmoodabad District Sitapur, passed by the learned Judicial Magistrate-II, Sitapur and to quash the charge sheet dated 18.03.2024, along with entire criminal proceeding arising out of Case Crime no. 501 of 2023, Police Station Mehmoodabad, District Sitapur.

4. The challenge is laid to the cognizance and summoning order impugned herein on the ground that the offense charged against the applicant under section 495 of IPC cannot run as a police case, as is the mandate of section 198 of Cr.P.C.

5. The provision of section 198 of the Cr.P.C. is extracted as under:- [(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :Provided that - (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; 2 A482 No. 7963 of 2025 (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf; (c) where the person aggrieved by an offence punishable under [section 494 or 495] [Substituted by Act 45 of 1978, Section 17 for "Section 494" (w.e.f. 18-12-1978).] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or, [with the leave of the Court, by any other person related to her by blood, marriage or adoption.] [Inserted by Act 45 of 1978, Section 17 (w.e.f. 18-12-1978).] (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint, on his behalf. (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard. (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under[eighteen years of age] [Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 18, for "fifteen years of age".], if more than one year has elapsed from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.[198-A. Prosecution of offences under section 498-A of the Indian penal Code. [Inserted by Act 46 of 1983, Section 5(w.e.f. 25-12- 1983).]- No Court shall take cognizance of an offence punishable under section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which 3 A482 No. 7963 of 2025 constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.]""

6. Referring the aforesaid provisions, counsel for the applicant submits that the very start wordings of the provision says that 'no court shall take cognizance' of an offense punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved by the offense. He submitted that so far as section 495 of IPC is concerned, that is an offense mentioned under Chapter XX of the IPC. He submitted that the chargesheet was filed under sections 495, 420 and 506 of IPC, thereafter, the Magistrate has taken cognizance of the offenses under sections 420 and 506 alongwith section 495 of IPC. He submits that there is a clear-cut bar for taking cognizance by the trial court, so far as the offense finds place under Chapter XX of IPC.

7. In support of his contentions, he has placed reliance on the judgment rendered in the case of Pradeep Singh Versus State of U.P. and Another in Application u/s 482 no. 14699 of 2021 and has referred to paragraphs 5 and 10 of the abovesaid judgment, which are quoted hereinunder:- ""5. In support of his submission reliance has been placed on a decision of this Court dated 20.09.2021 rendered in Ram Bahal Vs. State of U.P. and Another. In particular, the following paragraphs of the judgment have been referred to:- "43. The legal position, as emanating from the aforesaid discussion, may be summarized as follows:-

43.1 The prohibition applying the rule against double jeopardy would be attracted in a situation where the same act constitutes an offence under more than one enactment. However, if the two offences are distinct and different with different ingredients, under two different enactments, the rule against double jeopardy would not be applicable. 43.7 The investigation of offences being within the domain of the police, the power of a police officer to investigate into a cognizable offence would ordinarily not be impinged by any fetter and courts would interfere only where it is found that the investigatory powers have been exercised in breach of the statutory provisions putting the personal liberty and/or the property of the citizen in jeopardy. The procedural law is designed to further the ends of justice and should not be allowed to be frustrated on mere technicalities and any defect or illegality in exercise of investigatory powers would have no direct bearing on the competence or the procedure relating to taking of cognizance or the trial.

44. It would therefore be seen that the bar under Section 22 of the Act shall not be attracted at the stage of lodging of an FIR or registration of the criminal case. The bar under the section shall get attracted only at the stage when the Magistrate takes cognizance of the offence and orders issuance of process/summons for the offence under the MMDR Act and the Rules made thereunder. On receipt of the police report, insofar as it relates to commission of offence under the Penal Code, the Magistrate having jurisdiction can take cognizance of the offence and proceed further. However, in respect of offences under the MMDR Act upon submission of the police report the same would be required to be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act whereupon the concerned authorised officer may file a complaint before the Magistrate along with the report submitted by the investigating officer and thereafter it would be open for the Magistrate to take 4 A482 No. 7963 of 2025 cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder and at that stage it can be said that cognizance has been taken by the Magistrate in respect of an offence under the MMDR Act.

45. In the case at hand, the offence under Section 4, 21 of the MMDR Act read with Rules 3, 57, 70 of the Concession Rules which relate to illegal mining, and the offence under Section 379, 411 IPC which would relate to theft, cannot be said to be one and the same. The two offences being distinct and under separate enactments with ingredients also being distinct the principle based on the rule against double jeopardy would not be attracted.

46. The offence under Section 379 IPC, which is with regard to theft of minerals, being undisputedly a cognizable offence, the act of the police in registering a case, investigating the same and placing a police report under Section 173 of the Code, cannot be said to be unlawful. The concerned Magistrate is also well within his jurisdiction in taking cognizance as per the provisions under the Code.

47. The contention sought to be raised on behalf of the applicant that the facts as disclosed in the FIR would constitute a mere violation of Section 4 of the MMDR Act which would be an offence cognizable only under Section 21 of the MMDR Act and not under any other law therefore stands rejected. The FIR version having disclosed an offence under Section 379 of the Penal Code and a police report having also been submitted pursuant thereto, there is no bar on the jurisdictional Magistrate from taking cognizance of the offence under the Penal Code. The contravention of the provisions under Section 4 of the MMDR Act also constituting a cognizable offence, the police were within their rights in investigating the same, there being no bar under the MMDR Act with regard to the same.

48. The initiation of the proceedings by lodging of an FIR under relevant provisions of the MMDR Act and the Rules made thereunder and also the provisions of the Penal Code therefore cannot be said to be hit by the bar under Section 22 of the MMDR Act. The investigation of the case and the submission of the police report under Section 173 also cannot be said to be barred by the provisions under the MMDR Act.

49. Insofar as the offences under the MMDR Act are concerned, at the stage of submission of the police report, it was for the concerned authorized officer as specified under Section 22 of the MMDR Act to have filed a complaint before the Magistrate along with the police report whereupon the Magistrate could have taken cognizance after following due procedure and issued process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder."

10. However, insofar as the offences under the MMDR Act are concerned, the procedure under Section 22 having not been followed and in the absence of a complaint by the authorized officer, the cognizance taken by the Magistrate cannot be legally sustained and the proceedings in this regard are set aside and quashed. It would be open to the authorized officer to initiate proceedings in this regard as per the procedure under Section 22 of the MMDR Act and to lodge a complaint before the concerned Magistrate along with report submitted by the investigating officer whereupon the Magistrate concerned may take cognizance after following due procedure and issue process/summons.""

8. Referring the aforesaid, he submits that in the aforesaid matter, alongwith other provisions of IPC, the offense under section 22 of the Mines and Mineral(Development and Regulation) Act, 1957 was imposed and the trial court had taken cognizance, but when this matter came up for consideration 5 A482 No. 7963 of 2025 before this Court, the issue was decided and it was held that if the provision itself comes with the specific bar, for not taking cognizance in a matter where a complaint can be filed by the person aggrieved, taking cognizance in such matters by the trial court, is impermissible.

9. He has also placed reliance on the case reported in 2024 (129) ACC 837 Arun Kumar Mourya Versus State of U.P. and Another and has referred paragraph nos. 5, 8 and 12 which are quoted hereinunder:- ""5. Attention has also been drawn towards the judgment and order dated 18.06.2021 passed by Karnataka High Court in Writ Petition No. 13328 of 2018(GM-RES), Sri Rajashekharananda Swamiji and Another Vs. The State of Karnataka, referring para nos. 7, 8, 9,10 and 11 which read as under: "7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence (1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or (ii) of any abetment of, or attempt to commit, such offence; or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy [(1981) 2 SCC 185], the Hon'ble Supreme Court held as follows: 6 A482 No. 7963 of 2025 "8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld." (Emphasis supplied)

11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed. The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No. 3660/2016 are hereby quashed." (Emphasis supplied)

8. Learned counsel for the petitioner has also drawn attention of this Court towards judgment of Apex Court rendered in the case of D.K. Rajendran and Ors. etc. etc. Vs. State of T.N., reported in AIR 2010 SC 3718, referring Para 25 which reads as under. "25. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction." (Emphasis supplied)

12. Upon due consideration of the aforesaid facts of the case and law referred above, this Court is of the view that the instant application for the reliefs sought is liable to be allowed. It is for the following reasons. (i) Indisputably, the complaint has not been filed in terms of Section 195 Cr.P.C. by the concerned officer, therefore, the trial court could have not taken cognizance of the chargesheet indicating the offence under Section 188 IPC. (ii) Particulars of the witnesses to be examined during trial have been mentioned in column no.13 of the Charge Sheet. According to this column, the prosecution would examine only one witness of the fact, namely, Umesh Kumar Pal and this witness in his statement, during investigation, has not indicated the names of the accused persons including the applicant. Other witnesses named in this column are formal witnesses. (iii) Other, above named persons, except the accused, namely, Sanjay Kashyap and accused Parvesh Srivastava, have also not indicated the names of the accused persons in their statements recorded by the I.O. (iv) The statement of accused Sanjay Kashyap and accused Parvesh Srivastava recorded by the I.O. are not admissible in evidence. (v) To support its case, the prosecution has not filed any other evidence along with the report viz. photographs, video clips, etc. including the evidence to establish the fact that the order under Section 144 Cr.P.C. was widely circulated, as is evident from a perusal of the charge sheet including Column No.10 7 A482 No. 7963 of 2025 (Details of Properties/Articles/Documents recovered/seized during investigation and relied upon), Column No.16 (brief facts of the case), Column No.19 (No. of enclosures) and column no.20 (List of enclosures). (vi) From the aforesaid, it is apparent that the case of the prosecution is a case of no evidence. (vii) In the facts of the case this Court finds that offences form part of same transaction of the offences indicated under Section 195 Cr.P.C. including Section 188 Cr.P.C. and it is not possible to split up and hold that the prosecution of the accused/applicant for the other offences should be upheld.""

10. Concluding his arguments, he submits that not only the provision is overt regarding the bar on taking cognizance, but time and again, it has been reiterated in several judgments, therefore, submission is that the order impugned taking the cognizance and issuing process is unlawful and erroneous.

11. On the other hand, learned A.G.A. appearing for the State has opposed the matter on merits on the facts, but he has failed to dispute the contentions of counsel for the applicant regarding the settled proposition of law.

12. Considering the submissions of counsel for the parties, it is apparent that vide the impugned order dated 15.10.2024, the Magistrate has taken the cognizance under sections 495, 420, and 506 of IPC and summons have been issued. The offense under section 495 is provided under chapter XX of the Indian Penal Code. This Court has noticed that, so far as the provision under section 198 of Cr.P.C. is concerned, that is very clear on its terms, that those offenses which comes under Chapter XX of the IPC, no court shall take cognizance and that shall run only on a complaint made by the person aggrieved.

13. When this Court examines the present case in light of the above said provisions, it transpires that cognizance is taken of offence u/s 495 of IPC, which is impermissible under the law as the same is in utter contraventions of the mandate of section 198 of Cr.P.C.

14. Further, the law which is rendered in the case of Subramanian Swamy Versus Union of India (2016) 7 SCC 221, the Supreme Court has very specifically held in paragraph 127 that where the word 'the person aggrieved' is connoted, the trial court can't take cognizance in such matters, unless the same is preferred by the person aggrieved.

15. Consequently, this Court finds merit in the application, thus, the impugned order dated 15.10.2024 is hereby set aside.

16. It is open for the prosecution and the trial court to proceed in accordance with the law. September 22, 2025 Mayank (Shree Prakash Singh,J.) MAYANK PRATAP SINGH MAYANK PRATAP SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the records.

3. Instant application u/s 482 has been filed with the prayer to quash the summoning order dated 15.10.2024 passed under sections 495, 420 and 506 I.P.C., in Case Crime No. 501 of 2023, Police Station Mehmoodabad District Sitapur, passed by the learned Judicial Magistrate-II, Sitapur and to quash the charge sheet dated 18.03.2024, along with entire criminal proceeding arising out of Case Crime no. 501 of 2023, Police Station Mehmoodabad, District Sitapur.

4. The challenge is laid to the cognizance and summoning order impugned herein on the ground that the offense charged against the applicant under section 495 of IPC cannot run as a police case, as is the mandate of section 198 of Cr.P.C.

5. The provision of section 198 of the Cr.P.C. is extracted as under:- [(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :Provided that - (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; 2 A482 No. 7963 of 2025 (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf; (c) where the person aggrieved by an offence punishable under [section 494 or 495] [Substituted by Act 45 of 1978, Section 17 for "Section 494" (w.e.f. 18-12-1978).] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or, [with the leave of the Court, by any other person related to her by blood, marriage or adoption.] [Inserted by Act 45 of 1978, Section 17 (w.e.f. 18-12-1978).] (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint, on his behalf. (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard. (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under[eighteen years of age] [Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 18, for "fifteen years of age".], if more than one year has elapsed from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.[198-A. Prosecution of offences under section 498-A of the Indian penal Code. [Inserted by Act 46 of 1983, Section 5(w.e.f. 25-12- 1983).]- No Court shall take cognizance of an offence punishable under section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which 3 A482 No. 7963 of 2025 constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.]""

6. Referring the aforesaid provisions, counsel for the applicant submits that the very start wordings of the provision says that 'no court shall take cognizance' of an offense punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved by the offense. He submitted that so far as section 495 of IPC is concerned, that is an offense mentioned under Chapter XX of the IPC. He submitted that the chargesheet was filed under sections 495, 420 and 506 of IPC, thereafter, the Magistrate has taken cognizance of the offenses under sections 420 and 506 alongwith section 495 of IPC. He submits that there is a clear-cut bar for taking cognizance by the trial court, so far as the offense finds place under Chapter XX of IPC.

7. In support of his contentions, he has placed reliance on the judgment rendered in the case of Pradeep Singh Versus State of U.P. and Another in Application u/s 482 no. 14699 of 2021 and has referred to paragraphs 5 and 10 of the abovesaid judgment, which are quoted hereinunder:- ""5. In support of his submission reliance has been placed on a decision of this Court dated 20.09.2021 rendered in Ram Bahal Vs. State of U.P. and Another. In particular, the following paragraphs of the judgment have been referred to:- "43. The legal position, as emanating from the aforesaid discussion, may be summarized as follows:-

43.1 The prohibition applying the rule against double jeopardy would be attracted in a situation where the same act constitutes an offence under more than one enactment. However, if the two offences are distinct and different with different ingredients, under two different enactments, the rule against double jeopardy would not be applicable. 43.7 The investigation of offences being within the domain of the police, the power of a police officer to investigate into a cognizable offence would ordinarily not be impinged by any fetter and courts would interfere only where it is found that the investigatory powers have been exercised in breach of the statutory provisions putting the personal liberty and/or the property of the citizen in jeopardy. The procedural law is designed to further the ends of justice and should not be allowed to be frustrated on mere technicalities and any defect or illegality in exercise of investigatory powers would have no direct bearing on the competence or the procedure relating to taking of cognizance or the trial.

44. It would therefore be seen that the bar under Section 22 of the Act shall not be attracted at the stage of lodging of an FIR or registration of the criminal case. The bar under the section shall get attracted only at the stage when the Magistrate takes cognizance of the offence and orders issuance of process/summons for the offence under the MMDR Act and the Rules made thereunder. On receipt of the police report, insofar as it relates to commission of offence under the Penal Code, the Magistrate having jurisdiction can take cognizance of the offence and proceed further. However, in respect of offences under the MMDR Act upon submission of the police report the same would be required to be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act whereupon the concerned authorised officer may file a complaint before the Magistrate along with the report submitted by the investigating officer and thereafter it would be open for the Magistrate to take 4 A482 No. 7963 of 2025 cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder and at that stage it can be said that cognizance has been taken by the Magistrate in respect of an offence under the MMDR Act.

45. In the case at hand, the offence under Section 4, 21 of the MMDR Act read with Rules 3, 57, 70 of the Concession Rules which relate to illegal mining, and the offence under Section 379, 411 IPC which would relate to theft, cannot be said to be one and the same. The two offences being distinct and under separate enactments with ingredients also being distinct the principle based on the rule against double jeopardy would not be attracted.

46. The offence under Section 379 IPC, which is with regard to theft of minerals, being undisputedly a cognizable offence, the act of the police in registering a case, investigating the same and placing a police report under Section 173 of the Code, cannot be said to be unlawful. The concerned Magistrate is also well within his jurisdiction in taking cognizance as per the provisions under the Code.

47. The contention sought to be raised on behalf of the applicant that the facts as disclosed in the FIR would constitute a mere violation of Section 4 of the MMDR Act which would be an offence cognizable only under Section 21 of the MMDR Act and not under any other law therefore stands rejected. The FIR version having disclosed an offence under Section 379 of the Penal Code and a police report having also been submitted pursuant thereto, there is no bar on the jurisdictional Magistrate from taking cognizance of the offence under the Penal Code. The contravention of the provisions under Section 4 of the MMDR Act also constituting a cognizable offence, the police were within their rights in investigating the same, there being no bar under the MMDR Act with regard to the same.

48. The initiation of the proceedings by lodging of an FIR under relevant provisions of the MMDR Act and the Rules made thereunder and also the provisions of the Penal Code therefore cannot be said to be hit by the bar under Section 22 of the MMDR Act. The investigation of the case and the submission of the police report under Section 173 also cannot be said to be barred by the provisions under the MMDR Act.

49. Insofar as the offences under the MMDR Act are concerned, at the stage of submission of the police report, it was for the concerned authorized officer as specified under Section 22 of the MMDR Act to have filed a complaint before the Magistrate along with the police report whereupon the Magistrate could have taken cognizance after following due procedure and issued process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder."

10. However, insofar as the offences under the MMDR Act are concerned, the procedure under Section 22 having not been followed and in the absence of a complaint by the authorized officer, the cognizance taken by the Magistrate cannot be legally sustained and the proceedings in this regard are set aside and quashed. It would be open to the authorized officer to initiate proceedings in this regard as per the procedure under Section 22 of the MMDR Act and to lodge a complaint before the concerned Magistrate along with report submitted by the investigating officer whereupon the Magistrate concerned may take cognizance after following due procedure and issue process/summons.""

8. Referring the aforesaid, he submits that in the aforesaid matter, alongwith other provisions of IPC, the offense under section 22 of the Mines and Mineral(Development and Regulation) Act, 1957 was imposed and the trial court had taken cognizance, but when this matter came up for consideration 5 A482 No. 7963 of 2025 before this Court, the issue was decided and it was held that if the provision itself comes with the specific bar, for not taking cognizance in a matter where a complaint can be filed by the person aggrieved, taking cognizance in such matters by the trial court, is impermissible.

9. He has also placed reliance on the case reported in 2024 (129) ACC 837 Arun Kumar Mourya Versus State of U.P. and Another and has referred paragraph nos. 5, 8 and 12 which are quoted hereinunder:- ""5. Attention has also been drawn towards the judgment and order dated 18.06.2021 passed by Karnataka High Court in Writ Petition No. 13328 of 2018(GM-RES), Sri Rajashekharananda Swamiji and Another Vs. The State of Karnataka, referring para nos. 7, 8, 9,10 and 11 which read as under: "7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence (1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or (ii) of any abetment of, or attempt to commit, such offence; or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy [(1981) 2 SCC 185], the Hon'ble Supreme Court held as follows: 6 A482 No. 7963 of 2025 "8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld." (Emphasis supplied)

11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed. The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No. 3660/2016 are hereby quashed." (Emphasis supplied)

8. Learned counsel for the petitioner has also drawn attention of this Court towards judgment of Apex Court rendered in the case of D.K. Rajendran and Ors. etc. etc. Vs. State of T.N., reported in AIR 2010 SC 3718, referring Para 25 which reads as under. "25. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction." (Emphasis supplied)

12. Upon due consideration of the aforesaid facts of the case and law referred above, this Court is of the view that the instant application for the reliefs sought is liable to be allowed. It is for the following reasons. (i) Indisputably, the complaint has not been filed in terms of Section 195 Cr.P.C. by the concerned officer, therefore, the trial court could have not taken cognizance of the chargesheet indicating the offence under Section 188 IPC. (ii) Particulars of the witnesses to be examined during trial have been mentioned in column no.13 of the Charge Sheet. According to this column, the prosecution would examine only one witness of the fact, namely, Umesh Kumar Pal and this witness in his statement, during investigation, has not indicated the names of the accused persons including the applicant. Other witnesses named in this column are formal witnesses. (iii) Other, above named persons, except the accused, namely, Sanjay Kashyap and accused Parvesh Srivastava, have also not indicated the names of the accused persons in their statements recorded by the I.O. (iv) The statement of accused Sanjay Kashyap and accused Parvesh Srivastava recorded by the I.O. are not admissible in evidence. (v) To support its case, the prosecution has not filed any other evidence along with the report viz. photographs, video clips, etc. including the evidence to establish the fact that the order under Section 144 Cr.P.C. was widely circulated, as is evident from a perusal of the charge sheet including Column No.10 7 A482 No. 7963 of 2025 (Details of Properties/Articles/Documents recovered/seized during investigation and relied upon), Column No.16 (brief facts of the case), Column No.19 (No. of enclosures) and column no.20 (List of enclosures). (vi) From the aforesaid, it is apparent that the case of the prosecution is a case of no evidence. (vii) In the facts of the case this Court finds that offences form part of same transaction of the offences indicated under Section 195 Cr.P.C. including Section 188 Cr.P.C. and it is not possible to split up and hold that the prosecution of the accused/applicant for the other offences should be upheld.""

10. Concluding his arguments, he submits that not only the provision is overt regarding the bar on taking cognizance, but time and again, it has been reiterated in several judgments, therefore, submission is that the order impugned taking the cognizance and issuing process is unlawful and erroneous.

11. On the other hand, learned A.G.A. appearing for the State has opposed the matter on merits on the facts, but he has failed to dispute the contentions of counsel for the applicant regarding the settled proposition of law.

12. Considering the submissions of counsel for the parties, it is apparent that vide the impugned order dated 15.10.2024, the Magistrate has taken the cognizance under sections 495, 420, and 506 of IPC and summons have been issued. The offense under section 495 is provided under chapter XX of the Indian Penal Code. This Court has noticed that, so far as the provision under section 198 of Cr.P.C. is concerned, that is very clear on its terms, that those offenses which comes under Chapter XX of the IPC, no court shall take cognizance and that shall run only on a complaint made by the person aggrieved.

13. When this Court examines the present case in light of the above said provisions, it transpires that cognizance is taken of offence u/s 495 of IPC, which is impermissible under the law as the same is in utter contraventions of the mandate of section 198 of Cr.P.C.

14. Further, the law which is rendered in the case of Subramanian Swamy Versus Union of India (2016) 7 SCC 221, the Supreme Court has very specifically held in paragraph 127 that where the word 'the person aggrieved' is connoted, the trial court can't take cognizance in such matters, unless the same is preferred by the person aggrieved.

15. Consequently, this Court finds merit in the application, thus, the impugned order dated 15.10.2024 is hereby set aside.

16. It is open for the prosecution and the trial court to proceed in accordance with the law. September 22, 2025 Mayank (Shree Prakash Singh,J.) MAYANK PRATAP SINGH MAYANK PRATAP SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench