Allahabad High Court
Suresh Pal And 3 Others vs State Of U.P. And Another on 24 July, 2023
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:147406 Court No. - 86 Case :- APPLICATION U/S 482 No. - 26281 of 2023 Applicant :- Suresh Pal And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manvendra Singh Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
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 dated 13.06.2017 and cognizance as well as summoning order dated 28.5.2018 as well as entire proceedings of Case No. 6376 of 2018 (State Vs. Suresh Pal and others) arising out of Case Crime No. 231 of 2017, under Sections 379, 411 IPC, Sections 3/57/7 of U.P. Minor Minerals (Concession) Rule, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, Police Station- Bindki, District Fatehpur, pending in the court of Civil Judge (Junior Division)/Judicial Magistrate/FTC, Fatehpur.
3. Brief facts giving rise to this application is that Gata No. 130-Kha is situate in Village- Dhanwa Kheda Manjre Madraon, Tehsil-Bindki, Fatehpur, which is in the name of Hiralal father of opposite party No. 2. It is alleged that on 6.5.2017 certain persons of village were illegally digging 80 Trolley soil from a field by JCB machine. In this regard, a first information report was lodged against the applicants, which was registered as vide case crime No. 231 of 2017, under Section 379 IPC, Sections 3/57 of U.P. Minor Minerals (Concession) Rule, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957.
4. 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, Section 3/57/7 of the U.P. Minor Minerals (Concession) Rules, 1963 and under Section 379/411 IPC vide order dated 28.5.2018.
5. Being aggrieved and dissatisfied by the said order dated 28.5.2018, the present application u/s 482 Cr.P.C. has been filed.
6. Learned counsel for the applicant has submitted that the impugned order dated 28.5.2018 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.
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 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."
9. 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.
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 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).
11. Learned counsel for the applicants has thus submitted that the order taking cognizance of the offences dated 28.5.2018 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, 411 IPC is clearly made out against the applicants and as such, proceedings under Sections 379, 411 IPC 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 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 28.5.2018 taking cognizance of the offence based on the charge-sheet dated 13.6.2017 and summoning the applicants under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 3/57/7 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 3/57/7 of the U.P. Minor Minerals (Concession) Rules, 1963. Sofar as the prosecution of the applicant under Sections 379, 411 IPC is concerned, prima facie offence under Sections 379, 411 IPC is clearly made out against the applicants, as such, proceedings under Sections 379, 411 IPC cannot be quashed.
14. In view of the foregoing discussion, proceedings of Case No. 6376 of 2018 (State Vs. Suresh Pal and others) arising out of Case Crime No. 231 of 2017, under Sections 3/57/7 of U.P. Minor Minerals (Concession) Rule, 1963 and Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957, Police Station- Bindki, District Fatehpur, pending in the court of Civil Judge (Junior Division)/Judicial Magistrate/FTC, Fatehpur, based on the charge-sheet stands quashed, however the proceedings against the applicants u/s 379/411 IPC are just, proper and legal and do not call for any interference and the said proceedings would continue against the applicants u/s 379, 411 IPC 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 3/57/7 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 in the said sections. Further the proceedings of the instant case u/s 379/411 IPC shall continue against the applicants and brought to logical conclusion in accordance with law.
Order Date :- 24.7.2023 KU