Allahabad High Court
Mahesh Yadav vs State Of U.P. And Another on 19 August, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 7214 of 2021 Applicant :- Mahesh Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satya Prakash Chaturvedi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. S.P. Chaturvedi, learned counsel for applicant and learned A.G.A. for State.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed challenging charge-sheet dated 24.4.2018 submitted in Case Crime No. 25 of 2018 under Section 379, 411 I.P.C, and Sections 4/21 of The Mines and Minerals (Regulation and Development) Act 1957, P.S. Dakor, District-Jalaun Cognizance Taking Order/Summoning Order dated 24.12.2018 passed by Chief Judicial Magistrate, Jalaun in consequential Case No. 5430 of 2018 (State Vs. Mahesh Yadav) arising out of above mentioned case crime number, as well as entire proceedings of above mentioned Case, now pending in the court of Judicial Magistrate, Jalaun at Orai.
4. Record shows that first informant/opposite party-2, Sudhakar Mishra, Station House Officer, Police Station-Dakor, District Jalaun lodged an F.I.R. dated 25.2.2018 which was registered as Case Crime No. 25 of 2018 under Section 379, 411 I.P.C, and Sections 4/21 of The Mines and Minerals (Regulation and Development) Act 1957, P.S. Dakor, District-Jalaun. In the aforesaid F.I.R, four unknown persons have been nominated as accused.
5. In brief, as per prosecution story as unfolded in F.I.R. dated 25.2.2018 it is alleged that upon receipt of information from informant that one Mahesh Yadav is doing illegal mining on the banks of Bekwa river at Kharkaghat with help some labourers and by using his tractor. It is further alleged that aforesaid accused undertakes illegal mining of miner minral namely, Morang. On the aforesaid tip of Police party headed by first informant/opposite party-2 along with police force reached on the spot. Upon seeing Police, persons present at aforesaid place fled away but a tractor bearing No. 2 65 DI of red colour and Mahindra make along with a loaded trolly was recovered from spot.
6. After registration of above noted F.I.R. dated 25.2.2018, Investigating Officer proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer accordingly recorded statements of first informant and other witnesses in terms of Section 161 Cr.P.C. On the basis of above as well as other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicant. Complicity of present applicant in crime in question found established. In the light of above, Investigating Officer formed an opinion that a charge-sheet should be submitted against named accused. Accordingly, Investigating Officer submitted charge-sheet dated 24.4.2018 whereby and whereunder applicant, who is not a named accused has been charge sheeted under Sections 379, 411 I.P.C, and Sections 4/21 of The Mines and Minerals (Regulation and Development) Act 1957.
7. After submission of aforesaid charge-sheet, Chief Judicial Magistrate, Jalaun passed Cognizance Taking Order/Summoning Order dated 24.12.2018 in consequential Case No. 5430 of 2018 (State Vs. Mahesh Yadav) under section 379, 411 I.P.C, and Sections 4/21 of The Mines and Minerals (Regulation and Development) Act 1957, P.S. Dakor, District-Jalaun.
8. Feeling aggrieved by above, applicant, who is a charge-sheeted accused has now approached this Court by means of present application under Section 482 Cr.P.C.
9. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Applicant is not named in F.I.R. It is then contended that allegations made in F.I.R. are false and concocted. Investigation is defective. Investigating Officer has not conducted free and fair investigation. Investigating Officer has acted as agent of prosecution. As such, charge sheet is tainted.It is lastly contended that by virtue of provisions contained in Section 22 of The Mines and Minerals (Regulation and Development) Act 1957 court below is denuded of its power to take cognizance in respect of an offence punishable under The Mines and Minerals (Regulation and Development) Act 1957 as well as U.P. Minor Mineral (Concession) Rules 1963. Consequently Cognizance Taking Order /Summoning Order dated 14.01.2020 passed by 1st Additional Chief Judicail Magistrate, Rampur is manifestly illegal and without jurisdiction and therefore, same is liable to be quashed by this Court.
10. Per Contra, learned A.G.A has opposed present application. He contends that complicity of applicant in the crime as alleged in F.I.R. was found to be prima facie established during investigation of concerned case crime number. This is on the ground that witnesses examined by Investigating Officer under Section 161 Cr.P.C. have supported the prosecution story as unfolded in F.I.R. Apart from above, other material collected by Investigating Officer during course of investigation is also adverse to applicant. Consequently, charge-sheet has been submitted against applicant. In the charge-sheet so submitted as many as six prosecution witnesses have been nominated. On the aforesaid premise, it is thus urged by learned A.G.A. that at this stage, it cannot be said that prosecution of applicant is false or there is no material to support prosecution of applicant. Submission urged by learned counsel for applicant in support of present application relates to disputed defence of applicant, which can be adjudicated upon only by court below during course of trial. Learned A.G.A. further contends that whether on the basis of material on record, offence under Section 379 I.P.C. is made out or not against applicant can be agitated by applicant before court below at the time of framing of charge. Reliance placed upon Section 22 of The Mines and Minerals (Regulation and Development) Act, 1957 is immaterial as an objection with regard to jurisdiction of court below to take cognizance and proceed with the matter can be raised before court below itself as any court before embarking upon an exercise of adjudicating any case has to first itself satisfy regarding valuation, limitation and jurisdiction. Consequently, present application is liable to be dismissed.
11. Before proceeding to consider the rival submissions, it is necessary to reproduce Section 22 of The Mines and Minerals (Regulation and Development) Act 1957 as learned counsel for applicant has heavily relied upon same. Same reads as under:
"22. Cognizance of offences- 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."
12. Admittedly, The Mines and Minerals (Regulation and Development) Act 1957 is a special Act. Section 22 of aforesaid Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no court shall take cognizance except upon complaint made in writing by a person authorised in this behalf by Central Government or State Government.
13. It is thus evident that Section 22 of The Mines and Minerals (Regulation and Development) Act 1957 carves out an exception with regard to the procedure regarding prosecution of an accused who has committed an offence punishable under The Mines and Minerals (Regulation and Development) Act 1957 or the Rules framed thereunder.
14. Nature and Scope of Section 22 of Act, 1952 and its impact upon criminal proceedings launched by means of an F.I.R. for alleged offences under The Mines and Minerals (Regulation and Department) Act, 1957 and the rules framed thereunder, as well as consequential proceedings before court, after cognizance is taken by court concerned upon charge-sheet, whereby an accused has been charge-sheeted for an offence punishable under Indian Penal Code as well as The Mines and Minerals (Regulation and Development) Act, 1957 and the Rules framed thereunder came up for consideration before Apex Court for the first time in State (NCT of DELHI) Vs. Sanjay (2014) 9 SCC 772, wherein court after evaluating entire gamut of case-law relating to the issue involved therein as well as relevant provisions of Cr.P.C. and The Mines and Minerals (Regulation and Development) Act, 1957 held as follows in paragraphs 69, 70, 71, 72 and 73:-
"69. Considering the principles of interpretation and the wordings used inSection 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
70. There cannot be any dispute with regard to restrictions imposed under theMMDR Actand remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions ofSection 4and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation ofSection 4and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained inSection 22of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention ofSection 4of the Act and not for any act or omission which constitute an offence underIndian Penal Code.
71. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those mineralsin a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is laible to be punished for committing such offence underSections 378and379of the Indian Penal Code.
72. From a close reading of the provisions ofMMDR Actand the offence defined underSection 378,IPC, it is manifest thatthe ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation ofSection 4of the Act is an offence punishable underSection 21of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under theMMDR Acton the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power underthe Codeof Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report underSection 173,Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided inSection 190(1)(d)of the Codeof Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis--visthe Codeof Criminal Procedure andthe Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under theMMDR Actand the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under theIPC. Hence, for the commission of offence underSection 378Cr.P.C., on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly."
15. Thereafter Apex Court in Kanwar Pal Singh Vs. State of U.P. and another (2020) 14 SCC 331, again considered the issue as noted above with reference to the judgement in State (NCT OF DELHI) (Supra) and held as follows in paragraphs, 15 and 16:-
" 15. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court inSeema Sarkar v. State17wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act andSection 379of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered underSection 379of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring toSection 26of the General Clauses Act and the meaning of the expression ''same offence', to observe that the offence underSection 21read with Section 4 of the Mines Regulation Act andSection 379of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR(1995) 1 Cal LT 95 is a mere violation ofSection 4which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence underSection 379of the IPC. We would also observe that the violation ofSection 4being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act.
16. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate underSection 379of the IPC andSections 3and4of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance underSection 21read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have upheld the prosecution and cognizance of the offence underSection 379of the IPC andSections 3and4of the Prevention of Damage to Public Property Act. There would be no order as to costs."
16. Thereafter controversy with regard to effect of Section 22 of The Mines and Minerals (Regulation and Development) Act, 1957 on a State case which comes into existence upon a police report again came up for consideration by Apex Court in Jayant and others Vs. State of Madhya Pradesh (2021) 2 SCC 670, wherein court held as follows in paragraphs 21, 21.1, 21.2, 21.3, 21.4, 21.5 and 22:-
"21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of theMMDR Actand the Rules made thereunder visvisthe Codeof Criminal Procedure andthe Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
21.1. That the learned Magistrate can in exercise of powers underSection 156(3)of the Code order/direct the concerned In charge/SHO of the police station to lodge/register crime case/FIR even for the offences under theMMDR Actand the Rules made thereunder and at this stage the bar underSection 22of the MMDR Act shall not be attracted;
21.2. The bar underSection 22of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under theMMDR Actand Rules made thereunder and orders issuance of process/summons for the offences under theMMDR Actand Rules made thereunder;
21.3. For commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder.
21.4.That in respect of violation of various provisions of theMMDR Actand the Rules made thereunder, when a Magistrate passes an order underSection 156(3)of the Code and directs the concerned Incharge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned inSection 22of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of theMMDR Actand Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.
21.5. In a case where the violator is permitted to compound the offences on payment of penalty as per subsection1 ofSection 23A, considering subsection 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Actor any rule made thereunder so compounded.
22. However, the bar under subsection 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."
17. A learned Single Judge of this Court in Imran and others Vs. State of U.P. and another 2019 SCC online All. 4542, after taking into consideration the case-law on the issue as noted above and also relevant provisions of relevant Act and Cr. P.C. concluded as follows in paragraphs 42, 43 and 44:-
"42. In view of above, this Court is of the view that so far the cognizance taken by the Judicial Magistrate concerned on the impugned charge-sheet dated 14.04.2018 for the offences underthe Indian Penal Codeis concerned, it cannot be said to be illegal and without authority, but so far as the cognizance taken for the offence under the Mines and Minerals (Development andRegulation) Acton the impugned charge-sheet dated 14.04.2018 is concerned, the same is not liable to be sustained in the eyes of law on account of categorical bar contained inSection 22of the the Mines and Minerals (Development andRegulation) Act1957.
43. Accordingly further proceeding of criminal case no. 1520 of 2018 pursuant to impugned charge-sheet dated 14.04.2018 arising out of case no. 461of 2017 so far as offence undersection 4/21of the Mines and Minerals (Development andRegulation) Act1957 only is hereby quashed with liberty to the prosecution /officer concerned to file complaint against the applicants under the Mines and Minerals (Development andRegulation) Act1957.
44. It is made clear that so far as order taking cognizance underSections 147, 148, 149, 336, 353, 307, and379underIndian Penal Codeare concerned, that has not been interfered by this Court and the concerned court below is at liberty to proceed in accordance with law against the applicants pursuant to charge-sheet dated 14.04.2018. "
18. Thus on a conjoint reading of law laid down by Courts as noted herein above, it is evident that concerned court cannot take cognizance of an offence punishable under Act of 1957 and the Rules framed thereunder except on a complaint made by an authorised officer in that behalf to the court concerned.
19. What would be the situation in a case, whereupon submission of a charge sheet against an accused, whereby and whereunder, he has been charge-sheeted for an offence punishable under I.P.C. as well as The Mines and Minerals (Regulation and Development) Act, 1957 and the Rules framed thereunder and court concerned has taken cognizance and proceeded with the matter as a State case is no longer res-integra and stands settled by following observations made in paragraph 21.4 in (Jayant Vs. State of M.P.) (supra) :-
"21.4.That in respect of violation of various provisions of theMMDR Actand the Rules made thereunder, when a Magistrate passes an order underSection 156(3)of the Code and directs the concerned Incharge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned inSection 22of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of theMMDR Actand Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate."
20. It is thus clear that concerned Magistrate had no jurisdiction to take cognizance for an offence punishable under The Mines and Minerals (Regulation and Development) Act, 1957 and the Rules framed thereunder on the basis of a charge-sheet submitted by police.
21. Coming to the second issue as to whether in the facts and circumstances of the case, charge-sheet submitted against applicant under Section 379 I.P.C is unsustainable or not. It may be noted that subsequent to F.I.R. dated 25.2.2018. Investigating Officer proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. On the basis of material collected during course of investigation, which is substantially adverse to applicant, Investigating Officer submitted charge-sheet dated 24.4.2018. In the charge-sheet so submitted as many as seven prosecution witnesses have been nominated. As such, it cannot be said at this stage that prosecution of applicant is false or there is no material to support the prosecution of applicant. It is apposite to mention her that charge sheet is the outcome of investigation. No factual foundation has been laid in the entire affidavit filed in support of present application under Section 482 Cr.P.C. pointing out any deficiency, irregularity or illegality in investigation of above mentioned case crime number. Once investigation has not been disputed the resultant charge-sheet cannot be challenged. Furthermore, at this stage, Court is required to see that evidence/material collected during course of investigation is sufficient for summoning an accused and not that same is sufficient for convicting an accused. At this stage, it is relevant to refer the judgment of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 wherein following has been observed in paragraph 37. For ready reference same is reproduced herein under:-
37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
22. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material on record and looking into the facts of the case, at this stage, it cannot be said that no offence under Section 379, 411 I.P.C. is made out against applicant. All the submissions made at the Bar relate to the disputed defence of applicant, which cannot be adjudicated upon by this Court in exercise of it's jurisdiction under section 482 Cr.PC. This Court cannot appraise and appreciate evidence to record a finding one way or other. Same can be done by trial court only upon trial of applicant in above noted criminal case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
23. In view of above, the charge-sheet submitted against applicant under Section 379 I.P.C. cannot be quashed.
24. Consequently, present application succeeds in part and is liable to be partly allowed.
25. Accordingly, it is partly allowed. It is hereby provided that cognizance taken by Additional Chief Judicial Magistrate, Rampur, regarding offence under Sections 4/21 The Mines and Minerals (Regulation and Development) Act, 1957 and consequential prosecution of applicant pursuant to above will not be valid and justified in the absence of authorization by competent Government. It shall be open for the authorised officer concerned to file complaint alongwith police report dated 24.4.2018 submitted by Investigating Officer concerned and thereafter concerned Magistrate may take cognizance after following due procedure, issue process/summons in respect of violations of various provisions of The Mines and Minerals (Regulation and Development) Act, 1957 and the Rules made thereunder and only at that stage, it can be said that cognizance has been taken by concerned Magistrate.
Order Date :- 19.8.2021 Arshad