Allahabad High Court
Jagendra Kumar Nishad And 7 Others vs State Of U.P. And Another on 8 August, 2023
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:159867 Court No. - 86 Case :- APPLICATION U/S 482 No. - 27727 of 2023 Applicant :- Jagendra Kumar Nishad And 7 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Gupta 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 25.8.2022 as well as cognizance order dated 28.02.2023 in case no. 2740 of 2023 (State Vs. Jagendra Kumar Nishad) arising out of case crime no. 208 of 2022, under section 379, 411 I.P.C., section 3/58/72 of U.P. Minor Minerals (Concession) Rules 2021, section 4/21 Mines and Minerals (Regulation and Development) Act 1957, section 3 and 13 of U.P. Minerals (Prevention of Illegal Mining Transportation and Storage) Rules 2018 and section 3/5 Prevention of Damage to Public Property Act 1984, P.S. Kurara, District Hamirpur, pending in the court of C.J.M, Hamirpur.
3. Brief facts giving rise to this application is that on 19.7.2022 at about 3.00 p.m., the joint team of Revenue Departments, Mines Department and Police Department made surprise inspection at Village Panchayat Kyotara, Hamirpur and during inspection, 240 cubic meter of illegally mined sand was found lying at the place of inspection at four different places. On interrogation, it was disclosed that the applicants during night hour have illegally the mined sand from Betwa river and stored the same. In this regard, a first information report was lodged against the applicants, which was registered as vide Case Crime No. 208 of 2022, under Sections 379, 411 IPC, 3(1)/58/72(6) of Uttar Pradesh Minor Mineral (Concession) Rules, 2021, Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957 and Sections 3/5 Prevention of Damage to Public Property Act 1984.
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 under Sections 379, 411 IPC, 3(1)/58/72 of Uttar Pradesh Minor Mineral (Concession) Rules, 2021, Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957 and Sections 3/5 Prevention of Damage to Public Property Act 1984. vide order dated 28.02.2023.
5. Being aggrieved and dissatisfied by the said order dated 28.02.2023, the present application u/s 482 Cr.P.C. has been filed.
6. Learned counsel for the applicants has submitted that from the allegations made in the FIR, the statements of witnesses recorded under Section 161 Cr.P.C. and the recovery made, no offence under Section 379/411 IPC and 3/5 Prevention of Damage to Public Property Act. is made out against the applicants and the present criminal case has been instituted with a malafide purpose just for harassment, as such, entire criminal proceedings under Sections 379/411 I.P.C. and 3/5 Prevention of Damage to Public Property Act. and section 3/13 of U.P. Minerals (Prevention of Illegal Mining, Transportation and storage) Rules 2018 is liable to be quashed.
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 laid 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 3/58/72 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 28.2.2023 based on the charge sheet is bad in the eye of law and therefore, liable to be set aside.
12. Per contra, learned AGA has submitted that so far as submission of charge-sheet under Section 379/411 IPC and 3/5 of Prevention of Damage to Public Property Act. is concerned, the said offence is clearly made out against the applicants, on the basis of the allegations made in the FIR as well as statements of witnesses recorded under Section 161 Cr.P.C. coupled with the recovery of sand made without the requisite Form EMM11 and thus the cognizance order based on the charge-sheet under the said Section cannot be quashed, however, so far as offence under Section 4/21 of the Mines and Minerals (Development and Regulations) Act, 1957 is concerned, in view of the provision contained in Section 22 of the Act, where the cognizance on a charge-sheet is barred, the competent authority be directed to file a complaint against the applicants in view of the provisions contained in the Act.
13. Learned A.G.A. has further submitted that Section 3 of U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2018 provides for prohibition which is quoted below:
"3. Prohibition. - (1) No person shall carry on the business of buying, possessing, storing, selling, supplying, transporting, distributing or delivering for sale or processing of minerals at any place for the purpose of sale or consumption or otherwise deal with any mineral except in accordance with the terms and conditions of a stock licence granted under these rules:
Provided that a holder of a reconnaissance permit, prospecting, licence or mining lease in respect of the minerals for which he holds a mineral concession shall not be required to obtain a licence for possessing, storing, selling, supplying, transporting, distributing or processing of such mineral(s) within the leasehold area and transportation from the leasehold area as the case may be:Provided further that lessee/permit holder or any person who purchase and posses mineral(s) for utilisation of their own consumption shall not be required to obtain a licence."
14. The applicant has failed to furnish the license as required under section 3 of the aforesaid Rules as such they are also liable for recovery of penalty upto Rs. 5.00 lacs and price of such minerals including royalty. Thus, the said violation of Rules is also clearly disclosed against the applicant.
15. 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 28.2.2023 taking cognizance of the offence based on the charge-sheet dated 25.8.2022 and summoning the applicants under Section 3(1)/58/72 of Uttar Pradesh Minor Mineral (Concession) Rules, 2021, Sections 4/21 of Mines and Minerals (Development and Regulations) Act, 1957 and Section section 3 and 13 of U.P. Minerals (Prevention of Illegal Mining Transportation and Storage) Rules 2018 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 21 of the Mines and Minerals (Development and Regulations) Act, 1957 and Sections 57 of the U.P. Minor Minerals (Concession) Rules, 1963. So far as the prosecution of the applicants under Sections 379/411 I.P.C. and 3/5 Prevention of Damage to Public Property Act, 1984 is concerned, prima facie offence under Section 3/5 Prevention of Damage to Public Property Act, 1984 and section 379 /411 I.P.C. is clearly made out against the applicants, as such, proceedings under Section 3/5 Prevention of Damage to Public Property Act, 1984 and 379/411 I.P.C. cannot be quashed.
16. In view of the foregoing discussion, proceedings of Case no. 2740 of 2023 (State Vs. Jagendra Kumar Nishad) arising out of Case Crime no. 208 of 2022, under Section 3(1)/58/72 of U.P. Minor Minerals (Concession) Rules 2021, section 4/21 Mines and Minerals (Regulation and Development) Act 1957, P.S. Kurara, District Hamirpur, pending in the court of C.J.M, Hamirpur, based on the charge-sheet stands quashed, however the proceedings against the applicants under Section 379, 411 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984 are just, proper and legal and do not call for any interference and the said proceedings would continue against the applicants under Section 379, 411 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984 in accordance with law. So far as proceedings under section 3/13 of U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules are concerned, the competent officer/District Officer may proceed against the applicants in accordance with law.
17. 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(1)/58/72 of U.P. Minor Minerals (Concession) Rules 2021 and section 4/21 Mines and Minerals (Regulation and Development) Act 1957, the learned Magistrate may proceed in accordance with law in the said sections. Further the proceedings of the instant case under Section 379, 411 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984 shall continue against the applicants and brought to logical conclusion in accordance with law.
Order Date :- 8.8.2023 R