Allahabad High Court

Nawab Ali And 2 Others 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. - 19984 of 2020

Applicant :- Nawab Ali And 2 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Vinod Singh

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Vinod Singh, learned counsel for applicants and learned A.G.A. for State.

2. Perused the record.

3. Present application under
Section 482
Cr.P.C. has been filed challenging charge-sheet no. 69 of 2020 dated 26.02.2020 submitted in Case Crime No. 93 of 2020 under
Section 379
I.P.C,
Sections 4
/
of The Mines and Minerals (Regulation and Development) Act 1957 and
Sections 3
/
Prevention of Damage to Public Property Act 1984, P.S. Swar, District-Rampur, Cognizance Taking Order dated 23.07.2020 passed by Additional Chief Judicial Magistrate, Court No.1, Rampur upon aforesaid charge-sheet, as well as entire proceedings of consequential Case No. 995 of 2020 (
State Vs. Nawab Ali and others
) under
Section 379
I.P.C,
Sections 4
/
of The Mines and Minerals ( Regulation and Development) Act 1957 and
Sections 3
/
Protection of Damage to Public Property Act, 1984, P.S. Swar, District Rampur, now pending in the court of Additional Chief Judicial Magistrate, Court no.1, Rampur.

4. Record shows that first informant/opposite party-2, Deepak Bhatnagar, Halka Lekhpal lodged an F.I.R. dated 14.02.2020, which was registered as Case Crime No. 93 of 2020 under
Section 379
I.P.C,
Sections 4
/
The Mines and Minerals (Regulation and Development) Act 1957 and Sections 3/4 Protection of Damage to Public Property Act 1984, P.S. Swar, District-Rampur. In the aforesaid F.I.R. three persons namely, Nawab Ali, Nasir Ali and Ashiq Ali (applicants herein), have been nominated as named accused

5. In brief, as per prosecution story as unfoled in F.I.R. it is alleged that named accused persons were illegally excavating Minor Mineral in Survey Plot No. 60M. Areas 1.275 hectares and were transporting the same without requisite permission from competent authority. As such accused persons have caused damaged to public property, loss of revenue and further violated the directions issued by National Green Tribunal. Accused persons have thus indulged in illegal mining and transporting the same, which is in contravention of provisions of relevant Act and Rules.

6. After registration of above noted F.I.R., 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. Investigating Officer formed an opinion that a charge-sheet should be submitted against named accused. Accordingly, Investigating Officer submitted charge-sheet dated 26.02.2020 whereby and whereunder named accused Nawab Ali, Nasir Ali and Ashiq Ali (applicants herein) have been charge sheeted under
Section 379
I.P.C,
Sections 4
/
of The Mines and Minerals (Regulation and Development) Act 1957 and
Sections 3
/
Prevention of Damage to Public Property Act, 1984.

7. After submission of aforesaid charge-sheet, Additional Chief Judicial Magistrate, Court no.1, Rampur passed Cognizance Taking Order/Summoning Order dated 23.07.2020 in consequential Case No. 995 of 2020 (
State Vs. Nawab Ali and others
) under
Section 379
I.P.C,
Sections 4
/
of The Mines and Minerals (Regulation and Development) Act 1957 and
Sections 3
/
Prevention of Damage to Public Property Act, 1984, P.S. Swar, District Rampur, came to be registered against applicants which is said to be pending in court of Additional Chief Judicial Magistrate, Court no.1 Rampur.

8. Feeling aggrieved by above, applicants, who are charge-sheeted accused have now approached this Court by means of present application under Section 482 Cr.P.C.

9. Learned counsel for applicants contends that applicants are innocent. They have been falsely implicated in above mentioned case crime number. It is then contended that allegations made in F.I.R. are false and concocted. Investigation is defective inasmuch as Investigating Officer has not considered on the spot position. According to learned counsel for applicants, it is admitted case of prosecution that applicants are owners of Survey Plot No. 60M. Area 1.275 hectares in which illegal mining is alleged to have been done. It is thus urged that no offence under
Section 379
I.P.C. is made out against applicants. It is lastly contended that by virtue of provisions contained in
Section 22
of 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. Consequently Cognizance Taking Order/Summoning Order dated 23.07.2020 passed by Additional Chief Judicail Magistrate, Court no.1, 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 applicants in the offence 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 applicants. Consequently, charge-sheet has been submitted against applicants. In the charge-sheet so submitted as many as four 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 applicants is false or there is no material to support prosecution of applicants. Submission urged by learned counsel for applicants in support of present application relates to disputed defence of applicants, 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 applicants can be agitated by applicants before court below at the time of framing of charge. Reliance placed upon
Section 22
of The Mines and Minerals (Development and Regulation) Act, 1957 by learned counsel for applicants 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 applicants 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 (Development and Regulation) Act, 1957
is a special Act.
Section 22
of aforesaid Act clearly provides that in respect of any offence punishable under the Act or 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 in
Section 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 the
MMDR Act
and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of
Section 4
and 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 of
Section 4
and 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 in
Section 22
of 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 of
Section 4
of the Act and not for any act or omission which constitute an offence under
Indian 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 minerals in 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 under
Sections 378
and
of the Indian Penal Code.

72. From a close reading of the provisions of
MMDR Act
and the offence defined under
Section 378
,IPC, it is manifest that the ingredients constituting the offence are different.  The contravention of terms and conditions of mining lease or doing mining activity in violation of
Section 4
of the Act is an offence punishable under
Section 21
of 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 the
MMDR Act
on 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
Code of 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 in
Section 190 (1)(d)
of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-à-vis the
Code of Criminal Procedure
and the
Indian Penal Code
, we are of the definite opinion that the ingredients constituting the offence under the
MMDR Act
and 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 the
IPC
. Hence, for the commission of offence under
Section 378
Cr.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 in
Seema Sarkar v. State17
wherein 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 and
Section 379
of 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 under
Section 379
of 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 to
Section 26
of the General Clauses Act and the meaning of the expression ''same offence', to observe that the offence underSection 21 read with
Section 4
of the Mines Regulation Act and
Section 379
of 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 of
Section 4
which 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 under
Section 379
of the IPC. We would also observe that the violation of
Section 4
being 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 under
Section 379of
the IPC and
Sections 3
and
of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under
Section 21
read 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 379 of the
IPC
and
Sections 3
and
of 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 upon 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 the
MMDR Act
and the Rules made thereunder vis­à­vis the
Code of Criminal Procedure
and the 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 under Section 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 the
MMDR Act
and the Rules made thereunder and at this stage the bar under
Section 22
of the MMDR Act shall not be attracted;

21.2. The bar under
Section 22
of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the
MMDR Act
and Rules made thereunder and orders issuance of process/summons for the offences under the
MMDR Act
and 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 the
MMDR Act
and the Rules made thereunder, when a Magistrate passes an order under Section 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 in
Section 22
of 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 the
MMDR Act
and 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 sub­
section1
of Section 23A, considering sub­
section 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 Act
or any rule made thereunder so compounded.

22. However, the bar under sub­
section 2
of Section 23A shall not affect any proceedings for the offences under the
IPC
, such as,
Sections 379
and
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 under the
Indian Penal Code
is 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 and Regulation) Act
on 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 in
Section 22
of the the Mines and Minerals (Development and Regulation) Act 1957.

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 under
section 4
/
of the Mines and Minerals (Development and Regulation) Act 1957 only is hereby quashed with liberty to the prosecution /officer concerned to file complaint against the applicants under the
Mines and Minerals (Development and Regulation) Act
1957.

44. It is made clear that so far as order taking cognizance under Sections 147, 148, 149, 336, 353, 307, and 379 under
Indian Penal Code
are 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 the
MMDR Act
and the Rules made thereunder, when a Magistrate passes an order under Section 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 in
Section 22
of 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 the
MMDR Act
and 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 applicants under
Section 379
I.P.C is unsustainable or not. It may be noted that subsequent to F.I.R. dated 14.02.2020, 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 applicants, Investigating Officer submitted charge-sheet dated 26.02.2020. In the charge-sheet so submitted as many as four prosecution witnesses have been nominated. As such, it cannot be said at this stage that prosecution of applicants is false or there is no material to support the prosecution of applicants. 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 not 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
Nupur Talwar Vs. C.B.I. and another
, (2012) 11 SCC 465, wherein following has been observed in paragraph 37:-

"37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in
Cahndra Deo vs. Prokash Chandra Bose
alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :

"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36;
Ramkisto Sahu v. State of Bihar
, AIR 1952 Pat 125;
Emperor v. J.A. Finan
, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."

22. Having heard learned counsel for applicants, 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
I.P.C. is made out against applicants. All the submissions made at the Bar relate to the disputed defence of applicants, 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 applicants 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 applicants 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
/
The Mines and Minerals (Regulation and Development) Act, 1957 and
Sections 3
/
Prevention of Damage to Public Property Act, 1984 and consequential prosecution of applicants 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 26.02.2020 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

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