Allahabad High Court
Mustakim Ali And Another vs State Of U.P. And Another on 12 January, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 78
Case :- APPLICATION U/S 482 No. - 17367 of 2020
Applicant :- Mustakim Ali And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Vinod Singh,Rajendra Prasad
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Heard Vinod Singh, learned counsel for the applicants and the learned A.G.A.
Learned counsel for the applicants is permitted to carry out corrections in the details of the sections under which the charge-sheet has been filed during the course of the day.
This application under Section 482 Cr.P.C. has been filed to quash the charge sheet no.72 of 2020 dated 26.2.2020, cognizance order dated 23.7.2020 as well as entire proceedings of Case No.1001 of 2020, (State Vs. Mustakim Ali and Another) arising out of Case Crime No.96 of 2020 under Section 379, I.P.C. and Section 4/21 Mines and Minerals (Development and Regulation) Act, 1957 and Section 3/4 Prevention of Damages to Public Property Act, 1984 Police Station-Swar, District-Rampur pending in the Court of 1st Additional Chief Judicial Magistrate, Court No.1, Rampur.
Learned counsel for the applicants submits that the learned trial court has wrongly taken cognizance of the offences under the Mines and Minerals (Development and Regulation) Act, 1957 hereinafter referred to as the "Act 1957" on the basis of police report though there is a specific bar under Section 21 of the Act, 1957.
In this regard, learned counsel for the applicant has placed reliance upon a judgment passed by the Supreme Court in the case of Kanwar Pal Singh Vs. State of Uttar Pradesh and Anr, 2019 (12) JT 420 and 2019 SCC Online 1652. The relevant paragraphs of the said judgment are reproduced hereinafter:
"11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar Vs. State, (1995) 1 Cal LT 95 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 under Section 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 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.
12. 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 379 of the IPC and Sections 3 and 4 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 under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs."
Learned counsel for the State has no objection if the application is decided following the judgment passed in the case of Kanwar Pal Singh (supra).
Accordingly, the application is partly allowed. The cognizance order dated 23.7.2020 is set aside qua the cognizance taken under Section 4/21 of the Act, 1957 while upholding the cognizance order qua to offence under Section 379 I.P.C. and under Section 3/4 of the Act 1984.
It is made clear that order would not debar the concerned court to take cognizance of offence under MMDR Act on receipt of complaint filed by the Authorized Officer as provided under the Act.
Order Date :- 12.1.2021
SB
