Kanhai @ Rajesh Mishra And 9 Others vs State Of U.P. And Another
2022 Latest Caselaw 15426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 32297 of 2017
 

 
Applicant :- Kanhai @ Rajesh Mishra And 9 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shailendra Kumar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Sri Shailendra Kumar Tripathi, learned counsel for applicants submits that investigation was conducted against applicants for committing offence under Section 21 of The Mines and Minerals (Development and Regulation) Act, 1957 and after investigation charge sheet was filed on 06.09.2012 and cognizance was taken by learned trial Court.

Challenging the said order, this application was filed in the year 2017 wherein interim order was passed on 11.10.2017.

Learned counsel placed reliance upon judgments passed by this Court in the case of Imran and others vs. State of U.P. and another, 2019 0 Supreme (All) 975 that in a case where charge sheet is filed under Mines and Minerals (Development and Regulation) Act, 1957, that shall be considered as a complaint case in terms of the provisions of Section 22 of said Act.

Learned A.G.A. for the State has not been able to refute the above submissions.

This Court in the case of Imran and others (supra) has held :-

"34. On the aforesaid discussion , this Court has arrived on the following conclusion :-

(a) There is no dispute that an offence under Sub-Section 1 of Section 21 of the Act 1957 is cognizable as provided in Section 21(6)of the said Act, therefore in view of principles laid down by the Apex Court in case of Lalita Kumari (Supra), it is lawful for police to register the case and to investigate the same as per provisions of the Section 154 of Cr.P.C. .In the present case in hand the police not only registered the case under the IPC but also registered the case under Mines & Minerals (Development & Regulation) Act 1957 because the offences as pointed out and registered under both the aforesaid Acts are cognizable , but the difficulty arises only in the matter of taking cognizance because Section 22 of the Act 1957 prohibits taking cognizance being taken except upon a complaint in writing made by a person authorized either by the Central Govt. or the State Govt. If the act of the accused constitutes exclusively an offence under the Act 1957, it goes without saying that the police officer on completing the investigation cannot lay a police report under Section 173 of The Code of Criminal Procedure, because Court cannot take cognizance in view of the bar contained in Section 22 of the Act. If the act of accused makes out a cognizable offence under Indian Penal Code as well as an offence under Section 21 of the MMDR Act 1957, the registration of FIR under both the enactments is not illegal and the police can further investigate into such cases and file a police report under Section 173 of The Code of Criminal Procedure confining to the offence under Indian Penal Code alone. So far as offence under Section 21 of the Act 1957 is concerned , it is for the authorized person to file a complaint after investigation before the magistrate concerned,upon which cognizance can be taken by the magistrate concerned.

(b) In any event, if the police office files a police report (charge- sheet)under Section 173 Cr.P.C. in respect of offence under IPC as well as under Section 21 of Mines & Minerals (Development & Regulation) Act 1957, the magistrate may take cognizance of the offence under IPC alone and proceed with the trial. So far as offence under Section 21 of the Act 1957 is concerned , the magistrate can permit the officer concerned to file separate complaint and in case of filing such complaint by a person authorized in that behalf by the Central Govt. or the State Govt. , can take cognizance under Section 22 of MMDR Act 1957.

38. Accordingly further proceeding of criminal case no. 1520 of 2018 pursuant to impugned charge-sheet dated 14.04.2018 arising out of case no. 461 of 2017 so far as offence under section 4/21 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."

It would be apposite to mention about a judgment passed by the Supreme Court in the case of Pradeep S. Wodeyar vs. State of Karnataka, 2021 SCC OnLine SC 1140 that :-

"D. The Conclusion

101.In view of the discussion above, we summarise our findings below:

(i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209 CrPC. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular;

(ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC;

(iii) The decision inGangula Ashok(supra) was distinguished inRattiram(supra) based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others;

(iv) In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated;

(v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' under Section 465 CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 CrPC;

(vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible under Section 220 CrPC. There is no express provision in the MMDR Act which indicates that Section 220 CrPC does not apply to proceedings under the MMDR Act;

(vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 CrPC. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings;

(viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material;

(ix) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the respondent has complied with Section 22 CrPC; and

(x) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be aprima faciecase against A-1, which is sufficient to arraign him as an accused at this stage."

(emphasis supplied)

In view of above, application stands allowed with a direction that impugned summoning order is set aside with a liberty to officer concerned to file complaint against applicants under the said Act which shall be done within a period of three weeks from today.

Order Date :- 1.11.2022

Nirmal Sinha