Allahabad High Court

Abdul Hayee And 7 Others vs State Of U.P. And 3 Others on 19 April, 2023

Bench: Vivek Kumar Birla, Surendra Singh-I




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:100113-DB
 
AFR 
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4675 of 2023
 
Petitioner :- Abdul Hayee And 7 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mushir Khan
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

1. Heard Shri Mushir Khan, learned counsel for the petitioners and Shri Manish Goyal, learned Additional Advocate General assisted by Shri A.K. Sand, learned A.G.A.-I appearing on behalf of the State.

2. During the course of argument Shri A.K. Sand, learned A.G.A.-I submits that during investigation Section 216 I.P.C. has been added.

3. Learned counsel for the petitioners submits that he may be permitted to amend the prayer clause. He may do so during the course of the day.

4. This writ petition has been filed for quashing the impugned First Information Report dated 04.03.2023 in Case Crime No. 42 of 2023, under Sections 3/4/25 Arms Act, Section 4/5 of Explosive Substances Act 1908 and Section 216 I.P.C., Police Station Sarai Akil, District Kaushambi and for a direction to the respondent authorities not to arrest the petitioners in pursuance of the impugned first information report.

5. The submission of the learned counsel for the petitioners is that no offence has been made out against the petitioners. None of the petitioners herein were found or arrested on the spot and one Abdul Kawi has already surrendered before the C.B.I. Court. It is submitted that as per the first information report some arms and ammunition were found in the premises which were seized by the Police and the first information report was lodged under the provisions of Sections 3/4/25 Arms Act and Section 4/5 of Explosive Substances Act 1908. It is submitted that the provisions of Section 22 of the Arms Act have not been complied with at the time of making search and seizure and therefore, it cannot be said that any offence has been made out against the petitioners. On facts it is submitted that one of the co-accused was attending his service and other arguments on the merit of the case regarding Will dated 05.10.2020 by which Abdul Kawi was disowned by his father with all ties broken and that he was living separately. Other factual arguments have also been made in defence. It is submitted that the procedure for the seizure has not been adopted and the walls of the premises were damaged by JCB.

6. Learned counsel for the petitioners further submitted that since the offence in the present case under Section 25 Arms Act is punishable with two years imprisonment, as per Part II of the First Schedule of the Criminal Procedure Code, it is a non-cognizable offence and only a complaint can be lodged in it and lodging of the first information report is not maintainable. It was also submitted that in respect of the offences under the Arms Act only a complaint could have been filed and therefore, the first information report could not have been registered and is not maintainable. It is also submitted that the petitioners are not absconder. They were also not harbouring any offender, therefore, offence under Section 216 I.P.C. is not made out. Submission, therefore, is that the impugned FIR is liable to be quashed.

7. Per contra, Shri Manish Goyal, learned Additional Advocate General assisted by Shri A.K. Sand, learned A.G.A.-I submits that it is on the information while patrolling that one wanted criminal, namely, Abdul Kawi, who carries reward of Rs. one lac is hiding in his village, the Police had gone to his village in his search but as his house was very much inside the village, the accused wanted in Case Crime No. 34 of 2005, under Sections 147, 148, 149, 307, 302, 120-B, 506 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Dhoomanganj, District Prayagraj and C.B.I. R.C. No. 02/S/2016 case no. 20432 of 2022, under Sections 147, 148, 149, 307, 302, 120-B I.P.C. and Section 27 Arms Act as well as present accused have absconded and illegal Arms and ammunition were found in the premises. Submission, therefore, is that due procedure was adopted by the Police Authorities in this search and seizure and there was no illegality in search and seizure which was made as per the provisions of the Arms Act read with the provisions of Cr.P.C. It was further submitted that the present FIR is in respect of commission of offences under Section 3/4 as punishable under Section 25 of the Arms Act including the offences under Section 4/5 of the Explosive Substances Act 1908 and Section 216 I.P.C. Shri Manish Goyal, learned Additional Advocate General further submitted that once a first information report can be lodged in respect of certain offences, the other offences in regard whereof ordinarily complaint is maintainable, can also be included in such first information report. He, therefore, submits that a bare reading of the first information report clearly reflects that a cognizable offence has been committed and no interference is warranted.

8. We have considered the rival submissions and perused the record.

9. Needless to say that Code of Criminal Procedure, 1973 extensively provides power for arrest, search and seizure covering all the circumstances as may be visualized including powers to do so even without warrant. Chapter V, VI, VII and XII are broadly relevant in this regard. Before proceeding further, it would be relevant to take note of provisions of the Arms Act and Cr.P.C. relevant in the present case.

10. Section 20, 22, 37 and 38 of the Arms Act are quoted as under:

"20. Arrest of persons conveying arms, etc., under suspicious circumstances.--Where any person is found carrying or conveying any arms or ammunition whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose, any magistrate, any police officer or any other public servant or any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without warrant and seize from him such arms or ammunition.

22. Search and seizure by magistrate.-- (1) Whenever any magistrate has reason to believe--

(a) that any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or

(b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety,

the magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such person or in which the magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.

(2) Every search under this section shall be conducted by or in the presence of a magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government.

37. Arrest and searches.--Save as otherwise provided in this Act,--

(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the [Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered without delay to the officer in charge of the nearest police station and that officer shall--

(i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody till the appearance of that person before the magistrate, or

(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the magistrate.

38. Offences to be cognizable.--Every offence under this Act shall be cognizable within the meaning of the [Code of Criminal Procedure, 1973 (2 of 1974)]."

11. Sections 4, 5, 41, 47, 48, 94, 97, 100, 102 and 165 Cr.P.C. are quoted below. These provisions also include the provisions relied on by learned counsel for the petitioners.

"4. Trial of offences under the Indian Penal Code and other laws.-

(1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

41. When police may arrest without warrant.-

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely,:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence;or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

47. Search of place entered by person sought to be arrested.-

(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance:

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

48. Pursuit of offenders into other jurisdictions.- A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.

94. - Search of place suspected to contain stolen property, forged documents, etc. - (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable--

(a) to enter, with such assistance as may be required, such place,

(b) to search the same in the manner specified in the warrant,

(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies,

(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safely,

(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.

(2) The objectionable articles to which this section applies are--

(a) counterfeit coin;

(b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);

(c) counterfeit currency note; counterfeit stamps;

(d) forged documents;

(e) false seals;

(f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);

(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).

97. Search for persons wrongfully confined.- If any District Magistrate, Sub- divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

100. Persons in charge of closed place to allow search.-(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub- section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 ).

102. Power of police officer to seize certain property.- (1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]

165. Search by police officer.- (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place with the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) A police officer proceeding under sub- section (1), shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search- warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under sub- section (1) or sub- section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate."

12. Before we proceed further, it would be apposite to take note of few judgements of Hon'ble Supreme Court.

13. The Apex Court in the case of Union of India vs. Ashok Kumar Sharma and others, (2021) 12 SCC 674 has held as under:

"70. In State (NCT of Delhi) v. Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , the matter arose under the Mines and Minerals (Development and Regulation) Act, 1957 ("the MMDR Act") as also under Sections 378 and 379IPC and the question which arose for decision was whether the provisions of Sections 21 and 22, apart from other provisions of the MMDR Act, operated as a bar to prosecution for the offences under Sections 379/114 and other provisions of the IPC. Section 21 of the said Act prescribes various penalties. Section 22 deals with cognizance of offences and it reads as follows:

"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."

71. The Court was dealing with appeals from the judgments [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] , [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160] of the High Courts of Delhi and Gujarat. The registration of the cases was challenged on the basis of Section 22 of the MMDR Act. Paras 8, 9, 10 and 11 reveal the questions which arose and how they came to be dealt with by the High Court : (Sanjay case [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , SCC pp. 781-82)

"8. Criminal Appeal No. 499 of 2011, as stated above, arose out of the order [Sanjay v. State [Sanjayv. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] ] passed by the Delhi High Court. The Delhi High Court formulated three issues for consideration:

(1) Whether the police could have registered an FIR in the case;

(2) Whether a cognizance can be taken by the Magistrate concerned on the basis of police report; and

(3) Whether a case of theft was made out for permitting registration of an FIR under Sections 379/411 of the Penal Code.

9. The Delhi High Court [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] after referring to various provisions on the MMDR Act vis-à-vis the Code of Criminal Procedure disposed of the application directing the respondent to amend the FIR, which was registered, by converting the offence mentioned therein under Sections 379/411/120-B/34IPC to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] held as under : (Sanjay case [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] , SCC OnLine Del)

'18. In view of the aforesaid and taking into consideration the provisions contained under Section 21(6) of the said Act I hold that:

(i) The offence under the said Act being cognizable offence, the police could have registered an FIR in this case;

(ii) However, so far as taking cognizance of an offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorised officer, which may be filed along with the police report;

(iii) Since the offence of mining of sand without permission is punishable under Section 21 of the said Act, the question of the said offence being an offence under Section 379IPC does not arise because the said Act makes illegal mining as an offence only when there is no permit/licence for such extraction and a complaint in this regard is filed by an authorised officer.'

10. On the other hand the Gujarat High Court [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160] formulated the following questions for consideration : (Vishalbhai Rameshbhai Khurana case [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160] , SCC OnLine Guj para 5)

'5. ... (1) Whether Section 22 of the Act would debar even lodging an FIR before the police with respect to the offences punishable under the said Act and the Rules made thereunder?

(2) In case such FIRs are not debarred and the police are permitted to investigate, can the Magistrate concerned take cognizance of the offences on a police report?

(3) What would be the effect on the offences punishable under the Penal Code, 1860 in view of the provisions contained in the Act?'

11. The Gujarat High Court [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160] came to the following conclusion : (Vishalbhai Rameshbhai Khurana case [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160] , SCC OnLine Guj para 28.5)

'28.5 ... "18. ... (i) The offence under the said Act being cognizable offence, the police could have registered an FIR in this case;

(ii) However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorised officer, which may be filed along with the police report;

72. The Gujarat High Court also held that Section 22 did not prohibit registering an FIR by the police in regard to the offence under the MMDR Act and the Rules thereunder. However, it was not open to the Magistrate to take cognizance. This Court, after referring to the decisions in Sanjay [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] , held as follows : (Sanjay case [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , SCC pp. 811-12, paras 69-73)

"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 illegally 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 ecosystem of the rivers and safety of bridges. It also weakens riverbeds, 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 groundwater 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 authorised 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 authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the 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 is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.

71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and removes or transports those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.

72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378IPC, 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, gravel and other minerals from the river, which is the property of the State, out of the 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 under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173CrPC 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 the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378IPC, 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. 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 Magistrates concerned to proceed accordingly."

73. Chapter XII CrPC carries the chapter heading "Information to the Police and their Powers to Investigate":

74. It comes under the section heading "Procedure for investigation". The body of the section can be split up into the following parts:

74.1. An officer in charge of a police station may from information received have reason to suspect the commission of an offence. He may also have reason to suspect the commission of cognizable offence not on the basis of any information but otherwise.

74.2. As far as information is concerned, it is clearly relatable to the information which has been provided to him within the meaning of Section 154. Cases where he acts on his own knowledge would be covered by the expression otherwise.

74.3. The offences must be an offence which he is empowered under Section 156 to investigate. We have noticed that a police officer is empowered to investigate a cognizable offence without an order of the Magistrate. As far as non-cognizable offence is concerned, he cannot investigate such offence without the order of the Magistrate having power to try or commit the case for trial.

170.2. There is no bar to the police officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act i.e. if he has committed any cognizable offence under any other law."

14. In Jayant and others vs. State of Madhya Pradesh (2021) 2 SCC 670 the Apex Court has laid down as follows:

"8.3. That thereafter, after considering the relevant provisions of the MMDR Act, this Court opined that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence. Ultimately, this Court concluded in paras 72 and 73 as under: (SCC p. 812)

"72. From a close reading of the provisions of the 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, gravel and other minerals from the river, which is the property of the State, out of the 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 under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC 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 the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 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. 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 Magistrates concerned to proceed accordingly."

8.4. Thus, as held by this Court, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a written complaint made by the authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code."

15. In State (NCT of Delhi) vs. Sanjay (2014) 9 SCC 772 the Apex Court has held as under:

73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 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. 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 Magistrates concerned to proceed accordingly."

16. In Sanjay (supra) Hon'ble Supreme Court was considering as to whether the provisions of Mines and Minerals (Development and Regulation) Act 1957, and Rules framed thereunder (MMDR Act/Rules) operates as bar against prosecution of a person who has been charged with the allegation that constitutes an offence under I.P.C. The question was when the act of an accused is an offence both under I.P.C. and under the provisions of MMDR Act, whether the provisions of MMDR Act explicitly or implicitly excludes the provisions of I.P.C. It would be relevant to take note of paras 72 & 73 of Sanjay (supra).

17. In Jayant (supra) the judgment in Sanjay (supra) was considered with appraisal in 8.1 onward and in para 8.4 it was held as under:

"8.4. Thus, as held by this Court, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a written complaint made by the authorised officer in this behalf would be attracted only when such person is sought to be prosecuted for contraventions of Section 4 of the MMDR Act and not for any act or omission which constitutes an offence under the Penal Code."

18. From reading of above two judgements what can be safely gathered is that where a Special Act provides for lodging of complaint for any offence committed thereunder, if any offence under I.P.C is also committed, the Police can register a case, investigate and submit a report. Thus, in the present case FIR was clearly maintainable and therefore, there is no bar in arrest, search and seizure by the Police as per Cr.P.C. as the provisions thereof are nowhere in contradiction of the provisions of the Arms Act and have been made applicable vide Section 37 Arms Act to arrest and seizure made under Arms Act. In fact, this case is even on a better footing as the police has proceeded on receiving information about a wanted criminal, Abdul Kawi and his aids in a already pending case for offences committed under I.P.C.

19. It would also be relevant to take note of para 120.2 of Ashok Kumar Sharma (supra) wherein while drawing conclusions and issuing directions it was held that there is no bar to the police officers to investigate and prosecute person if he has committed any cognizable offence under any other law. In this case, the Hon'ble Supreme Court was considering the provisions of Drugs and Cosmetics Act 1940, wherein quite specific provisions for arrest, search and seizure and authority of the officer have been given. Relevant para 170.2 is quoted as under:

20. From a perusal of the FIR, we find that fire arms, cartridges and ammunition including bombs were recovered from the house of co-accused Abdul Kawi where petitioners are living being family members of Abdul Kawi and on hearing the arrival of Police party they absconded from there and large quantity of firearms, cartridges and ammunition were recovered by the police party from their house. The alleged offence relating to possession of such firearms and ammunition is in contravention of Section 3 & 4 punishable under Section 25(1)(1-B) of the Arms Act. The FIR also includes offence under Section 216 I.P.C. as well, which is also a cognizable offence. Further as per section 38 of the Arms Act every offence under this Act (Arms Act) is a cognizable offence, therefore, FIR is clearly maintainable. Thus, the argument of the learned counsel for the petitioners that FIR is not maintainable, is misconceived and is, therefore, rejected.

21. From the perusal of the FIR it transpires that on the alleged date of occurrence in view of the forthcoming Holi and Shab-e-Barat festivals the police party was patrolling in its area. Suddenly they received information that co-accused Abdul Kavi who was wanted in the aforesaid case crime numbers is hiding in his house with his aids with illegal arms and ammunition in his parental house. Acting on that information police party immediately raided his house and huge quantity of arms and ammunition was recovered hidden in the walls of his house. Undisputedly, the police has proceeded on information about an absconder in pending cases (as noted in the FIR) registered under the provisions of I.P.C. and other offences, the power to arrest, search and seizure as provided under Cr.P.C. was clearly available to the police officer. Needless to say, upon such further investigation if recovery is made or any other offence is also found to have been committed, sections are added.

22. In the facts and circumstances, when information was received by police party while patrolling there was an urgency for making raid to apprehend the wanted accused absconder and his aids and to recover illegal arms and ammunition, search and seizure was made by the police in exercise of powers under relevant provisions of the Arms Act, 1959, as noted above, read with other provisions of Cr.P.C., as section 37 Cr.P.C. clearly provides that save as otherwise provided in the Act the provisions of Cr.P.C. would be applicable. In these facts and circumstances of the case provision of Section 22 Arms Act has no application. Therefore, the argument advanced on behalf of the petitioners, that the search and seizure was not made in the presence of the Magistrate or that the police did not contact the Magistrate before making search and seizure, has no force.

23. We find substance in the argument of the learned counsel for the State that as a detailed first information report has been lodged giving every minute detail the same clearly discloses cognizable offence. From perusal of the first information report we find that it is mentioned there that the accused Abdul Kawi is a wanted accused in the above noted case crime who ran away from the spot with all his aids and family members. We find that the procedure as provided in Cr.P.C. read with provisions of the Arms Act has been fully complied with and as such the argument placing reliance solely on provision of Section 22 of the Arms Act and on Section 94 Cr.P.C. is misconceived.

24. The provisions of Arms Act, Cr.P.C. and the judgments quoted above clearly reflects that there was no lack of powers on part of the Police in the present case. The manner in which the Police has proceeded on an information while patrolling was well within their power and jurisdiction.

25. In view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report.

26. For the discussion made herein-above, the writ petition is dismissed leaving it open for the petitioners to apply before the competent court for anticipatory bail/bail as permissible under law and in accordance with law.

Order Date :- 19.4.2023

Brijesh Maurya