Mehandihasan And 3 Others vs State Of U.P. And Another
2023 Latest Caselaw 6768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 24.2.2023
 
Delivered on  2.3.2023.
 
Court No. - 34 
 

 
Case :- APPLICATION U/S 482 No. - 18996 of 2022 
 
Applicant :- Mehandihasan And 3 Others 
 
Opposite Party :- State Of U.P. And Another 
 
Counsel for Applicant :- Vikrant Gupta,Satyendra Narayan Singh 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble Saurabh Shyam Shamshery,J. 

1. Heard Sri Satyendra Narayan Singh, learned counsel for applicants and Sri Paritosh Malviya, learned A.G.A. Ist.

2. By means of this application, applicants have prayed for setting-aside entire proceedings of S.S.T. No.22/2022, State Vs. Mehandi Hasan & Ors, impugned cognizance/summoning order dated 2.4.2022 and the impugned charge-sheet No.259/2021 dated 20.7.2021, arising out of Case Crime No.0433/2020, under Section 3 (1) U.P. Gangsters Act, 1986, P.S. Swar, District-Rampur pending before learned Additional District and Sessions Judge, Court, No.3 Rampur.

3. Issue involved in the present case is that whether a group of persons acting collectively by violence or otherwise with an object of disturbing public order for gaining any undue temporal pecuniary advantage indulged in anti-social activities of illegal mining would fall under the definition of ''Gang' under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter called the ''Act, 1986)'.

4. Learned counsel for applicants has submitted that illegal mining activity would not fall under any of anti-social activities as mentioned in Section 2 (b) (i) to 2 (b) (xxv) of the ''Act, 1986', therefore, impugned charge-sheet filed against applicants under the ''Act, 1986' only on the basis of criminal cases lodged for illegal mining though in addition to charge-sheet filed against applicants under Section 379 I.P.C., (both the offences will be tried under different procedure), would not legally sustain. Learned counsel for applicants has read out Section 2 of Act, 1986, entirely.

5. Per contra, learned A.G.A. 1st has submitted that applicants by indulging in illegal mining have also created panic, alarm and terror in public as well as its impact has fallen on security of State, public order and even on tempo of life, which are anti-social activities under the ''Act, 1986', therefore, there was no illegality in the charge-sheet filed against applicants under ''Act, 1986'.

6. Heard learned counsel for parties and perused records.

7. A Division Bench of this Court in Criminal Misc. Writ Petition No.18828 of 2017, Raje Miyan @ Rajjan Khan and 4 Others Vs. State of U.P. & Ors, decided on 21.9.2017 has held that an offence under Mines and Minerals would also fall under the ambit of Act, 1986. Relevant part of the said judgment is mentioned hereinafter:

" The right to carry out mining activity is regulated by the provisions of the Mines and Minerals Act and for mining, a particular person has to obtain licence and to pay royalty to the Government and only thereafter he is entitled to enter into mining activity. The mining activity without any licence and excavating the gravel in a stealthily manner

and thereby selling it to the persons for an amount for which he would be gaining pecuniary, material or other advantage for himself is illegal. Therefore, submission of the learned counsel for the petitioners that the illustrations enumerated under Section 2(b)(i) to (v) of the Gangster Act do not contemplate any offence committed under the Mines and Minerals Act, cannot be accepted as the illustrations which have been given in the aforesaid Section are illustrative in nature and they have to be interpreted in such manner that it curbs the mischief which is prevailing in the society. If restricted meaning is given in the illustrations enumerated under Section 2(b) of the Gangster Act, then a person getting the benefit of advantage of illegal mining could not be fastened under the Gangster Act.

Section 2(b)(iii) of the Gangster Act provides that "occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person".

The aforesaid definition goes to indicate that property under the Mines and Minerals Act was being removed unlawfully than in accordance with law. Apart from it, the FIR also contained Sections 379/411 IPC and the aforesaid Sections fall under Chapters XVI, XVII and XXII of the Indian Penal Code and the commission of crime under Sections 379/411 IPC is covered under Section 2(b)(i) of the Act, which reads as under :-

"(i) offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code(Act No.45 of 1860)"

x x x

In the present case, the petitioners have been involved in the illegal mining activity and such activity has been very rampant in the State of U.P. on account of which the State resources are being exploited to a large extent. This Court has even intervened to the extent of passing an order for CBI inquiry into the illegal mining activity in the State.

Looking to the state of affairs prevailing in the State and looking to the nature of rampant illegal mining prevailing in the State, we are not inclined to interfere in the matter."

8. Though the Division Bench of this Court in Raje Miyan @ Rajjan Khan (Supra) has held that a gang involved in illegal mining can be punished under the Act, 1986, still this Court deals with other aspects of the case also.

9. Section 2 (b) (iii) of Act, 1986 states that occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claim for title or possession of immovable property whether in himself or any other person, would fall under anti-social activity.

10. Supreme Court in the case of Sri Tarkeshwar Sio Thakur Jiu Vs. Dar Dass Dey & Co. & Ors, (1979) 3 SCC 106 has held in paragraph 36 that immoveable property shall also include benefit arising out of land which is mentioned hereinafter:

"36. The definition of 'immovable property' given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (10 of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression 'immovable property' comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be 'immovable property' for the purpose of Section 105, Transfer of Property Act. "

11. In light of above discussion, it can be easily construed that illegal extraction of mines and minerals would fall under the category of immoveable property, therefore, any illegal activity in respect of illegal mining would definitely fall under the above referred definition of Gang. As soon as minerals are moved from one place to other, it would also fall under offence of ''theft'.

12. There is a merit in argument of learned A.G.A 1st that in F.I.R. there was a specific allegation of creating panic and alarm in public as well as its impact on security of State also, which are ''anti social activities'. In addition to it, offence under Section 379 I.P.C. is also prima-facie made out against the applicants. All these offences will definitely fall under description of anti-social activities as mentioned in section Section 2 (b) (i) to 2 (b) (xxv) of the ''Act, 1986', and specifically under Section 2 (b) (iii), (xi) and (xxv) of ''Act, 1986'. Therefore, there is no ground for interference with charge-sheet filed against applicants.

13. Application is accordingly rejected.

Order Date :-2.3.2023

SB