Ajay Kumar vs State Of U.P. And Anr
2024 Latest Caselaw 17010 ALL

Allahabad High Court

Ajay Kumar vs State Of U.P. And Anr on 14 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:87183
 
Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 11544 of 2019
 

 
Applicant :- Ajay Kumar
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Pavan Kishore,Anand Kumar,Rakesh Prasad Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Sri Vikas Kumar, learned counsel for the applicant and Sri P.S. Jadaun, learned A.G.A. for the State.

2. The present 482 Cr.P.C. application has been filed for quashing of Charge Sheet No.172 of 2016 dated 27.11.2016 as well as cognizance order dated 13.12.2016 and entire proceedings of consequent case being Case No.9230 of 2016 (State Vs. Ajay Kumar) arising out of Case Crime No.1039 of 2016, under Section 4/21 of of The Mines and Minerals (Development and Regulation) Act, 1957, Police Station Kotwali Chunar, District Mirzapur, pending in the court of C.J.M., Mirzapur.

3. Learned counsel for the applicant has submitted that an F.I.R. dated 04.09.2016 was lodged against the applicant under Section 4/21 of The Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the "Act, 1957") as well as Section 3/4 Prevention of Damage to Public Property Act, 1984. The police after investigation, had submitted charge sheet under Section 4/21 of the Act, 1957 and the learned Magistrate has taken cognizance on 13.12.2016 treating as State case. It is further submitted that though as per Section 22 of the Act, 1957, the court cannot take cognizance for any offence punishable under the Act, 1957 except upon the complaint in writing by the authorised person. It is further submitted that the authorized person under the Act, 1957 is District Officer Mining or any person authorised by him, but in the present case, the F.I.R. was lodged by Supervisor, Mining Department even otherwise, the cognizance cannot be taken on the basis of charge sheet submitted by the police unless the complaint is filed by the authorised person and at the most as per Section 2 (d) of Cr.P.C. police report if filed by the authorised person can be treated as complaint. In support of his contention, learned counsel for the applicant has relied upon the judgment of Division Bench of this Court passed in Criminal Misc. Writ Petition No.14971 of 2014, in which F.I.R. lodged under the Act, 1957 was quashed with liberty to file complaint under Section 22 of the Act, 1957. Learned counsel for the applicant further relied upon the judgment of Co-ordinate Bench of this Court passed in Imran and other Vs. State of U.P. and another in Application U/S 482 No.16700 of 2019 as well as judgment of Ram Bahal Vs. State of U.P. and another in Application U/S 482 No.19576 of 2020. In both the cases, the Court observed that cognizance on the basis of police report (charge sheet) is barred by Section 22 of the Act, 1957 and charge sheet or police report can be filed along with complaint by the concerned officer for initiating the proceeding under the Act, 1957.

4. Considering the rival submissions of learned counsel for the parties and on perusal of record, two questions arise for consideration, which are as follows:-

(i) Whether F.I.R. was lodged by authorised officer as per the Act, 1957 and

(ii) Whether the cognizance taken by the learned Magistrate on the charge sheet filed for the offences under the Act, 1957 is barred by Section 22 of the Act, 1957.

5. So far as the first question is concerned, as per Rules 76 of U.P. Minor and Minerals (Concessions) Rules, 2021 (hereinafter referred to as the "Rules, 2021"), District Officer (District Collector or Deputy Commissioner of the District) or any person authorised by him, can file complaint under Section 22 of Rules, 2021. For reference, Section 22 of the Act, 1957 as well as Rules 76 of Rules, 2021, are being quoted as below:-

"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.

76 (1) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the fact constituting such offence by the District Officer or by any officer authorised by him in this behalf.

(2) No court inferior to that of a Magistrate of the First Class, shall try any offence under these rules."

6. From the above quoted Act and Rules, it is clear that Court can take cognizance of any offence under the Act, 1957 or under Rules, 2021, only on the basis of complaint filed by authorised officer as mentioned in Rule 76 of Rules, 2021, but in the present case, F.I.R. has been lodged for which there is no requirement of authorised officer, therefore, contention of learned counsel for the applicant that the F.I.R. has been lodged by the person who is not auhorised by the Act, 1957, is misconceived.

7. So far as the second question is concerned, Section 22 of the Act, 1957 is very clear which provides that no Court shall take cognizance for the offence under the Act, 1957, unless the complaint is filed in writing by an officer authorised by Central Government or State Government, but in the present case, learned Magistrate has taken cognizance on the charge sheet filed by the police under the provision of the Act, 1957.

8. In the case of Kanwar Pal Singh Vs. State of Uttar Pradesh and another reported in (2020) 14 SCC 331, Hon'ble Apex Court observed that the Magistrate can take cognizance on the basis of charge sheet only for the offence under the Indian Penal Code, but the cognizance for the offence under the Act, 1957 can be taken only on the basis of complaint filed by authorised officer as per the provisions of Act, 1957. Paragraph 16 of this judgment is being quoted as under:-

"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 379 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 MMDR Act, 1957 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."

9. The Apex Court again in the judgment of Jayant and others Vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, observed that even if the charge sheet is filed by the police after the investigation then for the offence under the Indian Penal Code learned Magistrate can take cognizance but for the offence under the Act, 1957, learned Magistrate cannot take cognizance on the basis of that charge sheet and it is further observed that the Magistrate can take cognizance only when the complaint is filed by the authorised officer along with that charge sheet for the offence under the Act, 1957. Paragraphs 21.3 and 21.4 of the above judgment are being quoted as under:-

"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 In-charge/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 In-charge of the police station/investigating officer submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned 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."

10. In view of the above legal position, it is clear that for the offence under the Act, 1957, the concerned court can take cognizance only on the basis of complaint filed by authorised officer but in the present case learned Magistrate had taken cognizance on the charge sheet filed by the police under Section 4/21 of the Act, 1957, therefore, the cognizance order dated 13.12.2016 is barred by Section 22 of the Act, 1957, therefore, deserves to be set aside. Accordingly, set aside and consequential proceeding in pursuance of the above cognizance order dated 13.12.2016 is also quashed.

11. However it is open, if the authorised officer files a complaint along with police report submitted by Investigating Officer, then it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the offence under the Act, 1957.

12. With the aforesaid observation, the present application is allowed.

Order Date :- 14.5.2024

Atul