M/S Gayatri Stone Workers Through ... vs State Of U.P. And Another
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Allahabad High Court

M/S Gayatri Stone Workers Through ... vs State Of U.P. And Another on 7 July, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on 27.05.2025
 
Delivered on 07.07.2025
 
Neutral Citation No. - 2025:AHC:105656
 
Court No. - 77
 

 
Case :- APPLICATION U/S 528 BNSS No. - 13872 of 2025
 

 
Applicant :- M/S Gayatri Stone Workers Through Proprietor Mr Amit Sinha Alias Ashu Srivastava
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Abhishek Kumar Pandey,Kumar Shivam,Yash Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Srivastava,J.
 

1. Heard learned counsel for the parties.

Prayer

2. Present application has been preferred with prayer to quash/set aside the impugned cognizance and summoning order dated 24.03.2025 passed by Chief Judicial Magistrate, Sonbhadra upon the impugned charge-sheet dated 24.01.2025, arising out Case Crime no. 0653 of 2024, under sections 61(2)(a), 318(4), 319(2), 336(3), 338, 340(2), 303(2), 317(2) of BNS and section 3 of Prevention of Damage to Public Property Act, 1984, PS- Robertsganj, District- Sonbhadra, in which trial court has summoned the applicant to face trial in illegal and arbitrary manner. Further prayer has also been prayed to stay the criminal proceeding of Case no. 3528 of 2025 (State vs. Umakant Yadav and others), arising out of Case Crime no. 0653 of 2024.

Facts

3. It is submitted by learned counsel for applicant that opposite party no. 2/Manoj Kumar, Mines Inspector, Sonbhadra lodged FIR against driver of an alleged vehicle namely Umakant Yadav, Santosh Kumar owner of crusher plant Kailash Stone Seva Sansthan and applicant with allegation that on 19.09.2024, one truck bearing no. UP65/DT3991 was intercepted which was driven by Umakant Yadav and on enquiry, it was revealed that the Gitty (Ballast) was loaded by one Santosh Kumar of Kailash Seva Sansthan crusher plant and Form-C was handed over by the co-accused Rakesh Pathak, which was said to be need in the name of M/s Gayatri Stone Works through proprietor Mr. Amit Sinha (applicant) and further on verification from the Government App, the Form - C paper was found to be forged and fabricated which was alleged to be given by applicant. Alleged truck was seized and given in custody of Police Station Robertsganj, Sonbhadra. Rest of the story would be evident from the perusal of FIR appended as Annexure no. 2 to the affidavit. After completion of investigation, charge sheet has been submitted against applicant and six other co-accused persons whereupon cognizance has been taken up vide order dated 24.03.2025 which has been challenged through instant application.

Arguments raised on behalf of applicant

4. It is submitted by learned counsel for applicant that name of applicant has been endorsed by the police officials in FIR only on the basis of confessional statement of co-accused namely Umakant Yadav (driver of seized vehicle) and the said confessional statement has no evidentiary value as such in the eye of law. Alleged forged and fabricated permit letter was not found from possession of applicant or from premises of applicant.

5. Prima facie to make out an offence, ingredients need to be fulfilled as follows:

Essential ingredient of Section 318 BNS (section 420 IPC) are-

(a) the accused must have dishonestly induced the victim.

(b) the deception or inducement led the victim to deliver property or consent to retain property.

Essential ingredients of Sections 338, 336, 340(2) of BNS (section 467, 468 and 471 IPC) are-

(a) the making of false document or electronic record.

(b) the document must have been made with an intent to deceive or defraud someone, causing them to belive it is genuine.

(c) the accused must have known or have reason to believe that the document is forged.

Essential ingredients for Section 303(2), 317 of BNS (section 379 and 411 IPC) are-

(a) the accused must have an intention to take the property dishonestly i.e. movable property.

(b) the property must be taken out of the possession of another person without their consent.

(c) the accused must have received the property with the intention of causing wrongful gain to oneself or wrongful loss to another.

Essential ingredients for Section 61(2) of BNS (section 120-B IPC) are-

(a) there must be an agreement either explicit or implied between two or more individuals.

(b) the agreement must be to commit an illegal act or a legal act by an illegal means.

6. The essential ingredients required to fulfil the said offences as alleged does not made out at all. The impugned charge-sheet dated 25.01.2025 does not disclose the appreciation of particular material on record and cognizance order is a non-speaking order. While taking cognizance, learned court below has to justify the reasons as on what basis learned trial court has taken cognizance and summoned the applicant.

7. Section 3 of Damage to Public Property Act, 1984 cannot be invoked against the applicant in person as the role assigned to the applicant is of post-man only and there is no such allegation against the applicant as he has caused damage to any public property.

8. As per the provision of Section 25 of Indian Evidence Act, 1872 and Section 23 of Bhartiya Nyay Sanhita, 2023, confessional statement of co-accused made before the police officials is having no evidentiary value in the eye of law and as such in present case also, applicant name has been nominated on basis of confessional statement of one of the co-accused only and therefore, the present case if false and frivolous.

9. Special law provides that complaint need to be filled by the authority concerned i.e. authorized person then the lodging of FIR and investigation thereupon is categorically barred. In case of clash between special law and general law, special law always prevails and the special law i.e. law relating to Mines and Minerals Act, provides that complaint case need to be filed in respect of any act done in contravention of said act. Initially, when the FIR has been challenged by the applicant before Division Bench of this Court, in Crl. Misc. Writ Petition no. 18567 of 2024 (Amit Sinha @ Ashu Srivastava vs. State of U.P. and 2 others), vide order dated 18.10.2024, arrest of applicant has been stayed.

Legal Precedents relied by learned counsel for applicant

10. In case of Jeevan Kumar Raut and another vs. Central Bureau of Investigation reported in 2009 (7) SCC 526, Hon'ble Apex Court laid down following ratio:

(a) The Hon'ble Apex Court has taken categorical view that the police report is inconsequential and the FIR for the offence under the provisions of the Special Act cannot be entertained, if any such information is received in writing, it is the duty of the police officer to report it to the appropriate authority, under the Act only, who can investigate the matter and file a complaint on conclusion of the investigation.

(b) The Hon'ble Apex Court is of the opinion that wherever the Special law provides that the complaints can be lodged or the prosecution can be initiated only by the specified persons under such special law, the police officer are debarred from registering the FIR and investigating the matter as in almost all the special laws the power to investigate under the Special Acts has been given to the specified officers.

11. In case of Ashok Kumar Sharma vs. State of U.P. and others reported in (2018) 105 ACC 194, co-ordinate Bench of this Court held as under:

(a) While dealing with the provisions of Special Act, where the bar is provided in terms of particular section of said Act then, no proceedings can be initiated except on complaint of authorised officer for offence under the said act.

12. In case of Dr. Brij Pal Singh vs. State of U.P. and another in Application u/s 482 no. 6753 of 2019, co-ordinate Bench of this Court after relying upon the judgment of Hon'ble Apex Court in Jeevan Kumar (supra) and Ashok Kumar Sharma (supra) observed that wherever the special law provides that the complaints can be lodged or the prosecution can be initiated only by the specified persons under special law, the police officers are debarred from registering the FIR and investigating the matter as in almost all the special laws.

13. In case of Jitendra vs. State of U.P. in Application u/s 482 no. 7662 of 2023, co-ordinate Bench of this Court held the following ratio:

(a) The object and idea of enacting the Prevention of Damage to Public Property Act, 1984 is to curb an act of vandalism and damage to public property including destruction and damage caused during riots and public commotion.

(b) the Act of 1984 only applies to situations where public property is damaged or destroyed during riots or public demonstrations.

14. In case of Munshi Lal and another vs. State of U.P. and another in Application u/s 482 no. 9964 of 2020, co-ordinate Bench of this Court held that the area under the Act, 1984 is thus confined to destruction or damage to the public property within the meaning of Section 2(b) of the Act, during the course of riots or public demonstrations.

15. In case of Seema Sarkar vs. State, reported in 1994 0 Supreme (Cal) 368; Hon'ble Calcutta High Court held as follows:

(a) the cognizance is one and it cannot be divided. Splitting of cognizance is not permissible under the law.

(b) If it is assumed that there is an ingredient in respect to IPC offences then also the order of taking cognizance is bad because cognizance is one and it cannot be made a split. It is found that taking cognizance of offence is bad, the other part of offence for which cognizance has been taken cannot be sustained in law.

Arguments raised on behalf of State and opposite party no. 2.

16. Learned Additional Government Advocate vehemently opposed the prayer as made in the petition and rebutted the stand taken up by learned counsel for the applicant and as per the instructions received, learned AGA further submitted that after conduction of the detailed inquiry, concerned Investigating Officer submitted charge-sheet which is strictly based upon the evidence and the offence carried out by the Firm which is owned by Mr. Amit Sinha alias Ashu Srivastava being the proprietor.

Observation and conclusion

17. After hearing the rival submissions extended by learned counsel for the parties and perusing the records, this Court finds that although FIR has been preferred under certain sections of Mines and Minerals Act but at the time of preferring charge-sheet, there is hardly any implication of the applicant under Mines and Minerals Act and as such there is hardly any infirmity in the same. Rest of the grounds raised through instant application are subject matter of trial and cannot be conclusively determined in proceeding u/s 528 BNSS.

18. Applicant being proprietor to M/s Gayatri Stone Workers is hereby directed to appear before concerned court within three weeks from today. Till three weeks from today, no coercive action shall be initiated against the applicant.

19. The instant application u/s 528 BNSS stands disposed of.

Order Date :- 7.7.2025

Shaswat

(Saurabh Srivastava,J.)