Allahabad High Court
Shailendra Mishra @ Shailendra Kumar ... vs State Of U.P Through Its Principal ... on 5 May, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:70987
Court No. - 74
Case :- APPLICATION U/S 528 BNSS No. - 12072 of 2025
Applicant :- Shailendra Mishra @ Shailendra Kumar Mishra
Opposite Party :- State Of U.P Through Its Principal Secretary (Home) And 2 Others
Counsel for Applicant :- Pawan Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Srivastava,J.
1. Heard learned counsel for applicant and learned A.G.A. for the State.
2. The instant application under section 528 BNSS has been preferred with the prayer to quash the impugned charge-sheet bearing no.01 dispatched as 76/19 dated 12.06.2019, cognizance order dated 31.07.2019 and the entire proceedings of Case No.1762 of 2019 (State vs. Shankar Lal and Others) arising out of Case Crime No.80 of 2019, under section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021, P.S.- Lalapur, District- Prayagraj, pending before learned Additional Chief Judicial Magistrate, Court No.5, Allahabad as well as to stay the further proceedings of aforementioned case.
3. Learned counsel for applicants submitted that the FIR has been lodged by opposite party no.3, namely, B.P. Yadav, Senior Mining Officer, Prayagraj against the applicant herein along with other named accused for the offence under section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021. After concluding the investigation, concerned Investigating Officer submitted impugned charge-sheet dated 12.06.2019 in purusance to section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021, whereupon learned Magistrate concerned took cognizance vide impugned order dated 31.07.2019 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021 against the applicant herein.
4. Learned counsel for applicant challenged the entire proceeding on the ground that admittedly the Act of 1957 is special act and Section 22 of the said Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no court shall take cognizance except upon complaint made in writing by a person authorized in this behalf by Central Government or State Government. For substantiating his argument, learned counsel for applicant relied upon judgment rendered by Hon'ble Apex Court in case of Jayant and Others vs. State of Madhya Pradesh, reported in (2021) 2 SCC 670, wherein it has been 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 along with the Rules, 2021, 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 authorized officer along with that charge-sheet for the offence under the Act, 1957 along with the Rules, 2021. He also relied upon judgment rendered by co-ordinate Bench of this Court passed on dated 14.05.2024 in Application u/s 482 no. 11544 of 2019 (Ajay Kumar vs. State of U.P. and Anr.).
5. So far as section 379 I.P.C. is concerned, learned counsel for applicant submitted that the alleged theft as mentioned in the F.I.R. whereupon the charge-sheet has been preferred, is related to mines and minerals only and if the proper procedure would have been adopted by concerned authorities in shape of preferring complaint and as such separately section 379 I.P.C. is not amenable in reference to the theft if committed by anyone or the applicant in pursuance to mines and minerals only.
6. Per contra, learned A.G.A. vehemently opposed the prayer sought through the instant application and rebutted the stand taken up by learned counsel for applicants, but at the same time could not dispute the explanation made by learned counsel for applicant.
7. After hearing the rival submissions extended by learned counsels for the parties and by bare perusal of records, it transpires that in pursuance to judgment rendered by Hon'ble Apex Court in case of Jayant and others (supra) as well as by this Court in Ajay Kumar (supra), since it is apparent that over the charge-sheet the cognizance has been taken up by learned concerned court in pursuance to section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021 on dated 04.01.2023 itself and by bare perusal of the cognizance order, it is crystal clear that the cognizance taken up by learned court concerned only in pursuance to sections of IPC/BNSS is permissible and in pursuance to sections of the Act of 1957 along with Rules of 2021, the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra).
8. In view of the aforementioned facts and circumstances of the case, the proceedings initiated against the applicants in shape of Case No.1762 of 2019 (State vs. Shankar Lal and Others) arising out of Case Crime No.80 of 2019, under section 379 I.P.C. and sections 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and sections 3, 57, 70 of U.P. Minor Minerals (Concession) Rules, 2021, P.S.- Lalapur, District- Prayagraj is hereby quashed and set-aside.
9. The instant application stands allowed accordingly.
10. However, it is made clear that above mentioned direction will not preclude the authorities concerned to proceed afresh against the applicant, if required in pursuance to procedure available at law.
Order Date :- 5.5.2025
Saif
