Jharkhand High Court
Dharmjay Upadhyay vs The State Of Jharkhand on 13 November, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:33916)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3245 of 2025
Dharmjay Upadhyay, aged about 38 years, son of Sumer Upadhyay,
resident of Ward No. 10, Village-Kundi, P.O.-Ranka, P.S.-Garhwa,
Dist.-Garhwa (Jharkhand)
.... Petitioner
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Rakesh Kumar, Advocate
For the State : Mr. Shailendra Kr. Tiwari, Spl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 528 of Bharatiya Nagarik
Suraksha Sanhita, 2023 with the prayer to quash the entire
criminal proceeding including the order taking cognizance dated
02.01.2025 passed by the learned Chief Judicial Magistrate,
Garhwa in connection with Garhwa (Town) P.S. Case No. 391 of
2024, corresponding to G.R. Case No. 06 of 2025 whereby and
where under, the learned Chief Judicial Magistrate, Garhwa has
taken cognizance of the offence punishable under Sections 317(5)
of B.N.S., 2023, Rule 4/54 of Jharkhand Minor Mineral Concession
Rules, 2004 and Section 21 of Mines and Minerals (Development
and Regulation) Act, 1957.
(2025:JHHC:33916)
3. The allegation against the petitioner is that the petitioner
assisted in concealment of the stolen sand which was recovered
from the land in joint ownership of the petitioner with his agnates.
4. On the basis of the written report of the Circle Officer, Garhwa,
police registered Garhwa (Town) P.S. Case No. 391 of 2024 and
took up investigation of the case. After completion of
investigation, police submitted charge sheet against the petitioner
for having committed the said offences and basing upon the same,
the learned Chief Judicial Magistrate, Garhwa has taken
cognizance of the said offences.
5. Learned counsel for the petitioner relied upon the judgment of
this Court in the case of Manish Kumar Shah @ Manish Kumar
Sah vs. The State of Jharkhand reported in 2024:JHHC:17754 and
submits that this Court in that case took note of the judgment of
the Hon'ble Supreme Court of India in the case of Jayant and
Others Vs. State of Madhya Pradesh, reported in (2021) 2 SCC
670, para -21.2 of which reads as under:-
"21.2. The bar under Section 22 of the MMDR Act shall
be attracted only when the learned Magistrate takes
cognizance of the offences under the MMDR Act and the
Rules made thereunder and orders issuance of
process/summons for the offences under the MMDR Act
and the Rules made thereunder."
as also the Judgment of Hon'ble Supreme Court of India in the
case of State (NCT of Delhi) Vs. Sanjay and allied cases,
reported in (2014) 9 SCC 772, para -70 of which reads as under:-
"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
(2025:JHHC:33916)
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."
6. It is next submitted by the learned counsel for the petitioner that
since Section 22 of Mines and Minerals (Development and
Regulation) Act, 1957 envisages that cognizance of any offence
punishable under the said Act or any Rules made thereunder can
only be taken by the court if and only if, a complaint in writing is
made by a person authorized in this behalf by the Central
Government or the State Government but as in this case, the FIR
has been lodged by the Circle Officer, Garhwa, so the learned
Chief Judicial Magistrate, Garhwa has committed illegality by
taking cognizance of the offences under the provision of the said
Act. It is further submitted by the learned counsel for the
petitioner that the allegations against the petitioner are all false.
Hence it is submitted that the prayer as prayed for in this criminal
miscellaneous petition be allowed.
7. Learned Spl. P.P. on the other hand opposes the prayer and
submits that since Section 22 of the Mines and Minerals
(2025:JHHC:33916)
(Development and Regulation) Act starts without any non obstante
clause, so the original jurisdiction of the Magistrate under Section
190 (1) (d) of the Code of Criminal Procedure has not been
affected and the Magistrate can take cognizance of the offences
also. Hence, it is submitted that this criminal miscellaneous
petition being without any merit be dismissed.
8. Having heard the submissions made at the Bar and after going
through the materials in the record, in view of the principle of law
settled both in the case of Jayant and Others Vs. State of Madhya
Pradesh and State (NCT of Delhi) Vs. Sanjay (supra), as already
referred to above in the foregoing paragraphs of the Judgment,
this Court has no hesitation in holding that the law is well settled
that cognizance of the offences punishable under the penal
provisions of the Mines and Minerals (Development and
Regulation) Act or any Rules made thereunder, can only be taken
by a court competent to take cognizance of such offence, only
upon complaint in writing by a person authorized by the Central
Government or the State Government. In para -72 of the Judgment
of Hon'ble Supreme Court of India in the case of State (NCT of
Delhi) Vs. Sanjay (supra), the Hon'ble Supreme Court has
clarified that the said Section 22 of Mines and Minerals
(Development and Regulation) Act will not debar the State Police
in registering cases for the offences punishable under Section 379
of the Indian Penal Code or any other offence which is punishable
under the penal provision of law other than the penal provisions
(2025:JHHC:33916)
as mentioned in Mines and Mineral (Development and
Regulation) Act or any Rules made thereunder; and the
Magistrate can take cognizance of such offences; in exercise of the
jurisdiction vested upon the Magistrates under section 191 (1) (d)
of the Code of Criminal Procedure.
9. Now coming to the facts of the case, undisputedly the
cognizance has been taken by the learned Magistrate for the
offences punishable under the Mines and Minerals (Development
and Regulation) Act and the Rules made thereunder without a
complaint in writing being made by the person authorized in this
behalf by the Central Government or the State Government
directly to the Magistrate concerned; upon lodging of the F.I.R
with the police on receipt of the report under section 173 of the
Code of Criminal Procedure, the learned Chief Judicial
Magistrate, Garhwa has committed gross illegality by taking
cognizance of the offences punishable under the penal provisions
of the Mines and Minerals (Development and Regulation) Act and
the Rules made thereunder.
10. Accordingly, the order taking cognizance dated 02.01.2025
passed by the learned Chief Judicial Magistrate, Garhwa in
connection with Garhwa (Town) P.S. Case No. 391 of 2024,
corresponding to G.R. No. 06 of 2025 in respect of the offences
punishable under the Section Rule 4/54 of Jharkhand Minor
Mineral Concession Rules, 2004 and Section 21 of Mines and
Minerals (Development and Regulation) Act, 1957 is quashed and
(2025:JHHC:33916)
set aside but it is made clear that as there is direct and specific
allegation against the petitioner for having committed the offence
punishable under Section 317(5) of B.N.S., hence, the same is
maintained.
11. It is further made clear that the quashing of the offences for
which cognizance was taken by the learned court below in respect
of the said offences punishable under the Mines and Minerals
(Development and Regulation) Act or the Rules made thereunder
will not debar the learned trial court to frame charges for any
other offences punishable under any other penal provisions of law
other than the penal provisions as mentioned in the Mines and
Minerals (Development and Regulation) Act and the Rules made
thereunder at the appropriate stage of the case, if material in this
respect is available in the record.
12. In the result, this criminal miscellaneous petition is allowed to
the aforesaid extent only.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 13th November, 2025
AFR/Sonu-Gunjan/-
Uploaded on 17/11/2025
