HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 49
Case :- APPLICATION U/S 482 No. – 33371 of 2017
Applicant :- Dinesh Kumar Yadav
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Mahendra Pratap Yadav
Counsel for Opposite Party :- G.A.
Hon’ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the records.
The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the Charge-Sheet No.49 of 2014 dated 03.7.2014, submitted by the police in Case No.455 of 2016 arising out of Case Crime No.980 of 2014, State Vs. Dinesh Yadav, under Sections 379, 411 I.P.C. & 4/21 Mines and Minerals (Development and Regulation) Act, 1957 P.S. Kalwari, District-Basti as well as the entire proceedings of aforesaid case, pending in the Court of Additional Chief Judicial Magistrate III, Basti.
Learned counsel for the applicant has contended that in this case the Investigating Officer has wrongly submitted charge-sheet against the applicant under Sections 379,411 I.P.C. & 4/21 Mines and Minerals (Development and Regulation) Act, 1957, (hereinafter called as Act, 1957) as it is clearly barred by Section 22 of the Act, 1957 and Rule 74 (1) of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. The learned Magistrate too, without any application of mind, took cognizance on the charge sheet ignoring the aforesaid legal provisions. Hence, the charge-sheet and the cognizance order both are liable to be quashed by this Court.
Attention of this Court has been drawn towards the aforesaid legal provisions.
Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957, provides that “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 authorized in this behalf by the Central Government or the State Government”.
Rule 74 (1) of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 also provides that “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 any by any Officer authorised by him in this behalf”
Learned A.G.A. has opposed the application.
I do not find any force in the contentions raised by the learned counsel for the applicant.
The charge-sheet in this case has been submitted under Sections 379, 411 I.P.C. and Section 4/21 of the Act, 1957.
Recently, Hon’ble Apex Court while dealing with a matter under Mines and Mineral (Development and Regulation) Act 1957 vis-a-vis the provisions of Indian Penal Code has considered the issue at great length. Apex Court, in the case of State of NCT New Delhi vs. Sanjay, Criminal Appeal No.499 of 2011, decided on 4.9.2014, while deciding the bunch matter, has precisely taken the view, that the prohibition contained in Section 22 of the Act against prosecution of a person except on complaint made by the officer is attracted only when such a person is sought to be prosecuted for contravention of provision of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. Relevant extract of the said judgment is as follows:
“Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence.
Sub-section (1A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the rules made thereunder. In other words no person will do mining activity without a valid lease or license. Section 21 is a penal provision according to which if a person contravenes the provisions of Sub-section (1A) of Section 4 shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure 1973.
Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf.
It is very important to note that Section 21 does not begin with a non-obstante clause. Instead of the words
“notwithstanding anything contained in any law for the time being in force no court shall take cognizance…..”, the Section begins with the words “no court shall take cognizance of any offence.”
Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.
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 activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized 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 authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist 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 sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.
However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is laible to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State’s possession without the consent, constitute an offence of theft.
Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure.
After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-Ã-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly.”
In view of the above, the prayer for quashing the charge-sheet as well as the entire proceedings of the aforesaid case is refused.
At this juncture learned counsel for the applicant prayed that the applicant is ready to surrender before the court and to move bail application but he may be granted a time of 30 days for surrender and the court below be directed to consider his bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2005 CriLj 755 and affirmed by Hon’ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC, 437.
Learned A.G.A. has no objection against the aforesaid prayer.
As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the applicant surrenders before it within 30 days from today and applies for bail it will decide his bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2005 CriLj 755 and affirmed by Hon’ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC, 437.
For a period of 30 days from today, which shall not be extended any further, no coercive action shall be taken against the applicant, in the above mentioned case.
With the aforesaid directions, this application is finally disposed of. Order Date:-16.11.2017-SB