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2021 DIGILAW 1136 (ALL)

Pradeep Singh v. State of U. P.

2021-09-28

YOGENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : [Yogendra Kumar Srivastava, J.] 1. Heard Sri Rajesh Kumar Mall, learned counsel for the applicant and Sri Pankaj Saxena, learned Additional Government Advocate-I for the State-Opposite party. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (The Code) has been filed seeking to quash the entire proceedings as well as the Cognizance Order dated 5.9.2019 passed by the Additional Chief Judicial Magistrate, Court No. 5, Prayagraj in Case No. 1841 of 2019 (State v. Bhawarjeet Singh and others), arising out of Case Crime No. 367/2018, under Section 379 Indian Penal Code, 1860 (Penal Code) and Section 4 and 21 Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act), Police Station Sankargarh, District Prayagraj. 3. It is pointed out that proceedings in the present case were initiated pursuant to an FIR dated 25.11.2018 lodged under Section 379, 411 of the Penal Code and Section 4, 21 of the MMDR Act and a police report under Section 173(2) of the Code dated 24.12.2018 was filed whereupon cognizance was taken by the learned Magistrate on 5.9.2019 and the applicant has been summoned. 4. It is submitted that in so far as the offences referable to Sections 4, 21 of the MMDR Act are concerned, the procedure prescribed under Section 22 of the Act having not been followed, the Magistrate could not have taken cognizance in respect of the said offence. 5. In support of his submission reliance has been placed on a decision of this Court dated 20.9.2021 rendered in Ram Bahal v. State of U.P. and another, 2021(9) ADJ 566 . In particular, the following paragraphs of the judgment have been referred to : ''43. The legal position, as emanating from the aforesaid discussion, may be summarized as follows : 43.1 The prohibition applying the rule against double jeopardy would be attracted in a situation where the same act constitutes an offence under more than one enactment. However, if the two offences are distinct and different with different ingredients, under two different enactments, the rule against double jeopardy would not be applicable. However, if the two offences are distinct and different with different ingredients, under two different enactments, the rule against double jeopardy would not be applicable. 43.7 The investigation of offences being within the domain of the police, the power of a police officer to investigate into a cognizable offence would ordinarily not be impinged by any fetter and Courts would interfere only where it is found that the investigatory powers have been exercised in breach of the statutory provisions putting the personal liberty and/or the property of the citizen in jeopardy. The procedural law is designed to further the ends of justice and should not be allowed to be frustrated on mere technicalities and any defect or illegality in exercise of investigatory powers would have no direct bearing on the competence or the procedure relating to taking of cognizance or the trial. 44. It would therefore be seen that the bar under Section 22 of the Act shall not be attracted at the stage of lodging of an FIR or registration of the criminal case. The bar under the section shall get attracted only at the stage when the Magistrate takes cognizance of the offence and orders issuance of process/summons for the offence under the MMDR Act and the Rules made thereunder. On receipt of the police report, insofar as it relates to commission of offence under the Penal Code, the Magistrate having jurisdiction can take cognizance of the offence and proceed further. However, in respect of offences under the MMDR Act upon submission of the police report the same would be required to be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act whereupon the concerned authorised officer may file a complaint before the Magistrate alongwith the report submitted by the investigating officer and thereafter it would be open for the 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 the Rules made thereunder and at that stage it can be said that cognizance has been taken by the Magistrate in respect of an offence under the MMDR Act. 45. 45. In the case at hand, the offence under Section 4, 21 of the MMDR Act read with Rules 3, 57, 70 of the Concession Rules which relate to illegal mining, and the offence under Section 379, 411 IPC which would relate to theft, cannot be said to be one and the same. The two offences being distinct and under separate enactments with ingredients also being distinct the principle based on the rule against double jeopardy would not be attracted. 46. The offence under Section 379 IPC, which is with regard to theft of minerals, being undisputedly a cognizable offence, the act of the police in registering a case, investigating the same and placing a police report under Section 173 of the Code, cannot be said to be unlawful. The concerned Magistrate is also well within his jurisdiction in taking cognizance as per the provisions under the Code. 47. The contention sought to be raised on behalf of the applicant that the facts as disclosed in the FIR would constitute a mere violation of Section 4 of the MMDR Act which would be an offence cognizable only under Section 21 of the MMDR Act and not under any other law therefore stands rejected. The FIR version having disclosed an offence under Section 379 of the Penal Code and a police report having also been submitted pursuant thereto, there is no bar on the jurisdictional Magistrate from taking cognizance of the offence under the Penal Code. The contravention of the provisions under Section 4 of the MMDR Act also constituting a cognizable offence, the police were within their rights in investigating the same, there being no bar under the MMDR Act with regard to the same. 48. The initiation of the proceedings by lodging of an FIR under relevant provisions of the MMDR Act and the Rules made thereunder and also the provisions of the Penal Code therefore cannot be said to be hit by the bar under Section 22 of the MMDR Act. The investigation of the case and the submission of the police report under Section 173 also cannot be said to be barred by the provisions under the MMDR Act. 49. The investigation of the case and the submission of the police report under Section 173 also cannot be said to be barred by the provisions under the MMDR Act. 49. Insofar as the offences under the MMDR Act are concerned, at the stage of submission of the police report, it was for the concerned authorized officer as specified under Section 22 of the MMDR Act to have filed a complaint before the Magistrate alongwith the police report whereupon the Magistrate could have taken cognizance after following due procedure and issued process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder.'' 6. Learned Additional Government Advocate-I does not dispute the aforesaid legal position. He also does not dispute that in respect of the offences under the MMDR Act the procedure under Section 22, with regard to filing of a complaint before the jurisdictional magistrate, has not been followed. 7. Learned Additional Government Advocate-I, however, points out that in so far as the proceedings relating to offences under the Penal Code are concerned, in respect of which cognizance has been taken by the learned Magistrate and process/summons have been issued, the bar under the MMDR Act would not operate and there is no illegality in the proceedings in so far as the offences under the Penal Code are concerned. 8. Learned counsel appearing for the applicant has fairly submitted that he is pressing his application only in respect of the proceedings relating to the offences under the MMDR Act and not in respect of those under the Penal Code. 9. Having regard to the aforestated facts and circumstances and following the decision in the case of Ram Bahal v. State of U.P. and another (supra) and the legal propositions summarized therein, the proceedings, insofar as they relate to the offences under the Penal Code in respect of which cognizance has been taken by the Magistrate and process/summons have been issued, cannot be faulted with and the challenge raised in regard to the same cannot be sustained and is accordingly rejected. 10. However, insofar as the offences under the MMDR Act are concerned, the procedure under Section 22 having not been followed and in the absence of a complaint by the authorized officer, the cognizance taken by the Magistrate cannot be legally sustained and the proceedings in this regard are set aside and quashed. 10. However, insofar as the offences under the MMDR Act are concerned, the procedure under Section 22 having not been followed and in the absence of a complaint by the authorized officer, the cognizance taken by the Magistrate cannot be legally sustained and the proceedings in this regard are set aside and quashed. It would be open to the authorized officer to initiate proceedings in this regard as per the procedure under Section 22 of the MMDR Act and to lodge a complaint before the concerned Magistrate alongwith report submitted by the investigating officer whereupon the Magistrate concerned may take cognizance after following due procedure and issue process/summons. 11. The application under Section 482 Cr.P.C. stands partly allowed to the extent indicated above.