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2023 DIGILAW 1582 (ALL)

Phool Chandra v. State of U. P.

2023-07-04

SANJAY KUMAR SINGH

body2023
JUDGMENT Sanjay Kumar Singh, J. Heard learned counsel for the applicants, learned Additional Government Advocate for the State of U.P./opposite party no.1 and perused the record. 2. This application under Section 482 Cr.P.C. has been filed by the applicants to quash the charge-sheet dated 01.04.2018 arising out of Case Crime No. 23 of 2018, cognizance/summoning order dated 25.08.2018 and proceedings of Case No. 5978 of 2018, under Section 4/21 of Mines and Minerals Act, 1957 and Section 3 of The Prevention of Damage to Public Property Act, Police Station Ahraura, District Mirzapur, pending in the court of Chief Judicial Magistrate, Mirzapur. 3. The issue involved in the matter lies in a very narrow compass. The main substratum of argument of learned counsel for the applicant is that vide impugned cognizance/summoning order dated 25.08.2018, the applicant has been summoned under Section 3 of The Prevention of Damage to Public Property Act and Sections 4/21 Mines and Minerals (Development and Regulation) Act to face trial, whereas the Magistrate concerned was not empowered to take cognizance on the police report for the alleged offence under Sections 4/21 Mines and Minerals (Development and Regulation) Act because with regard to it, there is a procedure for filing complaint. 4. Per contra, learned Additional Government Advocate for the state opposed the said submission of learned counsel for the applicant by contending that if the act of accused makes out a cognizable offence under IPC as well as an offence under Section 21 of the MMDR Act 1957, registration of F.I.R. under both the enactments is not illegal as there is no bar to investigate the matter by the police when cognizable offence has taken place irrespective of penal provisions whether under the special enactment or general law, but does not dispute that in view of section 22 of the Mines And Minerals (Development And Regulation) Act, the applicant cannot be prosecuted under Sections 4/21 Mines and Minerals (Development and Regulation) Act on the police report. 5. Having heard learned counsel for the parties, I find that pure legal question is involved in the matter therefore no useful purpose would be served in keeping this application pending before this Court and the same is being disposed of with the consent of the counsel for the parties at the admission stage itself. 6. 5. Having heard learned counsel for the parties, I find that pure legal question is involved in the matter therefore no useful purpose would be served in keeping this application pending before this Court and the same is being disposed of with the consent of the counsel for the parties at the admission stage itself. 6. Having examined the matter in its entirety, this Court is of the view that when there is a conflict between a special and general law, indisputably the special enactment shall prevail over the general law, therefore, on account of categorical bar under Section 22 of the MMDR Act 1957, the police officer cannot submit police report under Section 173 Cr.PC with regard to offence under Mines and Minerals (Development and Regulation) Act. 7. The issue in this regard has been settled by the Apex Court in the matter of [State (NCT) of Delhi v. Sanjay], (2014) 9 SCC 772 as well as by this Court in the case of Imran and others v. State of U.P. and another, (2020) 3 All LJ 21. 8. In the light of law laid down in the aforesaid judgments, this Court is of the opinion that so far as cognizance taken by the Magistrate concerned on impugned charge-sheet for the offence under Section 3 of The Prevention of Damage to Public Property Act is concerned, it cannot said to be illegal and without authority but so far as cognizance taken for the offence under Sections 4/21 Mines and Minerals (Development and Regulation) Act on the impugned charge-sheet dated 01.04.2018 is concerned, the same is not liable to be sustained in the eyes of law on account of categorical bar contained in section 22 of the Mines And Minerals (Development And Regulation) Act. 9. Accordingly, further proceeding of Case No. 5978 of 2018 (State v. Phool Chandra and others) with regard to offence under Sections 4/21 Mines and Minerals (Development and Regulation) Act is concerned, the same is hereby quashed with liberty to the prosecution/Officer concerned to file complaint against the applicant under the Mines and Minerals (Development and Regulation) Act, 1957. 10. 9. Accordingly, further proceeding of Case No. 5978 of 2018 (State v. Phool Chandra and others) with regard to offence under Sections 4/21 Mines and Minerals (Development and Regulation) Act is concerned, the same is hereby quashed with liberty to the prosecution/Officer concerned to file complaint against the applicant under the Mines and Minerals (Development and Regulation) Act, 1957. 10. It is made clear that so far as order taking cognizance with Section 3 of The Prevention of Damage to Public Property Act is concerned, that has not been interfered by this Court and the concerned Court below is at liberty to proceed in accordance with law against the applicant pursuant to the charge-sheet dated 01.04.2018. 11. With the aforesaid observations and directions, this application under Section 482 Cr.P.C. is partly allowed. 12. Office is directed to communicate the copy of this order to the Concerned Court below within two weeks.