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2023 DIGILAW 1714 (ALL)

Ikrar Khan v. State of U. P.

2023-07-17

SANJAY KUMAR SINGH

body2023
JUDGMENT Sanjay Kumar Singh, J. Heard learned counsel for the applicant, 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 applicant to quash the charge-sheet dated 24.11.2019 arising out of Case Crime No. 353 of 2019, cognizance order dated 30.09.2020 and proceedings of Case No. 4362 of 2020 (State v. Ikrar Khan and another), under Sections 379, 411 I.P.C., Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules, 1963 and Sections 4/21 Mines and Minerals (Development and Regulation) Act 1957 Police Station Sarai Akil, District Kaushambi pending in the court of Chief Judicial Magistrate, Kaushambi. 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 order dated 30.09.2020, cognizance has been taken against the applicants under Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules, Sections 4/21 Mines and Minerals (Development and Regulation) Act and Sections 379, 411 I.P.C. 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 and Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules 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, Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules 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 and Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules on the police report. 5. 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 and Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules. 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 379, 411 IPC is concerned, it cannot said to be illegal and without authority but so far as cognizance taken for the offence under Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules and Sections 4/21 Mines and Minerals (Development and Regulation) Act on the impugned charge-sheet dated 24.11.2019 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. 4362 of 2020 with regard to offence under Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules and 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 as well as Sections 3/57 of The Uttar Pradesh Minor Minerals (Concession) Rules. 10. 10. It is made clear that so far as order taking cognizance with Section 379, 411 IPC 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 24.11.2019. 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.