Partly allowed

Hasna and 2 Others v. State of U.P. and Another

Allahabad HC5 Jan 2021A482/16342/2020

Case brief

AI extract

What is this about?

This case quashed proceedings under specific sections of the MMDR Act where cognizance was illegally taken on a police report. The charge sheet and proceedings under relevant IPC sections were refused quashal as no offense was disclosed against them that would warrant dismissal at this stage.

What did the court decide?

Charge sheet and proceedings under the Mines and Minerals Act quashed with liberty to file a complaint by the prosecution; prayer to quash proceedings under IPC sections refused.

Hasna and 2 Others Vs State of U.P. and Another — Mining and Natural Resources | Allahabad HC (2021)

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Court No. - 78

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Case :- APPLICATION U/S 482 No. - 16342 of 2020

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Applicant :- Hasna And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Anil Kumar-IX,J.

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Heard learned counsel for the applicant, learned AGA for the State and perused the record.

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This application u/s 482 Cr.P.C. has been filed with the prayer to quash the charge sheet No.02 of 2017 dated 14.04.2018 along with cognizance order dated 24.12.2018 and entire proceedings of Case No.1200 of 2019 arising out of Case Crime No.461 of 2017 (State of U.P. Vs. Sarwar @ Babar and others), under Sections 147, 148, 149, 336, 353, 307, 379 IPC and 4/21 Mines and Minerals (Development & Regulation) Act, Police StationBehat, District- Saharanpur pending before the Court of A.C.J.M. 3rd, Saharanpur.

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Brief facts of the case are that on 04.10.2017, FIR was lodged by police as Case Crime No.461 of 2017 at Police StationBehat, District- Saharanpur against the five named and 60-70 unknown persons alleging therein that accused persons were doing illegal mining. They pelted stone and opened fire on the police personnel. On firing by the accused persons, the police has also fired in their self-defense. After investigation charge sheet was submitted by the I.O. against the applicants and other co-accused persons under Section 147, 148, 149, 336, 353, 307, 379 IPC and 4/21 Mines and Minerals (Development and Regulation) Act (hereinafter referred as MMDR Act).

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Learned counsel for the applicants submitted that applicants have been falsely implicated in this case. No offence under Sections 147, 148, 149, 336, 353, 307, 379 IPC and MMDR Act is disclosed against the applicants. Charge sheet against them has been submitted on the basis of insufficient evidence. Learned counsel for the applicants further submits that despite specific bar under Section 22 Mines and Minerals (Development and Regulation) Act, the Magistrate concerned has taken cognizance of offence under MMDR Act on police

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report. This cognizance order is illegal and without application of judicial mind.

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Learned AGA opposed the prayer and contended that at this stage, it cannot be said that no offence levelled against the applicants is made out. Disputed defense has not to be considered by this Court under Section 482 Cr.P.C. He further submits that there is no bar in taking cognizance on police report for the offence under Indian Penal Code. Learned AGA has relied on judgement dated 10.07.2019 passed by this Court in Application U/S 482 No.16700 of 2019 (Imran and three others Vs. State of U.P. and another)

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So far as the contention of learned counsel for the applicants that no offence under Sections 147, 148, 149, 336, 353, 307, 379 IPC and MMDR Act is made out against the applicants is concerned, at this stage, it cannot be said that offences levelled against the applicants are not made out. Disputed question of fact cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Cr.) 426 .

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So far as specific bar of Section 22 Mines and Minerals (Development and Regulation) Act, 1957 is concerned Section 22 of the said Act Provides-:

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" Cognizance of offences - Cognizance of offences. 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. "

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According to the above provision, cognizance of offence under MMDR Act cannot be taken on police report. Learned Magistrate has taken cognizance of offence Mines and Minerals (Development and Regulation) Act on police report, which is not legal and has been passed without application of judicial mind.

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So far as cognizance of offence under Sections 147, 148, 149, 336, 353, 307, 379 IPC is concerned, it cannot be said that cognizance is illegal.

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On the basis of above discussion and observations made by this Court in Imran and 3 others Vs. State of U.P. and another

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(supra). So far as offence only under Section 4/21 MMDR Act is concerned, impugned charge sheet and proceedings arising out of Case Crime No.461 of 2017 is hereby quashed against the applicants with liberty to prosecution/officer concerned to file complaint against the applicants under the provisions of MMDR Act.

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So far as charge sheet, cognizance and entire proceedings under Sections 147, 148, 149, 336, 353, 307, 379 IPC against the applicants are concerned, prayer to quash is refused.

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With above observation, this application u/s 482 Cr.P.C. is hereby partly allowed.

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Order Date :- 5.1.2021 Ashutosh Pandey

Hasna and 2 Others v. State of U.P. and Another

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Hasna and 2 Others v. State of U.P. and Another

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