Sushil Kumar Dwivedi Vs State of U.P. and 2 Others

Neutral Citation No. - 2025:AHC:55834

Court No. - 74

Case :- APPLICATION U/S 482 No. - 30431 of 2024

Applicant :- Sushil Kumar Dwivedi Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Arvind Kumar Singh,Rakesh Bhushan Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Srivastava,J.

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Heard learned counsel for applicant and learned A.G.A. for the State.

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The instant application has been preferred with the prayer to quash the impugned charge-sheet dated 09.10.2018, cognizance/summoning order dated 25.04.2019 as well as the entire proceedings of Case No.1775 of 2019 (State vs. Sushil Kumar Dwivedi) arising out of Case Crime No.489 of 2018, under sections 447, 448, 504 I.P.C. and sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957"), PS- Kotwali Orai, DistrictJalaun, pending before learned Chief Judicial Magistrate, Jalaun at Orai along with bailable warrant dated 07.02.2023.

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Learned counsel for applicant submitted that the FIR has been lodged by opposite party no.2, namely, Ramesh Chandra Sharma, Secretary of Sahkari Kray-Vikray Samiti, Orai against the applicant for the offence under sections 447, 448, 504 I.P.C. and sections 4/21 of the Mines and Minerals Act, 1957. After concluding the investigation, concerned Investigating Officer submitted impugned charge-sheet dated 09.10.2018 under Section 4/21 of the Act of 1957 and sections 447, 448, 504 I.P.C., whereupon learned Magistrate concerned took cognizance vide impugned order dated 25.04.2019 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under Section 4/21 of the Act of 1957 and sections 447, 448, 504 I.P.C. against the applicant.

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Learned counsel for applicant challenged the entire proceeding on the ground that admittedly the Act of 1957 is special act and Section 22 of the said Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no

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court shall take cognizance except upon complaint made in writing by a person authorized in this behalf by Central Government or State Government. For substantiating his argument, learned counsel for applicant relied upon judgment rendered by Hon'ble Apex Court in case of Jayant and Others vs. State of Madhya Pradesh, reported in (2021) 2 SCC 670 , wherein it has been observed that even if the charge-sheet is filed by the police after the investigation then for the offence under the Indian Penal Code, learned Magistrate can take cognizance, but for the offence under the Act, 1957, learned Magistrate cannot take cognizance on the basis of that charge-sheet and it is further observed that the Magistrate can take cognizance only when the complaint is filed by the authorized officer along with that charge-sheet for the offence under the Act, 1957. He also relied upon judgment rendered by co-ordinate Bench of this Court passed on dated 14.05.2024 in Application u/s 482 no. 11544 of 2019 (Ajay Kumar vs. State of U.P. and Anr.) .

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Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and rebutted the stand taken up by learned counsel for applicant, but at the same time could not dispute the explanation made by learned counsel for applicant with regard to provision of the Act of 1957.

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After hearing the rival submissions extended by learned counsels for the parties and by bare perusal of records, it transpires that in pursuance to judgment rendered by Hon'ble Apex Court in case of Jayant and others (supra) as well as by this Court in Ajay Kumar (supra) , since it is apparent that over the chargesheet the cognizance has been taken up by learned concerned court in pursuance to Section 4/21 of Mines and Minerals Act, 1957 and sections 447, 448, 504 I.P.C. on dated 25.04.2019 itself and by bare perusal of the cognizance order dated 25.04.2019, it is crystal clear that the cognizance taken up by learned court concerned only in pursuance to sections of IPC/BNSS is permissible and in pursuance to sections of the Act of 1957, the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra) .

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In view of the aforementioned facts and circumstances of the case, the proceedings in shape of Case No.1775 of 2019 (State vs. Sushil Kumar Dwivedi) arising out of Case Crime No.489 of 2018, PS- Kotwali Orai, District- Jalaun initiated against the applicant in pursuance to sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 is hereby quashed and set-aside . As far as proceedings initiated against the applicant in

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pursuance to sections 447, 448, 504 I.P.C. is concerned, learned trial court is hereby directed to proceed as per law.

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The instant application stands partly allowed accordingly.

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However, it is made clear that above mentioned direction will not preclude the authorities concerned to proceed afresh against the applicant, if required in pursuance to procedure available at law.

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Order Date :- 16.4.2025 Saif

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Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Sushil Kumar Dwivedi v. State of U.P. and 2 Others

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