Subhash Chandra and 2 Others vs State of Up and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 3210 of 2025

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Subhash Chandra And 2 Others

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.....Applicant(s)

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Versus

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State of U.P. and Another	.....Opposite Party(s)
Counsel for Applicant(s)	: Krishna Kant Shukla
Counsel for Opposite Party(s)	: G.A.
Court No.- 77

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HON'BLE SAURABH SRIVASTAVA, J.

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Heard Sri Krishna Kant Shukla, learned counsel for applicants and learned AGA for the State.

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Present application has been preferred with the prayer to quash the entire proceeding of Case no. 7618 of 2022 (State vs. Subhash Chandra) arising out of Case no. 0198 of 2020 under Sections 379, 411 IPC, 3/5 Prevention of Damages to Public Property Act 1984, 4/21 Mines & Mineral (Development & Regulation) Act, 1957, 3/57/7 of Uttar Pradesh Minor Minerals (Concession) Rule 1963, in respect of Summoning order dated 10.06.2022 as well as charge sheet no. 12 of 2021 dated 18.01.2021 pending before learned Chief Judicial Magistrate 1st, Police Station Padri, District Mirzapur.

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Learned counsel for applicant submitted that FIR has been lodged by opposite party no. 2 namely Ashish Kumar Dwivedi, Mines Inspector, Mirzapur against the applicants for the offence under sections under Sections 379, 411 IPC, 3/5 Prevention of Damages to Public Property Act 1984, 4/21 Mines & Mineral (Development & Regulation) Act, 1957, 3/57/7 of Uttar Pradesh Minor Minerals (Concession) Rule 1963. After concluding the investigation, concerned Investigating Officer submitted impugned charge sheet dated 18.1.2021 Sections 379, 411 IPC, 3/5 Prevention of Damages to Public Property Act 1984, 4/21 Mines & Mineral (Development & Regulation) Act, 1957, 3/57/7 of Uttar Pradesh Minor Minerals (Concession) Rule 1963, whereupon learned Chief Judicial Magistrate concerned took cognizance vide impugned order dated 10.06.2022 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under Section 4/21 of the Act of 1957.

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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 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

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A482 No. 3210 of 2025

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2

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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.

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After hearing the rival submissions extended by learned counsels for the parties and perusing the 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 charge sheet the cognizance has been taken up by learned concerned court only in pursuance to Section 4/21 of Mines and Minerals Act, 1957 on dated 10.06.2022 itself and by bare perusal of the cognizance order dated 10.06.2022, it is crystal clear that there is hardly any section of IPC/BNSS in which cognizance has been taken up by learned court concerned and as such the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra).

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Since the instant matter has been argued by learned counsel appearing for applicant only on the basis of legal issues, especially relying upon the judgment of Hon'ble Apex Court, there is no occasion available with the prosecution to continue and pursue the matter arising out of Case Crime no. 393/2016 and the impugned cognizance order dated 10.06.2022 is hereby quashed and consequential proceeding in pursuance to the above cognizance order dated 10.06.2022 is also quashed.

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The instant petition stands 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 applicants, if required in pursuance to procedure available at law.

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September 11, 2025 Rakesh

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(Saurabh Srivastava,J.)

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Digitally signed by :- RAKESH SINGH High Court of Judicature at Allahabad

Subhash Chandra and 2 Others v. State of Up and Another

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Subhash Chandra and 2 Others v. State of Up and Another

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