Hashim Khan vs State of U.P. through Its Principal Secretary Home U.P. Lucknow & Another

Present application under Section 528 B.N.S.S. has been preferred for quashing the entire proceeding of Criminal Case No. 4551 of 2017 (State vs. Hashim Khan) arising out of Case Crime No. 119 of 2017, under Sections 379, 411 of I.P.C. and Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act, 1957"), and Section 3(2) of the Prevention of Damages to Public Property Act, 1984, P.S. Kadaura, District Jalaun, pending before the C.J.M., Jalaun at Orai.

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It is submitted by learned counsel for the applicant that applicant has been falsely implicated in the F.I.R. dated 29.6.2017, registered as Case Crime No. 119 of 2017, under Section 3(2)(a) of the Prevention of Damages to Public Property Act, 1984 and Section 21(4) of the Act, 1957 and Section 411, 379 of I.P.C. It is further submitted that the investigating officer wrongly and illegally submitted charge sheet in the present case and learned Magistrate took cognizance vide order dated 6.10.2017.

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It is further submitted on the basis of judgment passed by this Court as well as the Apex Court that the proceedings under the Act, 1957, cannot run on police case, inasmuch, cognizance order is barred by Section 22 of the Act, 1957, therefore, the present application deserves to be allowed and chargesheet dated 10.8.2017 as well as cognizance/summoning order dated 6.10.2017 be quashed.

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Learned A.G.A. opposed the prayer made in the application and submits that now the case is fixed for evidence for last seven years. It is further

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submitted that cognizance was taken by the learned Magistrate on 6.10.2017 and thereafter charge was framed on 28.4.2018, but both the orders were not challenged by the applicant at the proper stage and after eight years of the proceedings, the applicant is challenging the proceedings of court below. He further submitted that the applicant could have raised objection at the time of taking cognizance on 6.10.2017 or at the time of framing of charge on 28.4.2018, but no objection was made by the applicant.

¶19

I have heard submissions of both the parties and perused the record.

¶20

In the present matter F.I.R. was lodged on 29.6.2017 and the investigating officer after due investigation filed chargesheet on 10.8.2017 and in the meantime the applicant has obtained bail from the trial court on 13.7.2017. Learned Magistrate took cognizance on 6.10.2017 and summon was issued to the applicant on the same day and date 28.11.2017 was fixed by the learned trial court. On 28.11.2017, the applicant appeared before the trial court and thereafter several dates i.e. 2.1.2018, 7.2.2018, 8.3.2018 and 9.4.2018 were fixed, but due to one reason or another, the charge could not be framed and order of cognizance dated 6.10.2017 was not challenged by the applicant. Thereafter, learned trial court framed the charges in this case on 28.4.2018 and case was fixed for prosecution evidence. Even after framing of charge on 28.4.2018, more than 30 dates were fixed and some times the applicant did not appear in the trial court and summon was again issued for appearance of the applicant. On 5.8.2024, when the applicant did not appear before the trial court, bailable warrant was issued, however, he appeared in the trial court on 11.3.2025 and his bailable warrant was cancelled by the learned trial court.

¶21

The applicant at any point of time did not raise any objection before the trial court that proceedings against him is illegal and he cannot be prosecuted under the Act, 1957, in view of Section 22 of the said Act. After eight years, the present application has been filed under Section 528 of B.N.S.S. wherein he states that he cannot be prosecuted under the Act, 1957 and the proceedings against him be quashed. The latches have not been properly explained by the applicant and it is no where mentioned as to what prevented him in filing the application at the proper stage.

¶22

Considering the rival submissions of learned counsel for the parties and on perusal of record, two questions arise for consideration, which are as

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follows:-

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(i) Whether F.I.R. was lodged by authorised officer as per the Act, 1957 and

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(ii) Whether the cognizance taken by the learned Magistrate on the charge sheet filed for the offences under the Act, 1957 is barred by Section 22 of the Act, 1957.

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So far as the first question is concerned, as per Rules 76 of U.P. Minor and Minerals (Concessions) Rules, 2021 (hereinafter referred to as the "Rules, 2021"), District Officer (District Collector or Deputy Commissioner of the District) or any person authorised by him, can file complaint under Section 22 of Rules, 2021. For reference, Section 22 of the Act, 1957 as well as Rules 76 of Rules, 2021, are being quoted as below:

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"22. 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 authorised in this behalf by the Central Government or the State Government.

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76 (1) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the fact constituting such offence by the District Officer or by any officer authorised by him in this behalf.

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(2) No court inferior to that of a Magistrate of the First Class, shall try any offence under these rules."

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From the above quoted Act and Rules, it is clear that Court can take cognizance of any offence under the Act, 1957 or under Rules, 2021, only on the basis of complaint filed by authorised officer as mentioned in Rule 76 of Rules, 2021, but in the present case, F.I.R. has been lodged for which there is no requirement of authorised officer, therefore, contention of learned counsel for the applicant that the F.I.R. has been lodged by the person who is not auhorised by the Act, 1957, is misconceived.

¶33

So far as the second question is concerned, Section 22 of the Act, 1957 is very clear which provides that no Court shall take cognizance for the offence under the Act, 1957, unless the complaint is filed in writing by an officer authorised by Central Government or State Government, but in the present case, learned Magistrate has taken cognizance on the charge sheet filed by the police under the provision of the Act, 1957.

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In the case of Kanwar Pal Singh Vs. State of Uttar Pradesh and another reported in (2020) 14 SCC 331 , Hon'ble Apex Court observed that the Magistrate can take cognizance on the basis of charge sheet only for the offence under the Indian Penal Code, but the cognizance for the offence under the Act, 1957 can be taken only on the basis of complaint filed by authorised officer as per the provisions of Act, 1957. Paragraph 16 of this judgment is being quoted as under:

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"16. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the MMDR Act, 1957 will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have upheld the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs."

¶38

The Apex Court again in the judgment of Jayant and others Vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, 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 authorised officer along with that charge sheet for the offence under the Act, 1957. Paragraphs 21.3 and 21.4 of the above judgment are being quoted as under:

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"21.3. For commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder.

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21.4. That in respect of violation of various provisions of the MMDR Act

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and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the In-charge of the police station/investigating officer submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate."

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In view of the law laid down by the Hon'ble Apex Court, it is clear that for the offence under the Act, 1957, the learned Court concerned may take cognizance on the basis of complaint filed by authorized officer. In the present matter, the learned Magistrate had taken cognizance a long way back on 6.10.2017 on the chargesheet filed by the police under Section 4/21 of the Act, therefore, the cognizance order dated 6.10.2017 is barred by Section 22 of the Act, 1957, but it was not challenged at the proper state and the applicant cannot be permitted to raise these objections at such a belated stage when charge has already been framed on 28.4.2018 and the case is fixed for prosecution evidence.

¶45

Section 465 of Cr.P.C. deals with irregularities of the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial. For kind reference, Section 465 Cr.P.C. reads as follows:

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"465. Finding or sentence when reversible by reason of error, omission or irregularity.?(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; 2) In determining whether any error, omission or

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irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.? (emphasis supplied)

¶50

The Hon'ble Supreme Court in the case of Pradeep S. Wodeyar vs. State of Karnataka, (2021) 19 SCC 62 , has dealt with Section 465 of Cr.P.C. In this judgment it is stated that an irregular proceedings at a belated stage may not be challenged, if it is not challenged earlier. The relevant paragraph of the judgment of Pradeep (Supra) is quoted as under:

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"49.5.The delay in the commencement of trial?The first information report was registered on 9-10-2014 in the first of the batch of cases in the present set of cases. The charge-sheet was submitted on 29-12-2015. Between December 2015 and March 2017, the accused participated in the proceedings. On 30-12-2015, the Special Judge recorded that he had perused the final report and that he was taking cognizance. Summons were directed to be issued to the accused. After cognizance was taken on 30-12-2015, several proceedings took place before the 23rd Additional City Civil and Sessions Judge/Special Judge, Bengaluru City including on 16-1-2016 when some of the accused were admitted to bail. On 17-32017, arguments were addressed before the Special Judge by the Special Public Prosecutor on the charges. The High Court was moved for quashing under Section 482CrPC on 20-3-2017 at that stage. Significantly in the proceedings before the High Court, no ground of challenge was addressed on the basis of the submission (now urged before this Court) that in the absence of a committal order by the Magistrate, the proceedings before the Special Judge suffered for want of jurisdiction. The submission which has been urged before this Court for the first time, purportedly on the ground that a pure question of law is involved, cannot efface the factual position that from the date of the submission of the charge-sheet in 2015 until the filing of the quashing petition on 20-3-2017, the accused participated in the proceedings before the Special Judge and raised no objection at any time either before the Special Judge or before the High Court. Therefore, the challenge to the irregularity in taking cognizance was not made at the earliest. Though it was made before the conclusion of the trial, the challenge after two years would still amount to a considerable delay, when there were opportunities for it to have been raised earlier.

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108.2. The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465CrPC is applicable to

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interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465CrPC.

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108.3. The decision in Gangula Ashok [Gangula Ashok v. State of A.P., (2000) 2 SCC 504 : 2000 SCC (Cri) 488] was distinguished in Rattiram [Rattiram v. State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2)CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2)CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others.

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108.4. In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated.

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108.5. It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no ?failure of justice? under Section 465CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465CrPC."

¶59

In the present matter, the proceedings of trial have been challenged at a belated stage and latches have not been explained properly. The applicant was participating in the case and he was regularly appearing before the trial court, therefore, this Court is not inclined to interfere in the present matter and the proceedings of the Case No. 4551 of 2017 (State vs. Hashim Khan) arising out of Case Crime No. 119 of 2017, under Sections 379, 411 of I.P.C. and Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 3(2) of the Prevention of Damages to Public Property Act, 1984, P.S. Kadaura, District Jalaun, pending before the C.J.M., Jalaun

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at Orai, cannot be quashed at such a belated stage. The present application is liable to be dismissed.

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Accordingly, the Application U/S 528 of B.N.S.S. is dismissed.

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No order as to cost.

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However, the Trial Court is directed to conclude the trial as expeditiously as possible, preferably within a period of six months from the date of production of a copy of this order and no unnecessary adjournment would be granted to any party.At the time of final argument before the learned trial court, the applicant may raise objection that proceeding under the Act, 1957, is barred in view of Section 22 of the Act, 1957, and that objection will be dealt with by the learned trial court in its final argument.

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Registrar (Compliance) is directed to send a copy of this order to the Court concerned for necessary compliance.

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November 14, 2025 A.P. Pandey

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(Vivek Kumar Singh,J.)

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Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad

Hashim Khan v. State of U.P. through Its Principal Secretary Home U.P. Lucknow & Another

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Hashim Khan v. State of U.P. through Its Principal Secretary Home U.P. Lucknow & Another

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