# Abdul Hayee & Ors v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Criminal Misc. Writ Petition No. 4675 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-hayee-ors-v-state-of-u-p-ors-50476
- **Pages:** 16

## Headnote

Criminal Law - Arms Act, 1959-Section 37-
police has proceeded on receiving information
about a wanted criminal -where a Special Act
provides for lodging of complaint for any offence
committed thereunder- and any offence under
I.P.C is also committed-the Police can register a
case- investigate and submit a report-FIR was
clearly maintainable and therefore, there is no
bar in arrest, search and seizure by the Police as
per Cr.P.C- as the provisions thereof are
nowhere in contradiction of the provisions of the
Arms Act and have been made applicable vide
Section 37 Arms Act to arrest and seizure made
under Arms Act.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,956 of 53,729. This is a partial read: ask again with offset=39956 for what follows._

394 INDIAN LAW REPORTS ALLAHABAD SERIES
nothing remains in the prosecution case,
therefore
the
appellant-accused
is
legitimately entitled to avail the benefit of
doubt. Hence, the impugned judgment and
order of conviction passed by learned Addl.
Sessions Judge, Court No.7, Gorakhpur
could not withstand the legal position and
requires to be reversed by acquitting the
accused from charges levelled against him.
Consequently, the appeal deserves to be
allowed by setting aside the impugned
judgment and order of conviction.

In view of that following order :-

(I) The appeal stands allowed.

(II) The judgment and order of
conviction dated 30.11.2016 passed by
learned Addl. Sessions Judge, Court No.7,
Gorakhpur stands quashed and set aside.

(III)
The
accused-appellant,
Rameshwar Lal Chauhan is acquitted of the
offence punishable under Section 302 of
IPC.

(IV) The accused be released
from jail forthwith, if not required in any
other offence.

(V) The amount of fine, if
deposited, be refunded to the accused.
----------
(2023) 6 ILRA 394
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 4675 of 2023

Abdul Hayee & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mushir Khan

Counsel for the Respondents:
G.A.

Criminal Law - Arms Act, 1959-Section 37-
police has proceeded on receiving information
about a wanted criminal -where a Special Act
provides for lodging of complaint for any offence
committed thereunder- and any offence under
I.P.C is also committed-the Police can register a
case- investigate and submit a report-FIR was
clearly maintainable and therefore, there is no
bar in arrest, search and seizure by the Police as
per Cr.P.C- as the provisions thereof are
nowhere in contradiction of the provisions of the
Arms Act and have been made applicable vide
Section 37 Arms Act to arrest and seizure made
under Arms Act.

W.P. dismissed. (E-9)

List of Cases cited:

1. U.O.I. Vs Ashok Kumar Sharma & ors., (2021)
12 SCC 674

2. Jayant & ors.Vs St. of M. P. (2021) 2 SCC 670

3. St. (NCT of Delhi) Vs Sanjay (2014) 9 SCC
772

4. St. of Haryana & ors.Vs Bhajan Lal & ors.,
1992 Supp. (1) SCC 335

5. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Mah., AIR 2021 SC 1918

6. Special Leave to Appeal (Crl.) No.3262/2021
(Leelavati Devi @ Leelawati & another Vs the St.
of Uttar Pradesh) decided on 07.10.2021

(Delivered by Hon'ble Vivek Kumar Birla,
J.
&
Hon'ble Surendra Singh-I, J.)

1. Heard Shri Mushir Khan, learned
counsel for the petitioners and Shri Manish
Goyal,
learned
Additional
Advocate
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
395
General assisted by Shri A.K. Sand, learned
A.G.A.-I appearing on behalf of the State.

2. During the course of argument Shri
A.K. Sand, learned A.G.A.-I submits that
during investigation Section 216 I.P.C. has
been added.

3. Learned counsel for the petitioners
submits that he may be permitted to amend
the prayer clause. He may do so during the
course of the day.

4. This writ petition has been filed for
quashing the impugned First Information
Report dated 04.03.2023 in Case Crime No.
42 of 2023, under Sections 3/4/25 Arms
Act, Section 4/5 of Explosive Substances
Act 1908 and Section 216 I.P.C., Police
Station Sarai Akil, District Kaushambi and
for a direction to the respondent authorities
not to arrest the petitioners in pursuance of
the impugned first information report.

5. The submission of the learned
counsel for the petitioners is that no offence
has been made out against the petitioners.
None of the petitioners herein were found
or arrested on the spot and one Abdul Kawi
has already surrendered before the C.B.I.
Court. It is submitted that as per the first
information
report
some
arms
and
ammunition were found in the premises
which were seized by the Police and the
first information report was lodged under
the provisions of Sections 3/4/25 Arms Act
and Section 4/5 of Explosive Substances
Act 1908. It is submitted that the provisions
of Section 22 of the Arms Act have not
been complied with at the time of making
search and seizure and therefore, it cannot
be said that any offence has been made out
against the petitioners. On facts it is
submitted that one of the co-accused was
attending his service and other arguments
on the merit of the case regarding Will
dated 05.10.2020 by which Abdul Kawi
was disowned by his father with all ties
broken and that he was living separately.
Other factual arguments have also been
made in defence. It is submitted that the
procedure for the seizure has not been
adopted and the walls of the premises were
damaged by JCB.

6. Learned counsel for the petitioners
further submitted that since the offence in
the present case under Section 25 Arms Act
is punishable with two years imprisonment,
as per Part II of the First Schedule of the
Criminal Procedure Code, it is a noncognizable offence and only a complaint
can be lodged in it and lodging of the first
information report is not maintainable. It
was also submitted that in respect of the
offences under the Arms Act only a
complaint could have been filed and
therefore, the first information report could
not have been registered and is not
maintainable. It is also submitted that the
petitioners are not absconder. They were
also not harbouring any offender, therefore,
offence under Section 216 I.P.C. is not
made out. Submission, therefore, is that the
impugned FIR is liable to be quashed.

7. Per contra, Shri Manish Goyal,
learned
Additional
Advocate
General
assisted by Shri A.K. Sand, learned
A.G.A.-I submits that it is on the
information while patrolling that one
wanted criminal, namely, Abdul Kawi, who
carries reward of Rs. one lac is hiding in
his village, the Police had gone to his
village in his search but as his house was
very much inside the village, the accused
wanted in Case Crime No. 34 of 2005,
under Sections 147, 148, 149, 307, 302,
120-B, 506 I.P.C. and Section 7 Criminal
Law Amendment Act, Police Station
396 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhoomanganj,
District
Prayagraj
and
C.B.I. R.C. No. 02/S/2016 case no. 20432
of 2022, under Sections 147, 148, 149, 307,
302, 120-B I.P.C. and Section 27 Arms Act
as well as present accused have absconded
and illegal Arms and ammunition were
found
in
the
premises.
Submission,
therefore, is that due procedure was
adopted by the Police Authorities in this
search and seizure and there was no
illegality in search and seizure which was
made as per the provisions of the Arms Act
read with the provisions of Cr.P.C. It was
further submitted that the present FIR is in
respect of commission of offences under
Section 3/4 as punishable under Section 25
of the Arms Act including the offences
under Section 4/5 of the Explosive
Substances Act 1908 and Section 216
I.P.C.
Shri
Manish
Goyal,
learned
Additional
Advocate
General
further
submitted that once a first information
report can be lodged in respect of certain
offences, the other offences in regard
whereof
ordinarily
complaint
is
maintainable, can also be included in such
first information report. He, therefore,
submits that a bare reading of the first
information report clearly reflects that a
cognizable offence has been committed and
no interference is warranted.

8. We have considered the rival
submissions and perused the record.

9. Needless to say that Code of
Criminal
Procedure,
1973
extensively
provides power for arrest, search and seizure
covering all the circumstances as may be
visualized including powers to do so even
without warrant. Chapter V, VI, VII and XII
are broadly relevant in this regard. Before
proceeding further, it would be relevant to
take note of provisions of the Arms Act and
Cr.P.C. relevant in the present case.

10. Section 20, 22, 37 and 38 of the
Arms Act are quoted as under:

"20. Arrest of persons conveying
arms,
etc.,
under
suspicious
circumstances.-Where any person is found
carrying
or
conveying
any
arms
or
ammunition whether covered by a licence or
not, in such manner or under such
circumstances as to afford just grounds of
suspicion that the same are or is being carried
by him with intent to use them, or that the
same may be used, for any unlawful purpose,
any magistrate, any police officer or any
other public servant or any person employed
or working upon a railway, aircraft, vessel,
vehicle or any other means of conveyance,
may arrest him without warrant and seize
from him such arms or ammunition.

22.
Search and
seizure
by
magistrate.- (1) Whenever any magistrate
has reason to believe-

(a) that any person residing within
the local limits of his jurisdiction has in his
possession any arms or ammunition for any
unlawful purpose, or

(b) that such person cannot be left
in the possession of any arms or ammunition
without danger to the public peace or safety,

the magistrate may, after having
recorded the reasons for his belief, cause a
search to be made of the house or premises
occupied by such person or in which the
magistrate has reason to believe that such
arms or ammunition are or is to be found
and may have such arms or ammunition, if
any, seized and detain the same in safe
custody for such period as he thinks
necessary, although that person may be
entitled by virtue of this Act or any other
law for the time being in force to have the
same in his possession.

(2) Every search under this
section shall be conducted by or in the
presence of a magistrate or by or in the
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
397
presence
of
some
officer
specially
empowered in this behalf by the Central
Government.

37. Arrest and searches.-Save
as otherwise provided in this Act,-

(a) all arrests and searches made
under this Act or under any rules made
thereunder
shall
be
carried
out
in
accordance with the provisions of the
[Code of Criminal Procedure, 1973 (2 of
1974)], relating respectively to arrests and
searches made under that Code;

(b) any person arrested and any
arms or ammunition seized under this Act
by a person not being a magistrate or a
police officer shall be delivered without
delay to the officer in charge of the nearest
police station and that officer shall-

(i) either release that person on
his executing a bond with or without
sureties to appear before a magistrate and
keep the things seized in his custody till the
appearance of that person before the
magistrate, or

(ii) should that person fail to
execute the bond and to furnish, if so
required, sufficient sureties, produce that
person and those things without delay
before the magistrate.

38. Offences to be cognizable.-
Every offence under this Act shall be
cognizable within the meaning of the [Code
of Criminal Procedure, 1973 (2 of 1974)]."

11. Sections 4, 5, 41, 47, 48, 94, 97,
100, 102 and 165 Cr.P.C. are quoted below.
These
provisions
also
include
the
provisions relied on by learned counsel for
the petitioners.

"4. Trial of offences under the
Indian Penal Code and other laws.-

(1) All offences under the Indian
Penal Code (45 of 1860 ) shall be
investigated, inquired into, tried, and
otherwise dealt with according to the
provisions hereinafter contained.

(2) All offences under any other
law shall be investigated, inquired into,
tried, and otherwise dealt with according to
the same provisions, but subject to any
enactment for the time being in force
regulating
the
manner
or
place
of
investigating, inquiring into, trying or
otherwise dealing with such offences.

5. Saving.- Nothing contained in
this Code shall, in the absence of a specific
provision to the contrary, affect any special
or local law for the time being in force, or
any special jurisdiction or power conferred,
or
any
special
form
of
procedure
prescribed, by any other law for the time
being in force.

41. When police may arrest
without warrant.-

(1) Any police officer may
without an order from a Magistrate and
without a warrant, arrest any person-

(a) who commits, in the presence
of a police officer, a cognizable offence;

(b) against whom a reasonable
complaint has been made, or credible
information has been received, or a
reasonable suspicion exists that he has
committed a cognizable offence punishable
with imprisonment for a term which may
be less than seven years or which may
extend to seven years whether with or
without fine, if the following conditions are
satisfied, namely,:-

(i) the police officer has reason to
believe on the basis of such complaint,
information, or suspicion that such person
has committed the said offence;

(ii) the police officer is satisfied
that such arrest is necessary-

(a) to prevent such person from
committing any further offence;or

(b) for proper investigation of the
offence; or
398 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) to prevent such person from
causing the evidence of the offence to
disappear or tampering with such evidence
in any manner; or

(d) to prevent such person from
making any inducement, threat or promise
to any person acquainted with the facts of
the case so as to dissuade him from
disclosing such facts to the Court or to the
police officer; or

(e) as unless such person is
arrested,
his
presence
in
the
Court
whenever required cannot be ensured,

and the police officer shall record
while making such arrest, his reasons in
writing:

[Provided that a police officer
shall, in all cases where the arrest of a person
is not required under the provisions of this
sub-section, record the reasons in writing for
not making the arrest.]

(ba)
against
whom
credible
information has been received that he has
committed a cognizable offence punishable
with imprisonment for a term which may
extend to more than seven years whether with
or without fine or with death sentence and the
police officer has reason to believe on the
basis of that information that such person has
committed the said offence;

(c) who has been proclaimed as an
offender either under this Code or by order of
the State Government; or

(d) in whose possession anything is
found which may reasonably be suspected to
be stolen property and who may reasonably
be suspected of having committed an offence
with reference to such thing; or

(e) who obstructs a police officer
while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful
custody;or

(f) who is reasonably suspected
of being a deserter from any of the Armed
Forces of the Union; or

(g) who has been concerned in, or
against whom a reasonable complaint has
been made, or credible information has
been received, or a reasonable suspicion
exists, of his having been concerned in, any
act committed at any place out of India
which, if committed in India, would have
been punishable as an offence, and for
which he is, under any law relating to
extradition, or otherwise, liable to be
apprehended or detained in custody in
India; or

(h) who, being a released convict,
commits a breach of any rule made under
sub-section (5) of section 356; or

(i)
for
whose
arrest
any
requisition, whether written or oral, has
been received from another police officer,
provided that the requisition specifies the
person to be arrested and the offence or
other cause for which the arrest is to be
made and it appears therefrom that the
person might lawfully be arrested without a
warrant by the officer who issued the
requisition.

(2) Subject to the provisions of
section 42, no person concerned in a noncognizable offence or against whom a
complaint has been made or credible
information
has
been
received
or
reasonable suspicion exists of his having so
concerned, shall be arrested except under a
warrant or order of a Magistrate.

47. Search of place entered by
person sought to be arrested.-

(1) If any person acting under a
warrant of arrest, or any police officer
having authority to arrest, has reason to
believe that the person to be arrested has
entered into, or is within, any place, any
person residing in, or being in charge of,
such place shall, on demand of such person
acting as aforesaid or such police officer,
allow him free ingress thereto, and afford
all reasonable facilities for a search therein.
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
399

(2) If ingress to such place cannot
be obtained under subsection (1), it shall be
lawful in any case for a person acting under
a warrant and in any case in which a
warrant may issue, but cannot be obtained
without affording the person to be arrested
an opportunity of escape, for a police
officer to enter such place and search
therein, and in order to effect an entrance
into such place, to break open any outer or
inner door or window of any house or
place, whether that of the person to be
arrested or of any other person, if after
notification of his authority and purpose,
and demand of admittance duly made, he
cannot otherwise obtain admittance:

Provided that, if any such place is
an apartment in the actual occupancy of a
female (not being the person to be arrested)
who, according to custom, does not appear
in public, such person or police officer
shall, before entering such apartment, give
notice to such female that she is at liberty
to withdraw and shall afford her every
reasonable facility for withdrawing, and
may then break open the apartment and
enter it.

(3) Any police officer or other
person authorised to make an arrest may
break open any outer or inner door or
window of any house or place in order to
liberate himself or any other person who,
having lawfully entered for the purpose of
making an arrest, is detained therein.

48. Pursuit of offenders into
other jurisdictions.- A police officer may,
for the purpose of arresting without warrant
any person whom he is authorised to arrest,
pursue such person into any place in India.

94. - Search of place suspected
to
contain
stolen
property,
forged
documents, etc. - (1) If a District
Magistrate, Sub-divisional Magistrate or
Magistrate
of
the
first
class,
upon
information and after such inquiry as he
thinks necessary, has reason to believe that
any place is used for the deposit or sale of
stolen property, or for the deposit, sale or
production of any objectionable article to
which this section applies, or that any such
objectionable article is deposited in any
place, he may by warrant authorise any
police officer above the rank of a
constable-

(a) to enter, with such assistance
as may be required, such place,

(b) to search the same in the
manner specified in the warrant,

(c) to take possession of any
property or article therein found which he
reasonably suspects to be stolen property or
objectionable article to which this section
applies,

(d) to convey such property or
article before a Magistrate, or to guard the
same on the spot until the offender is taken
before a Magistrate, or otherwise to dispose
of it in some place of safely,

(e) to take into custody and carry
before a Magistrate every person found in
such place who appears to have been privy
to the deposit, sale or production of any
such property or article knowing or having
reasonable cause to suspect it to be stolen
property
or,
as
the
case
may
be,
objectionable article to which this section
applies.

(2) The objectionable articles to
which this section applies are-

(a) counterfeit coin;

(b) pieces of metal made in
contravention of the Metal Tokens Act,
1889 (1 of 1889), or brought into India in
contravention of any notification for the
time being in force under section 11 of the
Customs Act, 1962 (52 of 1962);

(c) counterfeit currency note;
counterfeit stamps;

(d) forged documents;

(e) false seals;
400 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) obscene objects referred to in
section 292 of the Indian Penal Code (45 of
1860);

(g) instruments or materials used
for the production of any of the articles
mentioned in clauses (a) to (f).

97.
Search
for
persons
wrongfully confined.- If any District
Magistrate, Sub- divisional Magistrate or
Magistrate of the first class has reason to
believe that any person is confined under
such circumstances that the confinement
amounts to an offence, he may issue a
search- warrant, and the person to whom
such warrant is directed may search for the
person so confined; and such search shall
be made in accordance therewith, and the
person, if found, shall be immediately
taken before a Magistrate, who shall make
such order as in the circumstances of the
case seems proper.

100. Persons in charge of closed
place to allow search.-(1) Whenever any
place liable to search or inspection under
this Chapter is closed, any person residing
in, or being in charge of, such place, shall,
on demand of the officer or other person
executing the warrant, and on production of
the warrant, allow him free ingress thereto,
and afford all reasonable facilities for a
search therein.

(2) If ingress into such place
cannot be so obtained, the officer or other
person executing the warrant may proceed
in the manner provided by sub- section (2)
of section 47.

(3) Where any person in or about
such place is reasonably suspected of
concealing about his person any article for
which search should be made, such person
may be searched and if such person is a
woman, the search shall be made by
another woman with strict regard to
decency.

(4) Before making a search under
this Chapter, the officer or other person
about to make it shall call upon two or
more
independent
and
respectable
inhabitants of the locality in which the
place to be searched is situate or of any
other locality if no such inhabitant of the
said locality is available or is willing to be
a witness to the search, to attend and
witness the search and may issue an order
in writing to them or any of them so to do.

(5) The search shall be made in
their presence, and a list of all things seized
in the course of such search and of the
places in which they are respectively found
shall be prepared by such officer or other
person and signed by such witnesses; but
no person witnessing a search under this
section shall be required to attend the Court
as a witness of the search unless specially
summoned by it.

(6) The occupant of the place
searched, or some person in his behalf,
shall, in every instance, be permitted to
attend during the search. and a copy of the
list prepared under this section, signed by
the said witnesses, shall be delivered to
such occupant or person.

(7) When any person is searched
under sub- section (3), a list of all things
taken possession of shall be prepared, and a
copy thereof shall be delivered to such
person.

(8) Any person who, without
reasonable cause, refuses or neglects to
attend and witness a search under this
section, when called upon to do so by an
order in writing delivered or tendered to
him, shall be deemed to have committed an
offence under section 187 of the Indian
Penal Code (45 of 1860 ).

102. Power of police officer to
seize certain property.- (1) Any police
officer, may seize any property which may
be alleged or suspected to have been stolen,
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
401
or
which
may
be
found
under
circumstances which create suspicion of the
commission of any offence.

(2)
Such
police
officer,
if
subordinate to the officer in charge of a
police station, shall forthwith report the
seizure to that officer.

(3) Every police officer acting
under sub- section (1) shall forthwith report
the seizure to the Magistrate having
jurisdiction and where the property seized
is such that it cannot be conveniently
transported to the Court, he may give
custody thereof to any person on his
executing a bond undertaking to produce
the property before the Court as and when
required and to give effect to the further
orders of the Court as to the disposal of the
same.]

165. Search by police officer.-
(1) Whenever an officer in charge of a
police station or a police officer making an
investigation has reasonable grounds for
believing that anything necessary for the
purposes of an investigation into any
offence
which
he
is
authorised
to
investigate may be found in any place with
the limits of the police station of which he
is in charge, or to which he is attached, and
that such thing cannot in his opinion be
otherwise obtained without undue delay,
such officer may, after recording in writing
the grounds of his belief and specifying in
such writing, so far as possible, the thing
for which search is to be made, search, or
cause search to be made, for such thing in
any place within the limits of such station.

(2) A police officer proceeding
under sub- section (1), shall, if practicable,
conduct the search in person.

(3) If he is unable to conduct the
search in person, and there is no other
person competent to make the search
present at the time, he may, after recording
in writing his reasons for so doing, require
any officer subordinate to him to make the
search, and he shall deliver to such
subordinate officer an order in writing,
specifying the place to be searched, and so
far as possible, the thing for which search is
to be made; and such subordinate officer
may thereupon search for such thing in
such place.

(4) The provisions of this Code as
to search- warrants and the general
provisions as to searches contained in
section 100 shall, so far as may be, apply to
a search made under this section.

(5) Copies of any record made
under sub- section (1) or sub- section (3)
shall forthwith be sent to the nearest
Magistrate empowered to take cognizance
of the offence, and the owner or occupier of
the place searched shall, on application, be
furnished, free of cost, with a copy of the
same by the Magistrate."

12. Before we proceed further, it
would be apposite to take note of few
judgements of Hon'ble Supreme Court.

13. The Apex Court in the case of
Union of India vs. Ashok Kumar Sharma
and others, (2021) 12 SCC 674 has held as
under:

"70. In State (NCT of Delhi) v.
Sanjay [State (NCT of Delhi) v. Sanjay,
(2014) 9 SCC 772 : (2014) 5 SCC (Cri)
437] , the matter arose under the Mines and
Minerals (Development and Regulation)
Act, 1957 ("the MMDR Act") as also under
Sections 378 and 379IPC and the question
which arose for decision was whether the
provisions of Sections 21 and 22, apart
from other provisions of the MMDR Act,
operated as a bar to prosecution for the
offences under Sections 379/114 and other
provisions of the IPC. Section 21 of the
said Act prescribes various penalties.
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 22 deals with cognizance of
offences and it reads as follows:

"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."

71. The Court was dealing with
appeals from the judgments [Sanjay v.
State, 2009 SCC OnLine Del 525 : (2009)
109 DRJ 594] , [Vishalbhai Rameshbhai
Khurana v. State of Gujarat, 2010 SCC
OnLine Guj 13915 : (2010) 3 GCD 2160]
of the High Courts of Delhi and Gujarat.
The
registration
of
the
cases
was
challenged on the basis of Section 22 of the
MMDR Act. Paras 8, 9, 10 and 11 reveal
the questions which arose and how they
came to be dealt with by the High Court :
(Sanjay case [State (NCT of Delhi) v.
Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC
(Cri) 437] , SCC pp. 781-82)

"8. Criminal Appeal No. 499 of
2011, as stated above, arose out of the
order [Sanjay v. State [Sanjayv. State, 2009
SCC OnLine Del 525 : (2009) 109 DRJ
594] ] passed by the Delhi High Court. The
Delhi High Court formulated three issues
for consideration:

(1) Whether the police could have
registered an FIR in the case;

(2) Whether a cognizance can be
taken by the Magistrate concerned on the
basis of police report; and

(3) Whether a case of theft was
made out for permitting registration of an
FIR under Sections 379/411 of the Penal
Code.

9. The Delhi High Court [Sanjay
v. State, 2009 SCC OnLine Del 525 :
(2009) 109 DRJ 594] after referring to
various provisions on the MMDR Act visà-vis the Code of Criminal Procedure
disposed of the application directing the
respondent to amend the FIR, which was
registered, by converting the offence
mentioned
therein
under
Sections
379/411/120-B/34IPC to Section 21 of the
MMDR Act. The High Court in para 18 of
the impugned order [Sanjay v. State, 2009
SCC OnLine Del 525 : (2009) 109 DRJ
594] held as under : (Sanjay case [Sanjay v.
State, 2009 SCC OnLine Del 525 : (2009)
109 DRJ 594] , SCC OnLine Del)

'18. In view of the aforesaid and
taking into consideration the provisions
contained under Section 21(6) of the said
Act I hold that:

(i) The offence under the said Act
being cognizable offence, the police could
have registered an FIR in this case;

(ii) However, so far as taking
cognizance of an offence under the said Act
is concerned, it can be taken by the
Magistrate only on the basis of a complaint
filed by an authorised officer, which may
be filed along with the police report;

(iii) Since the offence of mining
of sand without permission is punishable
under Section 21 of the said Act, the
question of the said offence being an
offence under Section 379IPC does not
arise because the said Act makes illegal
mining as an offence only when there is no
permit/licence for such extraction and a
complaint in this regard is filed by an
authorised officer.'

10. On the other hand the Gujarat
High
Court
[Vishalbhai
Rameshbhai
Khurana v. State of Gujarat, 2010 SCC
OnLine Guj 13915 : (2010) 3 GCD 2160]
formulated the following questions for
consideration : (Vishalbhai Rameshbhai
Khurana case [Vishalbhai Rameshbhai
Khurana v. State of Gujarat, 2010 SCC
OnLine Guj 13915 : (2010) 3 GCD 2160] ,
SCC OnLine Guj para 5)
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
403

'5. ... (1) Whether Section 22 of
the Act would debar even lodging an FIR
before the police with respect to the
offences punishable under the said Act and
the Rules made thereunder?

(2) In case such FIRs are not
debarred and the police are permitted to
investigate, can the Magistrate concerned
take cognizance of the offences on a police
report?

(3) What would be the effect on
the offences punishable under the Penal
Code, 1860 in view of the provisions
contained in the Act?'

11. The Gujarat High Court
[Vishalbhai Rameshbhai Khurana v. State
of Gujarat, 2010 SCC OnLine Guj 13915 :
(2010) 3 GCD 2160] came to the following
conclusion
:
(Vishalbhai
Rameshbhai
Khurana case [Vishalbhai Rameshbhai
Khurana v. State of Gujarat, 2010 SCC
OnLine Guj 13915 : (2010) 3 GCD 2160] ,
SCC OnLine Guj para 28.5)

'28.5 ... "18. ... (i) The offence
under the said Act being cognizable
offence, the police could have registered an
FIR in this case;

(ii) However, so far as taking
cognizance of offence under the said Act is
concerned, it can be taken by the
Magistrate only on the basis of a complaint
filed by an authorised officer, which may
be filed along with the police report;

(iii) Since the offence of mining
of sand without permission is punishable
under Section 21 of the said Act, the
question of the said offence being an
offence under Section 379IPC does not
arise because the said Act makes illegal
mining as an offence only when there is no
permit/licence for such extraction and a
complaint in this regard is filed by an
authorised officer."

72. The Gujarat High Court also
held that Section 22 did not prohibit
registering an FIR by the police in regard to
the offence under the MMDR Act and the
Rules thereunder. However, it was not open
to the Magistrate to take cognizance. This
Court, after referring to the decisions in
Sanjay [Sanjay v. State, 2009 SCC OnLine
Del 525 : (2009) 109 DRJ 594] , held as
follows : (Sanjay case [State (NCT of
Delhi) v. Sanjay, (2014) 9 SCC 772 :
(2014) 5 SCC (Cri) 437] , SCC pp. 811-12,
paras 69-73)

"69. Considering the principles of
interpretation and the wordings used in
Section 22, in our considered opinion, the
provision is not a complete and absolute
bar for taking action by the police for
illegally and dishonestly committing theft
of minerals including sand from the
riverbed. The Court shall take judicial
notice of the fact that over the years rivers
in India have been affected by the alarming
rate of unrestricted sand mining which is
damaging the ecosystem of the rivers and
safety of bridges. It also weakens riverbeds,
fish breeding and destroys the natural
habitat of many organisms. If these illegal
activities are not stopped by the State and
the police authorities of the State, it will
cause serious repercussions as mentioned
hereinabove. It will not only change the
river hydrology but also will deplete the
groundwater levels.

70. There cannot be any dispute
with regard to restrictions imposed under
the MMDR Act and remedy provided
therein. In any case, where there is a
mining
activity
by
any
person
in
contravention of the provisions of Section 4
and other sections of the Act, the officer
empowered and authorised under the Act
shall exercise all the powers including
making
a
complaint
before
the
jurisdictional Magistrate. It is also not in
dispute that the Magistrate shall in such
cases take cognizance on the basis of the
404 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint filed before it by a duly
authorised officer. In case of breach and
violation of Section 4 and other provisions
of the Act, the police officer cannot insist
the Magistrate for taking cognizance under
the Act on the basis of the record submitted
by the police alleging contravention of the
said Act. In other words, the prohibition
contained in Section 22 of the Act against
prosecution of a person except on a
complaint made by the officer is attracted
only when such person is sought to be
prosecuted for contravention of Section 4
of the Act and not for any act or omission
which constitutes an offence under the
Penal Code.

71. However, there may be a
situation where a person without any lease
or licence or any authority enters into river
and extracts sand, gravel and other minerals
and removes or transports those minerals in
a clandestine manner with an intent to
remove dishonestly those minerals from the
possession of the State, is liable to be
punished for committing such offence
under Sections 378 and 379 of the Penal
Code.

72. From a close reading of the
provisions of the MMDR Act and the
offence defined under Section 378IPC, it is
manifest that the ingredients constituting
the offence are different. The contravention
of terms and conditions of mining lease or
doing mining activity in violation of
Section 4 of the Act is an offence
punishable under Section 21 of the MMDR
Act, whereas dishonestly removing sand,
gravel and other minerals from the river,
which is the property of the State, out of
the State's possession without the consent,
constitute an offence of theft. Hence,
merely because initiation of proceeding for
commission of an offence under the
MMDR Act on the basis of complaint
cannot and shall not debar the police from
taking
action
against
persons
for
committing theft of sand and minerals in
the manner mentioned above by exercising
power under the Code of Criminal
Procedure and submit a report before the
Magistrate for taking cognizance against
such persons. In other words, in a case
where there is a theft of sand and gravel
from the government land, the police can
register a case, investigate the same and
submit a final report under Section
173CrPC before a Magistrate having
jurisdiction for the purpose of taking
cognizance
as
provided
in
Section
190(1)(d)
of
the
Code
of
Criminal
Procedure.

73. After giving our thoughtful
consideration in the matter, in the light of
the relevant provisions of the Act vis-à-vis
the Code of Criminal Procedure and the
Penal Code, we are of the definite opinion
that the ingredients constituting the offence
under the MMDR Act and the ingredients
of dishonestly removing sand and gravel
from the riverbeds without consent, which
is the property of the State, is a distinct
offence
under
IPC.
Hence,
for
the
commission of offence under Section
378IPC, 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.
Consequently, the contrary view taken by
the different High Courts cannot be
sustained in law and, therefore, overruled.
Consequently, these criminal appeals are
disposed of with a direction to the
Magistrates
concerned
to
proceed
accordingly."

73. Chapter XII CrPC carries the
chapter heading "Information to the Police
and their Powers to Investigate":
6 All. Abdul Hayee & Ors. Vs. State of U.P. & Ors.
405

74. It comes under the section
heading "Procedure for investigation". The
body of the section can be split up into the
following parts:

74.1. An officer in charge of a
police station may from information
received have reason to suspect the
commission of an offence. He may also
have reason to suspect the commission of
cognizable offence not on the basis of any
information but otherwise.

74.2. As far as information is
concerned, it is clearly relatable to the
information which has been provided to
him within the meaning of Section 154.
Cases where he acts on his own knowledge
would be covered by the expression
otherwise.

74.3. The offences must be an
offence which he is empowered under
Section 156 to investigate. We have noticed
that a police officer is empowered to
investigate a cognizable offence without an
order of the Magistrate. As far as noncognizable offence is concerned, he cannot
investigate such offence without the order
of the Magistrate having power to try or
commit the case for trial.

170.2. There is no bar to the
police officer, however, to investigate and
prosecute the person where he has
committed an offence, as stated under
Section 32(3) of the Act i.e. if he has
committed any cognizable offence under
any other law."

14. In Jayant and others vs. State of
Madhya Pradesh (2021) 2 SCC 670 the
Apex Court has laid down as follows:

"8.3.
That
thereafter,
after
considering the relevant provisions of the
MMDR Act, this Court opined that there is
no
complete
and
absolute
bar
in
prosecuting persons under the Penal Code
where the offences committed by persons
are
penal
and
cognizable
offence.
Ultimately, this Court concluded in paras
72 and 73 as under: (SCC p. 812)

"72. From a close reading of the
provisions of the MMDR Act and the
offence defined under Section 378 IPC, it is
manifest that the ingredients constituting
the offence are different. The contravention
of terms and conditions of mining lease or
doing mining activity in violation of
Section 4 of the Act is an offence
punishable under Section 21 of the MMDR
Act, whereas dishonestly removing sand,
gravel and other minerals from the river,
which is the property of the State, out of
the State's possession without the consent,
constitute an offence of theft. Hence,
merely because initiation of proceeding for
commission of an offence under the
MMDR Act on the basis of complaint
cannot and shall not debar the police from
taking
action
against
persons
for
committing theft of sand and minerals in
the manner mentioned above by exercising
power under the Code of Criminal
Procedure and submit a report before the
Magistrate for taking cognizance against
such persons.