# Azad @ Azad Khan v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-26
- **Case number:** Criminal Misc. Writ Petition No. 15254 of 2008
- **Bench:** Imtiyaz Murtaza, S.N.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azad-azad-khan-v-state-of-u-p-and-others-41239
- **Pages:** 7

## Headnote

Constitution of India-Art. 226-Quashing
of F.I.R.-offence under Section 379/411
IPC readwith Rule 57 and 70 of U.P.
Mines and Mineral Rules (Concession)
Rules 1963-challanged on the ground
without prior permission of Magistrate
police can not go with investigationheld-since
offences
both
categories
emanate from integrated facts-police not
prevented
from
investigation-No
interference
called
far-petition
dismissed.

Held: Para 14
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
838
No doubt, Rule 74 of the Rules 1963
envisages that no court shall take
cognizance of any offence punishable
under these rule except on a complaint
in writing of the facts constituting such
offences by the District officer or by any
officer authorised by him in this behalf
and further the offences under Rules 57
and 70 are non-cognizable offences, but
at the same time since the petitioner has
also
been
challaned
under
section
379/411 IPC, alongwith the offences
under Rules 57 and 70 of the Rules 1963
and since the offences of both the
categories emanate from the integrated
facts, the police is not prevented from
investigating
the
non-cognizable
offences along-with cognizable offences
as cognizable offences.
Case law discussed:
(1961) 3 SCR 563, AIR 1965 SC 1185, AIR
1958 Punjab 172, AIR 1997 SC 1

## Text

3 All] Azad @ Azad Khan V. State of U.P. and others
837
is mandatory and suspension should be an
exception, and the Authority competent to
suspend the employee must apply its mind
to the material on record, and after
objectively considering such material, the
Authority should arrive at a conclusion
and record his reasons that charges
against the employee are so serious as are
likely to warrant imposition of major
penalty.

8. In the present case, we do not find
that the Competent Authority has made
any
objective
consideration
of
the
material on record, or has arrived at a
conclusion that the charges against the
petitioner are so serious as are likely to
result in imposition of major penalty
against the petitioner.

9. Unless the Competent Authority
arrives at such a conclusion on objective
consideration of the material on record for
the reasons to be recorded, the suspension
order passed by the Competent Authority
would be vitiated.

10. In view of the aforesaid
discussion, the impugned suspension
order cannot be sustained.

11. In the result, this writ petition
succeeds and is allowed. The impugned
suspension order dated 7th July, 2008
(Annexure 19 to the Writ Petition) is
quashed.

12. However, the State Government
is at liberty to proceed with the enquiry
against the petitioner in accordance with
law.

13. Before parting with the case we
may add that even though, affidavits have
been filed by the petitioner as well as by
the respondents on the question of
malafides as well as the merits of the case
but we have refrained from going into the
question of malafides or the merits of the
case as it may affect the interest of either
of the parties in the enquiry proceedings.

14. We order accordingly.

Parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE S.N.H. ZAIDI, J.

Criminal Misc. Writ Petition No. 15254 of
2008

Azad alias Azad Khan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Dev Brat Mukherjee
Sri Md. Abrar Khan

Counsel for the Respondents:
Sri P.K. Singh
A.G.A.

Constitution of India-Art. 226-Quashing
of F.I.R.-offence under Section 379/411
IPC readwith Rule 57 and 70 of U.P.
Mines and Mineral Rules (Concession)
Rules 1963-challanged on the ground
without prior permission of Magistrate
police can not go with investigationheld-since
offences
both
categories
emanate from integrated facts-police not
prevented
from
investigation-No
interference
called
far-petition
dismissed.

Held: Para 14
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
838
No doubt, Rule 74 of the Rules 1963
envisages that no court shall take
cognizance of any offence punishable
under these rule except on a complaint
in writing of the facts constituting such
offences by the District officer or by any
officer authorised by him in this behalf
and further the offences under Rules 57
and 70 are non-cognizable offences, but
at the same time since the petitioner has
also
been
challaned
under
section
379/411 IPC, alongwith the offences
under Rules 57 and 70 of the Rules 1963
and since the offences of both the
categories emanate from the integrated
facts, the police is not prevented from
investigating
the
non-cognizable
offences along-with cognizable offences
as cognizable offences.
Case law discussed:
(1961) 3 SCR 563, AIR 1965 SC 1185, AIR
1958 Punjab 172, AIR 1997 SC 1

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1.

Impugned
herein
is
the
proceeding launched against the petitioner
pursuant
to
F.I.R.
dated
12.8.2008
registered at case crime no. 525 of 2008
under section 57 and 70 of the U.P.
Minor, Minerals (Concession) Rules,
1963 and section 379/411 of the I.P.C.
P.S. Dildarnagar District Ghazipur.

2. Heard learned counsel for the
petitioner
and
also
learned
A.G.A.
appearing for the State authorities.

3. It would appear that the F.I.R.
lodged refers to letter received from
Deputy Collector Zamania Ghazipur that
the accused named in the F.I.R. was
indulging
in
illegal
activities
of
excavations of sands and its sale and
pursuant thereto, the police of P.S.
Dildarnagar District Ghazipur raided the
place and found the sands stored to the
extent mentioned in the F.I.R on the land
belonging to Rustam which according to
further allegation had been collected there
for sale and the accused was indulging in
illegal sale of the sands. It is mentioned
that the accused had no valid licence for
excavation
or
sale
of
the
sands.
Thereafter, F.I.R. was lodged in the case
as stated supra at case crime no. 525 of
2008 under Rules 57and 70 of the Minor,
Minerals (Concession) Rules and section
379/411 IPC.

4. To begin with the learned counsel
for the petitioner referring to Section 22
of the Mines, Minerals (Regulation and
development) Act 1957 canvassed that the
Magistrate is not vested with the power to
take cognizance on the basis of charge
sheet submitted by the Police. The learned
counsel further referred to Section 23 A
and canvassed that the offences under the
Act can be taken cognizance of on the
basis of complaint by person authorized
under section 22 of t he Act attended with
further submissions that the offences for
which the petitioner has been indicted is
compoundable as would be apparent from
Section 23 A of the Act and also the
Rules framed there-under. It is further
canvassed that Rule 57 and Rule 70 of the
Rules
1963
being
non-cognizable
offences, it is not permissible for the
police to investigate the non-cognizable
offence. Lastly, he argued that the F.I.R
lodged in the case be quashed in exercise
of power under Article 226 of the
Constitution of India.

5. Since learned counsel for the
petitioner has laid great stress on sections
22 and 23 A of the Act, we feel called to
quote the same as under:

"22. Cognizance of offences-No court
shall take cognizance of any offence
3 All] Azad @ Azad Khan V. State of U.P. and others
839
punishable under this actor any rules
made there-under except upon complaint
in writing made by a person authorized in
this behalf by the Central Government or
State Government."

"23-A. Compound of offences- (1) Any
offence punishable under this act, or any
rule made there-under may, either before
or after the institution of the prosecution,
be compounded by the person authorized
under section 22 to make a complaint, to
the court with respect to that offence, on
payment to that person for credit to the
Government of such sum as tha5 person
may specify.
Provided that in the case of an offence
punishable with fine only no such sum
shall exceed the maximum amount of fine
which may be imposed for that offence.
(2) where an offence is compounded
under sub section (1), no proceeding or
further proceeding, as the case may be,
shall be taken against the offender in
respect of the offence so compounded,
and the offender, in custody, shall be
released forthwith."

6. We have also glanced through
section 190 attended with section 155 of
the Cr.P.C. along-with section 20 of the
Mines,
Minerals
(Regulation
and
Development) Act, 1957. Section 155 of
the Cr.P.C as amended envisages (1)
when information is given to an officer in
charge of a police station of the
commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as
the State Government may prescribe in
this behalf, and refer, the information to
the Magistrate, (2) No police officer shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial,
(3) any police officer receiving such order
may exercise the same powers in respect
of the investigation (except the power to
arrest without warrant) as an officer in
charge of a police station may exercise in
a cognizable case, and (4) where a case
relates to two or more offences of which
at least one is cognizable, the case shall
be deemed to be a cognizable case,
notwithstanding that the other offences
are non-cognizable.

7. Before proceeding further, we
would like to quip here as a prologue that
the issue involved in this petition has
suffered
too
much
theorising
and
therefore it would be supererogatory on
our part to go the whole hog discussing
the various provisions on the point. It
would suffice to say that the legal position
on the point has since been streamlined by
legion of decisions. Few of the decisions
which are illuminating and apply on the
basis of the ratio flowing there-from to
the facts of the present case may be dwelt
upon.

8. Having examined the matter, it
would appear from a perusal of the Rules
57 and 70 of the Rules, 1963 that the
action contemplated in the Rules is in fact
intended to eliminate private individuals
or general public from initiating the
prosecution (though the contention of the
learned counsel was on the lines that the
provisions
of
the
Minor,
Minerals
(Concession) Rules, 1963 purport to
eliminate role of police from initiating the
prosecution) and to insist that before
cognizance is taken the complaint must
emanate from a public servant. In this
connection, we may refer to a decision of
the Apex Court in Bhagwati Saran v.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
840
State of U.P. (1961) 3 SCR 563, in which
the Apex Court explained the nature of a
report under section 11 of the Essential
Supplies (Temporary Powers) Act, 1946
which was a provision in the same words
as in the case in hand. The Apex Court
held that the purpose of Section 11 of the
Essential Supplies Act 1946 is to
eliminate private individuals such as rival
traders of general public from initiating
the prosecution and to insist that before
cognizance is taken, the complaint must
emanate from a public servant. It was
contended in that case that since the
report in writing which the police officer
makes under section 11 of the E.C. Act,
1955 is not a charge sheet under section
173 of the Code, it must be equated to a
complaint of facts under section 190 (1)
(a) of the Cr.P.C. It was further contended
that while the offence under section 420
of the IPC was triable under the procedure
laid down in Sec. 251 A, Cr.P.C, the
offence under section 7 of the E.C. Act
was triable under section 252 Cr.P.C. The
question substantially was who should
launch the criminal prosecution. The
Apex Court observed that where the law
requires a report in writing by a public
servant the requirements of the law are
satisfied when a report is filed by a public
servant who is also a police officer. The
Apex Court further observed that where
the police officer cannot investigate a
non-cognizable
offence
without
the
permission of a Magistrate, he is not
prevented by anything in the Code from
investigating a non-cognizable offence
alongwith a cognizable offence when the
two arise from the same facts. The Apex
Court also observed that police officer is a
public servant. The aforesaid view was
countenance in approval in Pravin
Chandra Mody v. State of A.P AIR
1965 SC 1185 and in para 6 of the said
decision, the Apex Court held as under:

"Section 156 (2) provides that where
a police officer enquires into an offence
under section 156 (1) his action cannot be
called into question on the ground that he
was not empowered to investigate the
offence. The enquiry was an integrated
one, being based on the same set of facts.
Even if the offence under the Essential
Commodities Act may not be cognizable
though it is not alleged by the appellant, it
is non cognizable, the police officer would
be competent to include it in the charge
sheet under section 173 with respect to a
cognizable offence."

9. The Apex Court also relied upon
a decision with approval in Ram Krishna
Dalmia v. State, AIR 1958 Punjab 172.
The crux of what has been held in the said
decision is excerpted below.

"The provisions of S. 155 (1),
Criminal Procedure Code, must be
regarded as applicable only in those
cases where the information given to the
police relates solely to a non-cognizable
offence. Where information is given to the
police of a cognizable offence and the
case is registered regarding that offence,
the
investigating
officer,
while
investigating
the
cognizable
offence
cannot
possibly
be
debarred
from
investigating any subsidiary and noncognizable offence which may arise out of
the facts and can also include those latter
cases in his main report under section
173."

10. Ultimately, the Apex Court in
Pravin Chand Mody's case (Supra) held
that "We entirely agree that both the
offences
if
cognizable
could
be
3 All] Azad @ Azad Khan V. State of U.P. and others
841
investigated together under Chapter XIV
of the Code and also if one of them was a
non-cognizable offence."

11. In State of Orissa v. Sharat
Chandra Sahu, AIR 1997 SC 1, the
Apex Court held the view that under
Section 155 (4) of the Cr. P.C., the police
can in case of complaint of cognizable
and non-cognizable offences, investigate
cognizable as well as non-cognizable
offences irrespective of the fact as to who
filed it. In para12 of the said decision, the
Apex Court held as under:

"12. Sub-section (4) of Section 155 is
a new provision introduced for the first
time in the Code of 1973. This was done
to overcome the controversy about
investigation of non-cognizable offences
by the police without the leave of the
Magistrate. The statutory provision is
specific, precise and clear and there is no
ambiguity in the language employed in
sub-section (4). It is apparent that if the
facts reported to the police disclose both
cognizable and non-cognizable offences
the police would be acting within the
scope of its authority in investigating both
the offences as the legal fiction enacted in
sub-section (4) provides that even noncognizable case shall, in that situation, be
treated as cognizable."

12. In the above decision, there was
bar of section 198 Cr.P.C. which deals
with the prosecution for offences against
marriage. Section 198 envisages that (1)
no court shall take cognizance of an
offence punishable under Chapter XX of
the Indian penal Code except upon a
complaint
made
by
some
person
aggrieved by the offence. The above
provisions set out the prohibition for the
Court from taking cognizance of an
offence punishable under Chapter XX of
the I.P.C. The cognizance however can be
taken only if the complaint is made by the
person aggrieved by the offence. Clause
(c ) appended to the proviso to sub section
(1)
provides
that
where
a
person
aggrieved is the wife, a complaint may be
made on her behalf by her father mother,
brother, sister son or daughter or other
relations who are related to her by blood,
marriage or adoption. In the said case, it
would appear, complaint was made to
Women's Commission which in turn
directed registration of the case, the High
Court
relying
upon
the
provisions
contained in clause (c) held that since the
wife herself had not filed the complaint
the Magistrate could not legally take
cognizance of the offence. The Apex
Court set aside the verdict holding that the
High Court was clearly in error in
quashing the charge under section 494
IPC on the ground that the trial court
could not take cognizance of that offence
unless complaint was filed personally by
the wife or any other near relation
contemplated by clause (c ) of the proviso
to Section 198 (1). It was further observed
that the High Court forgot that the other
offence namely offence under section 498
A of the IPC was a cognizable offence
and the police was entitled to take
cognizance of the offence irrespective of
the person who gave the first information
to them. Then the Apex Court proceeded
to refer to Section 155 Cr.P.C particularly
clause 4 of the said section. In para 11 of
the said decision, the Apex Court
observed that sub-section (4) of section
155 creates a legal fiction and provides
that although a case may comprise of
several offences of which some are
cognizable and others are not, it would
not be open to the police to investigate the
cognizable offences only and omit the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
842
non-cognizable offences. Since the whole
case (comprising of cognizable and noncognizable offences) is to be treated as
cognizable, the police had no option but
to investigate the whole of the case and to
submit a charge sheet in respect of all the
offences, cognizable or non-cognizable
both, provided it is found by the police
during investigation that the offences
appear, prima facie, to have been
committed. In the facts and circumstances
of the case, it would suffice to say that the
above case bears close similarly to the
facts of the present case.

13. The other case on the point is
State of Punjab v. Raj Singh AIR 1998
SC 768. The observations of the Apex
Court in the above decisions are excerpted
below.

"We are unable to sustain the
impugned order of the High Court
quashing the F.I.R. lodged against the
respondents
alleging
commission
of
offences under sections 419, 420, 467 and
468 IPC by them in course of the
proceeding of a civil suit, on the ground
that Section 195 (1) (b) (ii) Cr.P.C
prohibited
entertainment
of
and
investigation into the same by the police.
From a plain reading of section 195
Cr.P.C. It is manifest that it comes into
operation at the stage when the Court
intends to take cognizance of an offence
under section 190 (1) Cr.P.C and it has
nothing to do with the statutory power of
the police to investigate into an F.I.R
which discloses a cognizable offence in
accordance with Chapter XII of the Code
even if the offence is alleged to have been
committed in or in relation to, any
proceeding in Court. In other words, the
statutory
power
of
the
police
to
investigate under the Code is not in any
way controlled or circumscribed by
Section 195 Cr.P.C. It is of course true
that upon the charge sheet if any filed on
completion of the investigation into such
an offence the court would not be
competent to take cognizance thereof in
view of the embargo of section 195 (1) (b)
Cr.P.C but nothing therein deters the
Court from filing a complaint for the
offence on the basis of the F.I.R. (filed by
the aggrieved private party) and the
materials collected during investigation,
provided it forms the requisite opinion
and follows the procedure laid down in
section 340 Cr.P.C..........."

14. Having discussed the above
decisions in all its ramifications, we revert
to the facts of the present case. It would
appear that the petitioner has been
indicted, besides the offences under
Section 57 and 70 of the Mines, Minerals
(Concession) Rules which are noncognizable, under section 379/411 IPC
which are cognizable and regard being
had to the fact that at the relevant time,
when recovery of sand was made from the
possession of the petitioner, he was not
possessed of valid licence, we are not
inclined to subscribe to the submissions
that the police was prevented from
investigating the offences under Rules 57
and 70 of the Rules 1963 by reason of the
same being non cognizable offences
together with offences under Section
379/411 IPC which on the other hand are
cognizable offences notwithstanding the
fact that both the offences both cognizable
and non-cognizable offences are based on
the same facts. No doubt, Rule 74 of the
Rules 1963 envisages that no court shall
take
cognizance
of
any
offence
punishable under these rule except on a
complaint
in
writing
of
the
facts
constituting such offences by the District
3 All] Nagar Palika Parishad and another V. Controlling Authority and others
843
officer or by any officer authorised by
him in this behalf and further the offences
under Rules 57 and 70 are non-cognizable
offences, but at the same time since the
petitioner has also been challaned under
section 379/411 IPC, alongwith the
offences under Rules 57 and 70 of the
Rules 1963 and since the offences of both
the
categories
emanate
from
the
integrated
facts,
the
police
is
not
prevented from investigating the noncognizable
offences
along-with
cognizable
offences
as
cognizable
offences. In this connection we feel called
to revert to the contents of the F.I.R
lodged by the police constable on the
basis of the written report submitted by
the S.D.M. Zamania. In the F.I.R, the
police constable explicitly stated that the
accused person was engaged in illegal
excavation of sands and its sale without
there being any valid licence and acting
upon the report of the S.D.M. Zamania,
the police swung into action and initiated
criminal action of raiding the place and
lodging the F.I.R. Since the accused
person has been charged with offence
under section 379/411 IPC which are
cognizable offences, in the circumstances
we have no reason to take a view different
from the view taken by the Apex Court in
state of Orissa (supra) that the police was
authorised to investigate the cognizable
offence alongwith non-cognizable offence
irrespective of the fact who was the
author of the report lodged at the police
station regard being had to the provisions
of Rule 76 which envisages that the
officer referred to in Rule 66 may request
for the help of the local police for lawful
exercise of his powers under these rules
and the local police shall render all
possible assistance as may be necessary to
enable the officer to exercise the powers
under these rules. The view we are taking
in this matter, also finds reinforcement
from the decisions cited above.

15. The learned counsel for the
petitioner has not brought forth anything
cogent or convincing to manifest that no
cognizable offence is disclosed Prima
facie on the allegations contained in the
F.I.R. or that there was any statutory
restriction operating on the police to
investigate the case.

16. Having scanned the allegations
contained in the F.I.R. the Court is of the
view that the allegations in the F.I.R. do
disclose
commission
of
cognizable
offence and therefore no ground is made
out warranting interference by this Court.
The petition is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2008

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 55129 of 2006

Nagar Palika Parishad & anr ..Petitioners
Versus
Controlling Authority & ors. ...Respondents

Counsel for the Petitioners:
Sri. R.K. Awasthi

Counsel for the Respondents:
Sri. Vishnu Sahai
Sri. Bhupeshawar Dayal
S.C.

Municipalities Act 1916-Section 297Gratuity-claimed
by
employees
not
governed by centralized Services Rulesno exemption granted as per Rule 5 of
the Act-held-entitled for gratuity under
regulation framed by the Government
and not under Payment of Gratuity Act.