# Pradeep Singh v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-28
- **Case number:** Application U/S 482 No. 14699 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-singh-v-state-of-u-p-anr-46577
- **Pages:** 4

## Headnote

Act,1957 - Section 22 - For filing of a complaint
before the Jurisdictional Magistrate has not
been followed-Offences as far as relates to
penal
code-and
cognizance
taken
by
Magistrate-cannot be faulted-and in so far of
offences under MMDR Act-cognizance cannot
sustained being in violation of section 22. (E-9)

List of Cases cited:

## Text

454 INDIAN LAW REPORTS ALLAHABAD SERIES
be
applied
by
the
court
is
whether
uncontroverted allegation as made prima facie
establishes the offence and whether chances of
ultimate conviction are bleak and no useful
purpose is likely to be served by allowing
criminal proceedings to be continue. In S.W.
Palankattkar & others Vs. State of Bihar,
2002 (44) ACC 168, it has been held by the
Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a rule.
The inherent powers of the High Court under
Section 482 Cr.P.C itself envisages three
circumstances
under
which
the
inherent
jurisdiction may be exercised:-(i) to give effect
an order under the Code, (ii) to prevent abuse of
the process of the court ; (iii) to otherwise secure
the ends of justice. The power of High Court is
very wide but should be exercised very
cautiously to do real and substantial justice for
which the court alone exists.

17. The High Court would not embark
upon an inquiry as it is the function of the Trial
Judge/Court. The interference at the threshold of
quashing of the criminal proceedings in case in
hand cannot be said to be exceptional as it
discloses prima facie commission of an offence.
In the result, the prayer for quashing of
impugned charge sheet, cognizance order and
the entire proceedings of the case is refused.
There is no merit in this application filed by the
applicant under Section 482 Cr.P.C.

18. In view of the aforesaid submissions
made by learned counsel for the parties, this
Court finds that prima facie no case is made out
for interference by this Court exercising power
under Section 482 CrPC.

19. Accordingly, this application under
Section 482 Cr.P.C. filed by the applicant is
dismissed.
----------
(2021)11ILR A454
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 No. 14699 of 2021

Pradeep Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajeev Ranjan Singh, Sri Rajesh Kumar Mall

Counsel for the Opposite Parties:
A.G.A.

Mines And Mineral (Development Regulation)
Act,1957 - Section 22 - For filing of a complaint
before the Jurisdictional Magistrate has not
been followed-Offences as far as relates to
penal
code-and
cognizance
taken
by
Magistrate-cannot be faulted-and in so far of
offences under MMDR Act-cognizance cannot
sustained being in violation of section 22. (E-9)

List of Cases cited:

1. Ram Bahal Vs St. of U.P. & anr., (Application u/s
482 No.19576 of 2020, decided on 20.09.2021)

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Rajesh Kumar Mall, learned
counsel for the applicant and Sri Pankaj Saxena,
learned Additional Government Advocate-I for
the State-Opposite party.

2. The present application under Section
482 of the Code of Criminal Procedure, 19731
has been filed seeking to quash the entire
proceedings as well as the Cognizance Order
dated 05.09.2019 passed by the Additional Chief
Judicial Magistrate, Court No.5, Prayagraj in
Case No.1841 of 2019 (State Vs. Bhawarjeet
11 All. Pradeep Singh Vs. State of U.P. & Anr.
455
Singh and Others), arising out of Case Crime
No.367/2018, under Section 379 Indian Penal
Code, 18602 and Section 4 and 21 Mines and
Minerals (Development and Regulation) Act,
19573, Police Station Sankargarh, District
Prayagraj.

3. It is pointed out that proceedings in the
present case were initiated pursuant to an FIR
dated 25.11.2018 lodged under Section 379, 411
of the Penal Code and Section 4, 21 of the
MMDR Act and a police report under Section
173(2) of the Code dated 24.12.2018 was filed
whereupon cognizance was taken by the learned
Magistrate on 05.09.2019 and the applicant has
been summoned.

4. It is submitted that in so far as the
offences referable to Sections 4, 21 of the
MMDR Act are concerned, the procedure
prescribed under Section 22 of the Act having
not been followed, the Magistrate could not have
taken cognizance in respect of the said offence.

5. In support of his submission reliance has
been placed on a decision of this Court dated
20.09.2021 rendered in Ram Bahal Vs. State of
U.P. and Another4. In particular, the following
paragraphs of the judgment have been referred
to:-

"43. The legal position, as emanating
from
the
aforesaid
discussion,
may
be
summarized as follows :-

43.1 The prohibition applying the rule
against double jeopardy would be attracted in a
situation where the same act constitutes an
offence under more than one enactment.
However, if the two offences are distinct and
different with different ingredients, under two
different enactments, the rule against double
jeopardy would not be applicable. 43.7 The
investigation of offences being within the
domain of the police, the power of a police
officer to investigate into a cognizable offence
would ordinarily not be impinged by any fetter
and courts would interfere only where it is found
that the investigatory powers have been
exercised in breach of the statutory provisions
putting the personal liberty and/or the property
of the citizen in jeopardy. The procedural law is
designed to further the ends of justice and
should not be allowed to be frustrated on mere
technicalities and any defect or illegality in
exercise of investigatory powers would have no
direct bearing on the competence or the
procedure relating to taking of cognizance or the
trial.

44. It would therefore be seen that the
bar under Section 22 of the Act shall not be
attracted at the stage of lodging of an FIR or
registration of the criminal case. The bar under
the section shall get attracted only at the stage
when the Magistrate takes cognizance of the
offence and orders issuance of process/summons
for the offence under the MMDR Act and the
Rules made thereunder. On receipt of the police
report, insofar as it relates to commission of
offence under the Penal Code, the Magistrate
having jurisdiction can take cognizance of the
offence and proceed further. However, in respect
of offences under the MMDR Act upon
submission of the police report the same would
be required to be sent to the concerned
Magistrate as well as to the concerned
authorised officer as mentioned in Section 22 of
the MMDR Act whereupon the concerned
authorised officer may file a complaint before
the Magistrate along with the report submitted
by the investigating officer and thereafter it
would be open for the 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
the Rules made thereunder and at that stage it
can be said that cognizance has been taken by
the Magistrate in respect of an offence under the
MMDR Act.
456 INDIAN LAW REPORTS ALLAHABAD SERIES

45. In the case at hand, the offence
under Section 4, 21 of the MMDR Act read with
Rules 3, 57, 70 of the Concession Rules which
relate to illegal mining, and the offence under
Section 379, 411 IPC which would relate to
theft, cannot be said to be one and the same. The
two offences being distinct and under separate
enactments with ingredients also being distinct
the principle based on the rule against double
jeopardy would not be attracted.

46. The offence under Section 379
IPC, which is with regard to theft of minerals,
being undisputedly a cognizable offence, the act
of the police in registering a case, investigating
the same and placing a police report under
Section 173 of the Code, cannot be said to be
unlawful. The concerned Magistrate is also well
within his jurisdiction in taking cognizance as
per the provisions under the Code.

47. The contention sought to be raised
on behalf of the applicant that the facts as
disclosed in the FIR would constitute a mere
violation of Section 4 of the MMDR Act which
would be an offence cognizable only under
Section 21 of the MMDR Act and not under any
other law therefore stands rejected. The FIR
version having disclosed an offence under
Section 379 of the Penal Code and a police
report having also been submitted pursuant
thereto, there is no bar on the jurisdictional
Magistrate from taking cognizance of the
offence under the Penal Code. The contravention
of the provisions under Section 4 of the MMDR
Act also constituting a cognizable offence, the
police were within their rights in investigating
the same, there being no bar under the MMDR
Act with regard to the same.

48. The initiation of the proceedings by
lodging of an FIR under relevant provisions of the
MMDR Act and the Rules made thereunder and
also the provisions of the Penal Code therefore
cannot be said to be hit by the bar under Section 22
of the MMDR Act. The investigation of the case
and the submission of the police report under
Section 173 also cannot be said to be barred by the
provisions under the MMDR Act.

49. Insofar as the offences under the
MMDR Act are concerned, at the stage of
submission of the police report, it was for the
concerned authorized officer as specified under
Section 22 of the MMDR Act to have filed a
complaint before the Magistrate along with the
police report whereupon the Magistrate could have
taken cognizance after following due procedure
and issued process/summons in respect of the
violations of the various provisions of the MMDR
Act and the Rules made thereunder."

6.

Learned
Additional
Government
Advocate-I does not dispute the aforesaid legal
position. He also does not dispute that in respect of
the offences under the MMDR Act the procedure
under Section 22, with regard to filing of a
complaint before the jurisdictional magistrate, has
not been followed.

7.

Learned
Additional
Government
Advocate-I, however, points out that in so far as
the proceedings relating to offences under the
Penal Code are concerned, in respect of which
cognizance has been taken by the learned
Magistrate and process/summons have been
issued, the bar under the MMDR Act would not
operate and there is no illegality in the proceedings
in so far as the offences under the Penal Code are
concerned.

8. Learned counsel appearing for the
applicant has fairly submitted that he is pressing
his application only in respect of the proceedings
relating to the offences under the MMDR Act
and not in respect of those under the Penal Code.

9. Having regard to the aforestated facts
and circumstances and following the decision in
the case of Ram Bahal vs. State of U.P. and
11 All. Adesh Kumar Vs. State of U.P. & Anr.
457
Another (supra) and the legal propositions
summarized therein, the proceedings, insofar as
they relate to the offences under the Penal Code
in respect of which cognizance has been taken
by the Magistrate and process/summons have
been issued, cannot be faulted with and the
challenge raised in regard to the same cannot be
sustained and is accordingly rejected.

10. However, insofar as the offences
under the MMDR Act are concerned, the
procedure under Section 22 having not been
followed and in the absence of a complaint by
the authorized officer, the cognizance taken by
the Magistrate cannot be legally sustained and
the proceedings in this regard are set aside and
quashed. It would be open to the authorized
officer to initiate proceedings in this regard as
per the procedure under Section 22 of the
MMDR Act and to lodge a complaint before
the concerned Magistrate along with report
submitted
by
the
investigating
officer
whereupon the Magistrate concerned may take
cognizance after following due procedure and
issue process/summons.

11. The application under Section 482
Cr.P.C. stands partly allowed to the extent
indicated above.
----------
(2021)11ILR A457
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No.16691 of 2020

Adesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Dwivedi
Counsel for the Opposite Parties:
A.G.A.

Allegation upon the Applicant of enticing and
trying to outrage her modesty-Applicant filed
application for DNA Examination/Narco test to
determine whether the blood and spermatozoa
found in the semen belongs to the accusedSuch DNA test will not conclude that the
Applicant had not committed rape on the
victim.

Application dismissed. (E-9)

Held, the confessions made by a semi-conscious
person is not admissible in court. Deception Detecting
Test report has some validity but is not totally
admissible
in
court,
which
considers
the
circumstances under which it was obtained and
assess its admissibility. Results of such tests can be
used to get admissible evidence, can be collaborated
with other evidence or to support other evidence. But
if the result of this test is not admitted in a court, it
cannot be used to support any other evidence
obtained the course of routine investigation. (para
65) (E-9)

List of Cases cited:

1. Criminal Appeal No.1267 of 2004, Smt. Selvi & ors.
Vs St. of Karn. (decided on 5th May, 2010)

2. Crl. ReVs Pet. No.2329 of 2012, Abdurahiman Vs
St. of Kerala (decided on 10th July, 2013)

3. Criminal Appeal No.111 of 2020, Dashrath s/o
Hiraman Johare Vs St. of Mah. (decided on 14th July,
2020)

4.Crl. ReVs Pet. No.2280 of 2003, Anil Kumar Vs
Ayyappan & anr. (decided on 5th April, 2013)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Rajesh Dwivedi, learned
counsel for the applicant as well as learned
Additional Government Advocate and perused
the record.

2. This application u/s 482 Cr.P.C. has
been preferred for quashing of the impugned