# Raju Chaturvedi @ Ram Prakash & Ors v. State Of U.P. & Anr - **Citation:** (2016) 8 ILRA 1209 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-04 - **Bench:** Abhai Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-chaturvedi-ram-prakash-ors-v-state-of-u-p-anr-44162 - **Pages:** 5 ## Headnote Paragraph 1: The applicants filed an application under Section 482 Cr.P.C. seeking to quash Charge-sheet No. 76/14 (dated 28.09.2014) and the subsequent cognizance/summoning order (dated 26.04.2016) passed by the lower court under Section 379 IPC, Sections 3/70 of the Mines and Minerals Act, and Sections 4/21 of the Environment Protection Act, pertaining to P.S. Naraini, District Banda. They also prayed for a stay of the proceedings. Paragraph 2: The counsel for the applicants submitted that the First Information Report (FIR) was lodged on 14.06.2014, alleging that the applicants were illegally removing and collecting mines and minerals from a riverbed. Following an investigation, the charge-sheet was submitted, and the lower court subsequently took cognizance and issued summons. Paragraph 3: The applicants' counsel argued that because the Mines and Minerals (Development and Regulation) Act (MMDR Act) is a Special Act, it excludes the provisions of the general law (IPC). They vehemently contended that Section 379 IPC cannot be applied to illegal mining allegations, making the Magistrate's order taking cognizance under both the IPC and the MMDR Act illegal and liable to be quashed. Paragraph 4 & 5 (Supreme Court Quote): To support this argument, the counsel relied on the Supreme Court judgment in State (NCT of Delhi) Vs. Sanjay (2014). However, the quoted text establishes that the ingredients of an offence under the MMDR Act and the offence of theft under Section 378/379 IPC are distinct. The Supreme Court ruled that the MMDR Act does not debar the police from investigating the theft of public property (sand/minerals) and submitting a report under Section 173 Cr.P.C. for the Magistrate to take cognizance under the IPC. Paragraph 6 & 7: The counsel also cited a Jharkhand High Court ruling (Prasuram Bellani Vs. State of Jharkhand, 2015). In that case, the High Court applied the Sanjay precedent to uphold cognizance taken under IPC sections (including Section 379), while setting aside the cognizance taken under the Special MMDR Act because it lacked a proper statutory complaint. Paragraph 8: Based on these precedents, the Court observed that Section 379 IPC is not precluded in cases of illegal riverbed mining. The Court highlighted that unchecked illegal mining severely damages the ecosystem, compromises structural safety (like bridges), alters river hydrology, and depletes groundwater levels, necessitating strict state and police action. 1210 INDIAN LAW REPORTS ALLAHABAD SERIES Paragraph 9 (Supreme Court Quote): The Court highlighted Paragraph 70 of the Sanjay judgment, which clarifies the statutory bar under Section 22 of the MMDR Act. It explicitly states that a Magistrate can only take cognizance of offences under the MMDR Act upon a formal complaint by an authorized officer, not via a standard police report. However, this restriction does not apply to independent offences under the IPC. Paragraph 10: The Court reiterated that while a formal statutory complaint is required for MMDR Act prosecutions, the police maintain full liberty to track, investigate, and charge individuals under Sections 378 and 379 IPC for clandestinely extracting and removing State-owned minerals without a license. Paragraph 11 & 12: The Court concluded that the lower court's cognizance under the IPC was completely legal and valid. However, the cognizance taken directly under the MMDR Act on a police report was legally unsustainable. Consequently, the Court partially allowed the application, setting aside only the portion of the order dealing with the MMDR Act, directing the lower court to proceed with the remaining IPC charges, and disposing of the application. List of Citations:- ## Text 8 All. Raju Chaturvedi @ Ram Prakash & Ors. Vs State Of U.P. & Anr. 1209 (2016) 8 ILRA 1209 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.08.2016 BEFORE THE HON'BLE ABHAI KUMAR, J. Application U/s 482 No.- 22167 Of 2016 Raju Chaturvedi @ Ram Prakash & Ors. ...Applicants Versus State Of U.P. & Anr. ...Opposite Parties Counsel for the Applicants: Shri Rajendra Singh Chauhan Counsel for the Opposite Parties: G.A. Held - Paragraph 1: The applicants filed an application under Section 482 Cr.P.C. seeking to quash Charge-sheet No. 76/14 (dated 28.09.2014) and the subsequent cognizance/summoning order (dated 26.04.2016) passed by the lower court under Section 379 IPC, Sections 3/70 of the Mines and Minerals Act, and Sections 4/21 of the Environment Protection Act, pertaining to P.S. Naraini, District Banda. They also prayed for a stay of the proceedings. Paragraph 2: The counsel for the applicants submitted that the First Information Report (FIR) was lodged on 14.06.2014, alleging that the applicants were illegally removing and collecting mines and minerals from a riverbed. Following an investigation, the charge-sheet was submitted, and the lower court subsequently took cognizance and issued summons. Paragraph 3: The applicants' counsel argued that because the Mines and Minerals (Development and Regulation) Act (MMDR Act) is a Special Act, it excludes the provisions of the general law (IPC). They vehemently contended that Section 379 IPC cannot be applied to illegal mining allegations, making the Magistrate's order taking cognizance under both the IPC and the MMDR Act illegal and liable to be quashed. Paragraph 4 & 5 (Supreme Court Quote): To support this argument, the counsel relied on the Supreme Court judgment in State (NCT of Delhi) Vs. Sanjay (2014). However, the quoted text establishes that the ingredients of an offence under the MMDR Act and the offence of theft under Section 378/379 IPC are distinct. The Supreme Court ruled that the MMDR Act does not debar the police from investigating the theft of public property (sand/minerals) and submitting a report under Section 173 Cr.P.C. for the Magistrate to take cognizance under the IPC. Paragraph 6 & 7: The counsel also cited a Jharkhand High Court ruling (Prasuram Bellani Vs. State of Jharkhand, 2015). In that case, the High Court applied the Sanjay precedent to uphold cognizance taken under IPC sections (including Section 379), while setting aside the cognizance taken under the Special MMDR Act because it lacked a proper statutory complaint. Paragraph 8: Based on these precedents, the Court observed that Section 379 IPC is not precluded in cases of illegal riverbed mining. The Court highlighted that unchecked illegal mining severely damages the ecosystem, compromises structural safety (like bridges), alters river hydrology, and depletes groundwater levels, necessitating strict state and police action. 1210 INDIAN LAW REPORTS ALLAHABAD SERIES Paragraph 9 (Supreme Court Quote): The Court highlighted Paragraph 70 of the Sanjay judgment, which clarifies the statutory bar under Section 22 of the MMDR Act. It explicitly states that a Magistrate can only take cognizance of offences under the MMDR Act upon a formal complaint by an authorized officer, not via a standard police report. However, this restriction does not apply to independent offences under the IPC. Paragraph 10: The Court reiterated that while a formal statutory complaint is required for MMDR Act prosecutions, the police maintain full liberty to track, investigate, and charge individuals under Sections 378 and 379 IPC for clandestinely extracting and removing State-owned minerals without a license. Paragraph 11 & 12: The Court concluded that the lower court's cognizance under the IPC was completely legal and valid. However, the cognizance taken directly under the MMDR Act on a police report was legally unsustainable. Consequently, the Court partially allowed the application, setting aside only the portion of the order dealing with the MMDR Act, directing the lower court to proceed with the remaining IPC charges, and disposing of the application. List of Citations:- 1. State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 2. Prasuram Bellani and others Vs. The State of Jharkhand, Criminal Revision No. 593 of 2000 (Decided on 31.03.2015 by the Jharkhand High Court, Ranchi) (Delivered by Hon'ble Abhai Kumar, J.) 1. This application under Section 482 Cr.P.C. has been filed with the prayer to allow this application and quash the impugned charge-sheet No. 76/14 dated 28.9.2014, Police Station Naraini, District Banda in connection with Case No. 328/IX/16, under Section 379 IPC, 3/70 Mines and Minerals Act & 4/21 Environment Protection Act, P.S. Naraini, District Banda on the basis of which learned Court below has taken cognizance on 26.4.2016 and issued summons to the applicants. It is further prayed that proceeding in the aforesaid case be stayed. 2. It is submitted by the learned counsel that respondent no. 2 lodged a First Information Report on 14.6.2014 against the applicants in Case Crime No. 87 of 2014, under Section 379 IPC, 3/70 Mines and Minerals Act and 4/21 of Environment Protection Act, Police Station Naraini, District Banda, on the basis, that applicants were removing the mines and minerals from the riverbed and collected on the field of the village. After investigation charge-sheet was submitted on 28.9.2014 and court below has taken cognizance and issued summons to the applicants on 26.4.2016. 3. It is submitted by the learned counsel that when offence under the Mines and Minerals (Development and Regulation) Act (hereinafter referred to as the "M.M.D.R. Act") excludes the provisions of Indian Penal Code, cognizance under both, Indian Penal Code as well as M.M.D.R. Act is illegal and it has been vehemently argued that M.M.D.R. in Special Act will prevail over general law that is IPC and consequently Section 379 IPC does not come into the picture when illegal mining is being alleged whereas learned Magistrate has taken cognizance on the police report under the Indian Penal Code as well as Mines and Minerals Act which is liable to be quashed. 4. In support the learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in the case of State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 which was decided 8 All. Raju Chaturvedi @ Ram Prakash & Ors. Vs State Of U.P. & Anr. 1211 alongwith the other criminal appeals. The observation made by the Hon'ble Apex Court is reproduced below:- "71. From a close reading of the provisions of 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, gravels and other minerals from the river, which is the property of the State, out of 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 person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure. 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-vis the Code of Criminal Procedure and the Indian 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 river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD 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 concerned Magistrates to proceed accordingly." 5. Further reliance placed by the learned counsel upon another decision of Jharkhand High Court, Ranchi in the case of Prasuram Bellani and others Vs. The State of Jharkhand decided on 31.3.2015. 6. Learned Judge of Jharkhand High Court also taking clue on the above referred Hon'ble Apex Court judgment came to the conclusion that there is no illegality in the impugned order dated 11.7.2001 passed by learned Additional Chief Judicial Magistrate, Pakur P.S. Case No. 311 of 2000, corresponding to G.R. No. 593 of 2000, so far it took cognizance for the offence under Sections 467, 468, 420 and 379 IPC against the petitioners. However, the cognizance of the offence under the Special Act relating to Mines and Minerals was found to be unsustainable in the eyes of law and that portion was set aside. 1212 INDIAN LAW REPORTS ALLAHABAD SERIES 7. With the above observation of Jharkhand High Court as well as that of Hon'ble Apex Court, it is clear that Section 379 IPC is not precluded whenever any theft is being made in regard to mining in the riverbed that is damaging the Ecosystem and the safety of bridges. It also weakens river beds, 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 ground water levels. 8. Specific observation of the Apex Court in paragraph 70 of the judgment is necessary to be produced which runs as follows: "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 authorized 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 complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist 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 sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code." 9. As per observation of the Hon'ble Apex Court, police cannot insist the Magistrate for taking congnizance under the M.M.D.R Act and for that complaint is to be filed before the Magistrate by the competent authority. However, Paragraph 71 of the Judgemnt of the Hon'ble Apex Court gives liberty to the police in case of removal of mines and minerals against a person who is without any lease or licence or any authority entered into river and extracts sand, gravel and other minerals in removing or transporting these minerals in a clandestine manner with an intent to remove from the possession of the State and consequently is liable to be punished for committing such offence under Sections 378 and 379 IPC. 10. So far the cognizance taken by the learned trial court under the IPC is concerned, it cannot be said to be illegal or without authority but so far as the cognizance taken under the M.M.D.R. Act that is under the Special Act relating to mines and minerals is concerned, cannot be sustained in the eyes of law and accordingly only that portion of the impugned order is hereby set aside. So far as the cognisance under rest of sections is concerned that cannot be stayed or cannot be interfered and court below is directed to proceed accordingly. 11. The application under Section 482 Cr.P.C. is disposed of accordingly. ---------- 8 All. Smt. Kamla Devi Vs State Of U.P. & Ors. 1213 (2016) 8 ILRA 1213 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.08.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Application U/s 482 No.- 22817 Of 2016 Smt. Kamla Devi ...Applicant Versus State Of U.P. & Ors. ...Opposite Parties Counsel for the Applicant: Shri Surendra Singh Counsel for the Opposite Parties: G.A. Held - Paragraph 1: The Court heard the learned counsel for the applicant and the learned AGA, and thoroughly reviewed the case records. The applicant challenged an order dated 17.05.2016 passed by the 1st Additional Chief Judicial Magistrate, Banda, which registered her Section 156(3) Cr.P.C. application as a complaint case rather than directing the police to register an FIR. Paragraph 2: The Court accepted the learned AGA's contention that the alleged offences took place privately inside the applicant's house and not in a public place or within public view. Consequently, the applicant's attempt to charge the accused under Section 3(1)(x) of the SC/ST Act was deemed legally inapplicable to the situation. Paragraph 3: The Court observed that even if the allegations in the application were assumed to be true, all facts and evidence were already within the applicant's personal knowledge and control. Because there was no hidden evidence requiring a police investigation to uncover, the trial court appropriately treated it as a complaint case. The Court noted that the trial court's order relied on established precedents from both the High Court and the Supreme Court. Paragraph 4 & 5 (Precedent Quote): The Court highlighted the decision in Sukhwasi v. State of U.P. (2007), which emphasizes that Section 156(3) Cr.P.C. should be exercised sparingly and only in extraordinary circumstances, such as to prevent a miscarriage of justice. The precedent clarifies that because an alternative remedy of filing a private complaint is readily available, Magistrates are under no legal mandate or obligation to automatically allow every Section 156(3) application. Paragraph 6: The Court concluded that there was no illegality, impropriety, or jurisdictional error in the trial court's order. Finding no ground to invoke its inherent powers under Section 482 Cr.P.C., the Court dismissed the application. List of Citations:- Sukhwasi v. State of U.P., 2007 (59) ACC 739