# Ram Bahal v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-20
- **Case number:** Application U/S 482 No.19576 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bahal-v-state-of-u-p-anr-46582
- **Pages:** 27

## Headnote

A.G.A.

Mines
and
Minerals
(Development
and
Regulation ) Act, 1957- Section 22 - Bar u/s 22
not attracted at the stage of lodging of an FIR
11 All. Ram Bahal Vs. State of U.P. & Anr.
475
or registration of criminal case-bar only when
Magistrate takes cognizance of oofence and
issue process-case against the Applicant are
under MMDR Act andd under IPC-both not
same and one-distinct-Registering a case for
offence u/s 379 IPC and investigating it u/s
173 Cr.P.C-well within jurisdiction-as far as
offence
under
the
MMDR
,
concerned
authorized officer u/s 22 -to have filed a
complaint before the Magistrate along with
the police report-proceedings so far as relate to
offences under the Penal Code cannot be
faulted-but insofar as offences under the
MMDR Act are concerned-procedure u/s 22 not
followed-cognizance by the Magistrate cannot
be legally sustained-proceedings set aside in
this regard.

Application partly allowed.(E-9)

List of Cases cited:

## Text

_Characters 0–39,459 of 96,129. This is a partial read: ask again with offset=39459 for what follows._

474 INDIAN LAW REPORTS ALLAHABAD SERIES
be utilized to the fullest for effective aids to
interrogation and investigations in criminal
justice system.

68. It could be understood that these
pscho-medicl tests are violative in character but
at the same time individual interest cant be
placed above collective interest. Let us fulfill the
dream of having crime free society and the
maxim
"Jura
publica
anteferendaprivatis
juribus" should be followed meaning thereby
"public rights are to be preferred to private rights
whenever there being a dilemma between
individual liberties and security of public
interest. The Forensic science is defined as the
application of science in answering questions
that are of legal interest. More specifically,
forensic scientists employ techniques and tools
to interpret crime scene evidence, and use that
information in investigations.

69. The DNA evidence, no doubt has the
ability to increase the accuracy of verdicts in
criminal trials. But this does not mean that we
should be complacent about its use and
presentation. DNA will create a comprehensive
database eventually resulting in a human
databank of DNA publicly accessible and
tremendously utilized in criminal investigations.

70. Further, in the context of the present
case, the Court is of the view that the DNA Test
or Narcoanalysis Test, as prayed by the
applicant, is of no relevance in the case of rape.
The DNA Test can be said to be a conclusive
evidence regarding rape, but the said DNA test
will not conclude that the applicant had not
committed rape on the victim, even the test
come negative, it cannot be ruled out that the
rape has not been committed, therefore there is
no force in the argument of the applicant's
counsel.

71. This Court cannot go into the disputed
questions of fact once the prima facie offence is
made out and in the present case, as per the
allegation, prima facie offence is made out
against the applicant. Therefore, no case is made
out by the applicant for interference by this
Court exercising power under Section 482 CrPC
for the relief claimed and no such direction can
be issued as prayed by the applicant.

72. In the result, the prayer for quashing
of impugned order dated 15.10.2019 passed
by Special Judge (Protection of Children
from
Sexual
Offences
Act,
2012)/VIII
Additional District and Sessions Judge,
Kanpur Dehat in Application No.28Kha,
under Section 54 CrPC is refused. There is no
merit in this application filed by the applicant
under Section 482 Cr.P.C.

73. Accordingly, this application filed
under Section 482 Cr.P.C. by the applicant is
dismissed.
----------
(2021)11ILR A474
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

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

Application U/S 482 No.19576 of 2020

Ram Bahal ....Applicant
Versus
State of U.P. & Anr. ....Opposite Parties

Counsel for the Applicant:
Sri Arvind Singh, Sri Roopesh Kumar Mishra

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

Mines
and
Minerals
(Development
and
Regulation ) Act, 1957- Section 22 - Bar u/s 22
not attracted at the stage of lodging of an FIR
11 All. Ram Bahal Vs. State of U.P. & Anr.
475
or registration of criminal case-bar only when
Magistrate takes cognizance of oofence and
issue process-case against the Applicant are
under MMDR Act andd under IPC-both not
same and one-distinct-Registering a case for
offence u/s 379 IPC and investigating it u/s
173 Cr.P.C-well within jurisdiction-as far as
offence
under
the
MMDR
,
concerned
authorized officer u/s 22 -to have filed a
complaint before the Magistrate along with
the police report-proceedings so far as relate to
offences under the Penal Code cannot be
faulted-but insofar as offences under the
MMDR Act are concerned-procedure u/s 22 not
followed-cognizance by the Magistrate cannot
be legally sustained-proceedings set aside in
this regard.

Application partly allowed.(E-9)

List of Cases cited:

1. M.Palanisamy Vs The St. of T.N., AIR 2012 Mad 215

2.Centre for Public Interest Litigation Vs U.O.I.,
(2012) 3 SCC 1

3. M.C.Mehta Vs Kamal Nath, (1997) 1 SCC 388

4. Intellectuals Forum Vs St. of A.P., (2006) 3 SCC 549

5. Lalita Kumari Vs Govt. Of U.P. & ors., (2014) 2 SCC 1

6. H.N. Rishbud & ors. Vs St. of Delhi, AIR 1955 SCC196

7. Manohar Lal Sharma Vs Principal Secretary, (2014)
2 SCC 532

8. Maqbul Hussain Vs St. of Bombay, AIR 1953 SC 325

9. Charles, J. In R VsMiles, (1890) 24 QBD 423

10.The St. of Bombay Vs S.L. Apte & anr., AIR 1961
SC 578

11.Om Prakash Gupta VsSt. of UP, AIR 1957 SC 458

12. St. of M.P. Vs Veereshwar Rao Agnihotri, AIR
1957 SC 592

13. St. of Bihar Vs Murad Ali Khan & ors., (1988) 4
SCC 655

14. Blockburger Vs United St. s, 284US 299 (1932)

15. Jeffers Vs United St. s,432 US 137 (1977)

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

17. Jayant and ors. Vs St. of M.P., (2021) 2 SCC 670

18. Kanwar Pal Singh Vs St. of U.P. & anr.,(2020)14
SCC 331

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

20. H.N.Rishbud Vs St. of Delhi, AIR 1955 SC 196

21. Directorate of Enforcement Vs Deepak Mahajan,
(1994) 3 SCC 440

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

1. Heard Sri Arvind Singh, learned counsel
for the applicant and Sri Vinod Kant, learned
Additional Advocate General appearing along
with Sri Pankaj Saxena, learned Additional
Government Advocate-I and Sri Arvind Kumar,
learned Additional Government Advocate for
the State-opposite parties.

2. The present application under Section
482 CrPC has been filed seeking to quash the
charge-sheet no. 19 of 2019 dated 30.05.2019
and cognizance order dated 27.08.2020 along
with entire proceedings of Case No. 6772 of
2020 (State Vs. Dinesh Sharma and others)
under Section 4, 21 of the Mines and Minerals
(Development and Regulation) Act, 19571 read
with Rules 3, 57, 70 of Uttar Pradesh Minor
Minerals
(Concession)
Rules,
19632
and
Sections 379, 411 Indian Penal Code3, Police
Station Chopan, District Sonebhadra arising out
of Case Crime No. 274 of 2018 pending in the
court of Chief Judicial Magistrate, Sonebhadra.

3. The principal ground which is sought to
be raised in order to raise a challenge to the
proceedings is that the provisions under Sections
476 INDIAN LAW REPORTS ALLAHABAD SERIES
21 and 22 of the Mines and Minerals
(Development and Regulation) Act, 1957 would
operate as a bar against initiation of proceedings
by registration of an FIR in respect of
allegations constituting offences under the Penal
Code. It has been contended that the applicant
cannot be prosecuted and punished for the same
offence under two enactments namely the
MMDR Act and the Indian Penal Code as the
same would be barred by applying the rule
against double jeopardy. It has been further
urged that in respect of the offence, if at all
committed, cognizance would have been taken
under the MMDR Act, that too on the basis of a
complaint to be filed under Section 22 by an
authorized officer.

4. Learned Additional Advocate General
submits that the bar under Section 22 of the Act
would apply only in respect of offences
punishable under the MMDR Act and not in
respect of offences under the provisions of the
Indian Penal Code. He accordingly submits that
the initiation of proceedings by lodging of an
FIR cannot be said to be prohibited under law.
Further submission is that the FIR having been
lodged for distinct offences under the Penal
Code and MMDR Act, there is no illegality in
initiation of the criminal proceedings pursuant
thereto. It is pointed out that the State
Government has authorized all the District
Magistrates/District Mines Officers, in the State
of Uttar Pradesh, for the purposes of initiating
prosecution under Section 22 of the MMDR Act
and Rule 74 of the Concession Rules.

5. The question which thus falls for
consideration is with regard to the scope and
applicability of the bar contained under Section
22 of the MMDR Act and as to whether the
provisions under the section would operate as a
bar against initiation of proceedings also in
respect of offences under the Penal Code. The
other question would be as to what would be the
stage when the Magistrate can be said to have
taken cognizance so as to attract the bar under
Section 22 of the MMDR Act.

6. In order to appreciate the rival
contentions, the relevant provisions under the
MMDR Act may be adverted to, and the same
are as follows :-

"4. Prospecting or mining operations
to be under licence or lease. (1) No person
shall undertake any reconnaissance, prospecting
or mining operations in any area, except under
and in accordance with the terms and conditions
of a reconnaissance permit or of a prospecting
licence or, as the case may be, of a mining lease,
granted under this Act and the rules made
thereunder :

Provided that nothing in the subsection shall effect any prospecting or mining
operations undertaken in any area in accordance
with the terms and conditions of a prospecting
licence or mining lease granted before the
commencement of this Act which

Provided further that nothing in this
sub-section shall apply to any prospecting
operations undertaken by the Geological Survey
of India, the Indian Bureau of Mines, the Atomic
Minerals Directorate for Explorations and
Research of the Department of Atomic Energy
of the Central Government, the Directorate of
Mining and Geology of any State Government
(by whatever name called), and the Mineral
Exploration Corporation Limited, a Government
company within the meaning of Clause (45) of
Section 2 of the Companies Act, 2013 (18 of
2013), and any such entity that may be notified
for this purpose by the Central Government.

(1-A) No person shall transport or
store or cause to be transported or stored any
mineral otherwise than in accordance with the
provisions of this Act and the rules made
thereunder.
11 All. Ram Bahal Vs. State of U.P. & Anr.
477

(2)
No
reconnaissance
permit,
prospecting licence or mining lease shall be
granted otherwise than in accordance with the
provisions of this Act and the rules made
thereunder.

(3) Any State Government may, after
prior consultation with the Central Government
and in accordance with the rules made under
Section
18,
undertake
reconnaissance,
prospecting or mining operations with respect to
any mineral specified in the First Schedule in
any area within that State which is not already
held
under
any
reconnaissance
permit,
prospecting licence or mining lease.

21.
Penalties.
(1)
Whoever
contravenes the provisions of sub-section (1) or
sub-section (1-A) of Section 4 shall be
punishable with imprisonment for a term which
may extend to five years and with fine which
may extend to five lakh rupees per hectare of the
area.

(2) Any rule made under any
provision of this Act may provide that any
contravention thereof shall be punishable with
imprisonment for a term which may extend to
two years or with fine which may extend to five
lakh rupees, or with both, and in the case of a
continuing contravention, with additional fine
which may extend to fifty thousand rupees for
every day during which such contravention
continues after conviction for the first such
contravention.

(3) Where any person trespasses into
any land in contravention of the provisions of
sub-section (1) of Section 4, such trespasser may
be served with an order of eviction by the State
Government or any authority authorised in this
behalf by that Government and the State
Government or such authorised authority may, if
necessary, obtain the help of the police to evict
the trespasser from the land.

(4) Whenever any person raises,
transports or causes to be raised or transported,
without any lawful authority, any mineral from
any land and for that purpose, uses any tool,
equipment, vehicle or any other thing, such
mineral, tool, equipment, vehicle or any other
thing shall be liable to be seized by an officer or
authority specially empowered in this behalf.

(4-A) Any mineral, tool, equipment,
vehicle or any other thing seized under subsection (4), shall be liable to be confiscated by
an order of the court competent to take
cognizance of the offence under sub-section (1)
and shall be disposed of in accordance with the
directions of such court.

(5) Whenever any person raise,
without any lawful authority, any mineral from
any land, the State Government may recover
from such person the mineral so raised, or where
such mineral has already been disposed of, the
price thereof, and may also recover from such
person rent, royalty or tax, as the case may be,
for the period during which the land was
occupied by such person without any lawful
authority.

(6)
Notwithstanding
anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974), an offence under sub-section
(1) shall be cognizable.

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 State Government.

23-B. Power to search. If any
gazetted officer of the Central or a State
Government
authorised
by
the
Central
Government or a State Government, as the case
may be, in this behalf by general or special order
478 INDIAN LAW REPORTS ALLAHABAD SERIES
has reason to believe that any mineral has been
raised in contravention of the provisions of this
Act or the rules made thereunder or any
document or thing in relation to such mineral;
secreted in any place or vehicle he may be
search for such mineral, document or thing and
the provisions of Section 100 of the Code of
Criminal Procedure, 1973 (2 of 1974), shall
apply to every such search."

7. The corresponding provisions with
regard to cognizance of offences under the Uttar
Pradesh Minor Minerals (Concession) Rules,
1963, which have been made in exercise of
powers under Section 15 of the MMDR Act, are
also required to be referred to. Rules 3, 57, 70,
74 of the Concession Rules are being extracted
below :-

"3. Mining operations to be under a
mining lease or mining permit.-(1) No person
shall undertake any mining operations in any
area within the State of any minor minerals to
which these rules are applicable except under
and in accordance with the terms and conditions
of a mining lease or mining permit granted
under these rules:

Provided that nothing shall affect any
operations undertaken in accordance with the
terms and conditions of a mining lease or permit
duly granted before the commencement of these
rules.

(2) No mining lease or mining permit
shall be granted otherwise than in accordance
with the provisions of these rules.

57.
Penalty
for
unauthorised
mining.-Whoever contravenes the provisions of
Rule 3 shall on conviction be punishable with
imprisonment of either description for a term,
which may extend up to six months or with fine
which may extend to twenty-five thousand
rupees or with both."

70. Restriction on transport of the
Minerals.- (1) The holder of a mining lease or
permit or a person authorised by him in this
behalf may issue a pass in Form MM-11 to
every person carrying a consignment of minor
mineral by a vehicle, animal or any other mode
of transport. The State Government may,
through the District Officer, make arrangements
for the supply of printed MM-11 Form books on
payment basis.

(2) No person shall carry, within the
State a minor mineral by a vehicle, animal or
any other mode of transport, excepting railway,
without carrying a pass in Form MM-11 issued
under sub-rule (1), Form-C issued under Rule 5
(2) of The Uttar Pradesh Mineral (Prevention of
Illegal Mining, Transportation and Storage)
Rules, 2002 or similar valid transit pass issued
by any other State.

Provided that if the State Government
enters into an agreement to collect the Royalty
through contractor, receipt of royalty or zero
receipt as the case may be shall be issued by
such contractor and in such cases carrying out
such receipt with Form MM-11 will be
mandatory for transportation.

(3) Every person carrying any minor
mineral shall, on demand by any officer
authorised under Rule 66 or such officer as may
be authorised by the State Government in this
behalf, so the said pass to such officer and allow
him to verify the correctness of the particulars of
the pass with references to the quantity of the
Minor Mineral.

(4)
The
State
Government
may
establish a check post for any area included in
any mining lease or permit, and when a check
post is so established public notice shall be
given to this fact by publication in the Gazette
and in such other manner as may be considered
suitable by the State Government.
11 All. Ram Bahal Vs. State of U.P. & Anr.
479

(5) No person shall transport a minor
mineral for which these rules apply from such
area without first presenting the mineral at the
check post established for that area for
verification of the weight or measurement of the
mineral.

(6) Any person found to have
contravened any provision of this rule shall on,
conviction, be punishable with imprisonment of
either description for a term which may extend
to six months or with fine which may extend to
Twenty Five thousand rupees or with both.

74. Cognizance of offences- (1) No
court shall take cognizance of any offence
punishable under these rules 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.

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

8. On an analysis of the provisions of the
MMDR Act and the Concession Rules, referred
to above, the position which emerges is as
follows :-

8.1 Section 4, in particular sub-section (1A)
thereof
puts
a
total
restriction
on
transportation or storage of any mineral
otherwise than in accordance with the provisions
of the Act and the Rules made thereunder.

8.2 Section 21 provides for the penalties
and as per the terms of the section contravention
of Section 4 (1-A) of the Act is punishable. Subsection (3) of Section 21 would show that the
State Government or any other authority
authorized by the State Government may obtain
the help of police to evict any person who
trespasses into any land in contravention of the
provisions of Section 4 (1) of the Act. Subsection (4) further empowers the officer or an
authority specially empowered in this behalf to
seize any tool, equipment, vehicle or any other
thing which are used by any person who
illegally or without any lawful authority raises,
transports any mineral from any land. Those
minerals, tools, equipment or vehicle or any
other thing so seized shall be confiscated by the
order of the court competent to take cognizance
and shall be disposed of in accordance with the
directions of such court as contemplated under
sub-section (4-A) of Section 4 of the Act. Subsection (6) of Section 21 has been inserted by an
Amendment Act of 1986 whereby an offence
under sub- section (1) of the section has been
made cognizable.

8.3 Section 22 would show that cognizance
of any offence punishable under the Act or the
Rules made thereunder shall be taken only upon
a written complaint made by a person authorized
in this behalf by the Central Government or the
State Government.

8.4 Section 23-B confers power on any
gazetted officer of the Central or State
Government authorized in that behalf to make
search of minerals, documents or things in case
there is a reason to believe that any mineral has
been raised in contravention of the Act or the
Rules made thereunder.

8.5 Rule 3 of the Concession Rules
prohibits any mining operations in respect of a
minor mineral, in any area within the State to
which the rules are applicable except under and
in accordance with the terms of a mining lease
or a mining permit granted under the rules. The
contravention of Rule 3 invites penalty and
constitutes a punishable offence. Rule 70
contains a restriction on transport of the minerals
and in terms thereof there is a prohibition on
transport of a minor mineral within the State,
without carrying a pass in the prescribed form or
similar valid transit pass issued by any other
480 INDIAN LAW REPORTS ALLAHABAD SERIES
State. The contravention of the provision has
been made punishable. In terms of Rule 74, no
court is to take cognizance of any offence
punishable under the rules except on a complaint
in writing by the District Officer or by any
officer authorized by him in this behalf.

9. Certain provisions of the Code, which
are relevant for the purposes of the controversy
involved in the present case, are also required to
be referred to and the same are as follows :-

"2.Definitions-(c)"cognizable
offence" means an offence for which, and
"cognizable case" means a case in which, a
police officer may, in accordance with the First
Schedule or under any other law for the time
being in force, arrest without warrant;

(d) "complaint" means any allegation
made orally or in writing to a Magistrate, with a
view to his taking action under this Code, that
some person, whether known or unknown, has
committed an offence, but does not include a
police report.

(h) "investigation" includes all the
proceedings under this Code for the collection of
evidence conducted by a police officer or by any
person (other than a Magistrate) who is
authorized by a Magistrate in this behalf;

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

(c) to prevent such person from
causing the evidence of the offence to disappear
11 All. Ram Bahal Vs. State of U.P. & Anr.
481
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 subsection (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 non-cognizable
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.

149. Police to prevent cognizable
offences-

Every police officer may interpose for
the purpose of preventing, and shall, to the best
of his ability, prevent, the commission of any
cognizable offence.
482 INDIAN LAW REPORTS ALLAHABAD SERIES

150. Information of design to
commit cognizable offences- Every police
officer receiving information of a design to
commit
any
cognizable
offence
shall
communicate such information to the police
officer to whom he is subordinate, and to
any other officer whose duty it is to prevent
or take cognizance of the commission of any
such offence.

151.
Arrest
to
prevent
the
commission of cognizable offences-(1) A
police officer, knowing of a design to
commit any cognizable offence may arrest,
without orders from a Magistrate and
without a warrant, the person so designing,
if it appears to such officer that the
commission of the offence cannot be
otherwise prevented.

(2) No person arrested under subsection (1) shall be detained in custody for a
period exceeding twenty-four hours from the
time of his arrest unless his further detention
is required or authorized under any other
provisions of this Code or of any other law
for the time being in force.

152. Prevention of injury to
public property-A police officer may of his
own authority interpose to prevent any
injury attempted to be committed in his view
to
any
public
property,
movable
or
immovable, or the removal or injury of any
public landmark or buoy or other mark used
for navigation."

10. An overview of the aforestated
provisions under the Code would go to show
the following :-

10.1 Sub-section (1) of Section 4
provides that all offences under the Indian
Penal Code shall be investigated, inquired
into,
tried
and
otherwise
dealt
with
according to the provisions contained in the
said Code.

10.2 Sub-section (2) of Section 4 provides
that 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 regulating the manner
or place of investigation, inquiry or trial of such
offences.

10.3 According to Section 5 of the Code,
the procedure provided under the Special Act
shall prevail over the general procedure
provided under the Code of Criminal Procedure.

10.4 Section 41 of the Code goes to show
that a police officer may without an order from a
Magistrate and without a warrant, arrest any
person, under the circumstances provided
therein.

10.5 Chapter XI (Sections 149 to 153) of
the Code confers powers and duties upon the
police officer to take preventive action in certain
cases.

11. It would also be relevant to refer to the
provisions of Chapter XIV, XV and XVI of the
Code.

11.1 Chapter XIV (Sections 190-199) of
the Code deals with "Conditions requisite for
initiation
of
proceedings".
Section
190
empowers a Magistrate to take cognizance of an
offence in certain circumstances. Sub-section (1)
thereof is material and may be quoted in
extenso:

"190. Cognizance of offences by
Magistrates-(1) Subject to the provisions of this
Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially
empowered in this behalf under sub-section (2),
may take cognizance of any offence-
11 All. Ram Bahal Vs. State of U.P. & Anr.
483

(a) upon receiving a complaint of facts
which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from
any person other than a police officer, or upon
his own knowledge, that such offence has been
committed."

11.2 Chapter XV (Sections 200-203)
relates to "Complaints to Magistrates" and
covers cases before actual commencement of
proceedings in a court or before a Magistrate.
Section 200 of the Code requires a Magistrate
taking cognizance of an offence to examine
the complainant and his witnesses on oath.
Section 202, however, enacts that a Magistrate
is not bound to issue process against the
accused as a matter of course. It enables him
before the issue of process either to inquire
into the case himself or direct an investigation
to be made by a police officer or by such other
person as he thinks fit for the purpose of
deciding whether there is sufficient ground for
proceeding further. The underlying object of
the inquiry under Section 202 is to ascertain
whether there is prima facie case against the
accused.

11.3 Chapter XVI is in respect of
commencement
of
proceedings
before
Magistrates and would become applicable after
cognizance of an offence has been taken by the
Magistrate under Chapter XIV. Section 204,
whereunder process can be issued, reads as
under :-

"204. Issue of process.-- (1) If in the
opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding,
and the case appears to be-

(a) a summons case, he shall issue his
summons for the attendance of the accused, or

(b) a warrant case, he may issue a
warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at
a certain time before such Magistrate or (if he
has no jurisdiction himself) some other
Magistrate having jurisdiction.

(2) No summons or warrant shall be
issued against the accused under sub-section (1)
until a list of the prosecution witnesses has been
filed.

(3) In a proceeding instituted upon a
complaint made in writing, every summons or
warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.

(4) When by any law for the time
being in force any process-fees or other fees are
payable, no process shall be issued until the fees
are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the
complaint.

(5) Nothing in this section shall be
deemed to affect the provisions of Section 87."

12. The provisions of the MMDR Act,
which is an Act to provide for the development
and regulation of mines and minerals under the
control of the Union have been consistently
interpreted keeping in view the compelling need
to restore the ecological imbalances and to stop
damages being caused to nature. The issues
relating to the adverse environmental impact of
illegal mining transportation and storage of
minerals have been viewed with concern and the
need to scrupulously adhere to the statutory
provisions with regard to regulation of the
mining operations have been emphasized.

13. The public trust doctrine has been held
to be part of our legal system wherein the State
is a trustee of all natural resources which are by
nature meant for public use and enjoyment, and
484 INDIAN LAW REPORTS ALLAHABAD SERIES
is under the legal duty to protect the
environment and the natural resources. In this
regard, reference may be had to the decisions in
M.Palanisamy Vs. The State of Tamil Nadu4,
Centre for Public Interest Litigation Vs.
Union of India,5 M.C.Mehta Vs. Kamal
Nath6, and Intellectuals Forum Vs. State of
A.P.7

14. In the Constitution Bench judgment in
Lalita Kumari Vs. Govt. of U.P. and others8,
registration of FIR under Section 154 of the Code
has been held mandatory, if the information
discloses commission of a cognizable offence.

15. The question as to whether proceedings
can be held to be vitiated upon a defect in
investigation or the same can be held to be a mere
irregularity was subject matter of consideration in
H.N. Rishbud and others Vs. State of Delhi9, and
it was held that a defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to cognizance
or trial. The relevant observations made in this
regard are being extracted below :-

"9.The question then requires to be
considered whether and to what extent the trial
which follows such investigation is vitiated. Now,
trial follows cognizance and cognizance is preceded
by investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable cases.
But it does not necessarily follow that an invalid
investigation nullifies the cognizance or trial based
thereon. Here we are not concerned with the effect
of the breach of a mandatory provision regulating
the competence or procedure of the Court as regards
cognizance or trial. It is only with reference to such
a breach that the question as to whether it constitutes
an illegality vitiating the proceedings or a mere
irregularity arises.

A defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police report
which results from an investigation is provided
in Section 190 CrPC as the material on which
cognizance is taken. But it cannot be maintained
that a valid and legal police report is the
foundation of the jurisdiction of the Court to
take cognizance. Section 190 CrPC is one out of
a group of sections under the heading
"Conditions
requisite
for
initiation
of
proceedings". The language of this section is in
marked contrast with that of the other sections of
the group under the same heading, i.e. Sections
193 and 195 to 199.

These latter sections regulate the
competence of the Court and bar its jurisdiction
in certain cases excepting in compliance
therewith. But Section 190 does not. While no
doubt, in one sense, Clauses (a), (b) and (c) of
Section 190(1) are conditions requisite for
taking of cognizance, it is not possible to say
that cognizance on an invalid police report is
prohibited and is therefore a nullity. Such an
invalid report may still fall either under Clause
(a) or (b) of Section 190(1), (whether it is the
one or the other we need not pause to consider)
and in any case cognizance so taken is only in
the nature of error in a proceeding antecedent to
the trial. To such a situation Section 537 CrPC
which is in the following terms is attracted :

"Subject to the provisions hereinbefore
contained, no finding, sentence or order passed
by a Court of competent jurisdiction shall be
reversed or altered on appeal or revision on
account of any error, omission or irregularity in
the complaint, summons, warrant, charge,
proclamation,
order,
judgment
or
other
proceedings before or during trial or in any
inquiry or other proceedings under this Code,
unless such error, omission or irregularity, has in
fact occasioned a failure of justice."

If, therefore, cognizance is in fact
taken, on a police report vitiated by the breach
11 All. Ram Bahal Vs. State of U.P. & Anr.
485
of
a
mandatory
provision
relating
to
investigation, there can be no doubt that the
result of the trial which follows it cannot be set
aside unless the illegality in the investigation can
be shown to have brought about a miscarriage of
justice. That an illegality committed in the
course of investigation does not affect the
competence and the jurisdiction of the Court for
trial is well settled as appears from the cases in-
'Parbhu v. Emperor', AIR 1944 PC 73 (C) and
'Lumbhardar Zutshi v. The King', AIR 1950 PC
26 (D)."

16. It was thereafter held in the case of
H.N. Rishbud (supra) that when the breach of
such a mandatory provision is brought to the
knowledge of the Court at a sufficiently early
stage, the Court, while not declining cognizance,
will have to take the necessary steps to get the
illegality cured and the defect rectified.

17. The power to investigate into offences
which are of a cognizable offence by the police
officer concerned as part of our criminal justice
system whereunder the investigation of an
offence is the domain of the police was
emphasized in Manohar Lal Sharma Vs.
Principal Secretary10, and it was held that
where such power is exercised consistent with
the statutory provisions and for a legitimate
purpose the courts ordinarily would not
interfere. It was stated thus :

"24. In the criminal justice system the
investigation of an offence is the domain of the
police. The power to investigate into the
cognizable offences by the police officer is
ordinarily not impinged by any fetters. However,
such power has to be exercised consistent with
the statutory provisions and for legitimate
purpose. The courts ordinarily do not interfere in
the
matters
of
investigation
by
police,
particularly, when the facts and circumstances
do not indicate that the investigating officer is
not functioning bona fide. In very exceptional
cases, however, where the court finds that the
police officer has exercised his investigatory
powers in breach of the statutory provision
putting the personal liberty and/or the property
of the citizen in jeopardy by illegal and improper
use of the power or there is abuse of the
investigatory power and process by the police
officer or the investigation by the police is found
to be not bona fide or the investigation is tainted
with animosity, the court may intervene to
protect the personal and/or property rights of the
citizens."

18.