JUDGMENT :

[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, 1973 (The Code) has been filed seeking to quash the entire proceedings as well as the Cognizance Order dated 5.9.2019 passed by the Additional Chief Judicial Magistrate, Court No. 5, Prayagraj in Case No. 1841 of 2019 (State v. Bhawarjeet Singh and others), arising out of Case Crime No. 367/2018, under Section 379 Indian Penal Code, 1860 (Penal Code) and Section 4 and 21 Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act), 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 5.9.2019 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 20.9.2021 rendered in Ram Bahal v. State of U.P. and another, 2021(9) ADJ 566. 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 alongwith 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 Rule