Cognizance for offences under mining statutes requires a written complaint by an authorized officer; IPC cognizance valid if essential theft elements are met.

JUDGMENT :

VIVEK KUMAR SINGH, J.

1. Heard Sri Omar Zamin, learned counsel for the applicant and Sri O.N. Mishra, learned A.G.A. for the State.

2. Present application under Section 528 B.N.S.S. has been preferred for quashing the charge-sheet No.872 of 2020 dated 15.09.2020, cognizance/ summoning order dated 1.4.2024 as well as entire proceeding of Case No.904 of 2024, arising out of Case Crime No.805 of 2020, under Sections 379 , 411 I.P.C., Rules 3, 57, 7 of U.P. Minor Minerals (Concession) Rules, 1963 and Sections 4 , 21 of U.P. Mines and Minerals (Development and Regulation) Act, 1957, Police Station Naini, District Prayagraj, pending in the court of Additional Chief Judicial Magistrate-15, Prayagraj.

3. The brief facts of the case are that an FIR was lodged by the first informant, Yogesh Shukla, against the applicant and two others on 18.08.2020, registered as Case Crime No.805 of 2020, under Section 379 IPC , Sections 4 / 21 of U.P. Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'Act, 1957'), and Rules 3/7/57 of U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as 'Rules, 1963'). As per version of the FIR, the first informant, along with Brij Bali Singh, went to the place of incident found 155 cubic meters sand and 50 cubic meters gitti lying on Khata No.391, Arazi no.136, area 0.103 hectare. Further, the FIR narrates that the said property belongs to the Allahabad Development Authority, and the Lekhpal submitted a report stating that Arshad, Firoz, and Mojeeb Khan were using the place for selling the sand.

4. After registration of the FIR, the Investigating Officer investigated the matter and recorded the statement of first informant, Lekhpal, Brij Bali Singh, and other witnesses. During the course of investigation, Section 411 IPC was added, and thereafter the Investigating Officer submitted a charge sheet on 15.09.2020 under Sections 379 and 411 , Sections 4 /21 of the Act, 1957, and Rules 3/7/57 of the Rules, 1963. The learned Magistrate, in his wisdom, did not take cognizance of the offences, under Sections 4 / 21 of the Act, 1957 and Rules 3/7/57 of the Rules, 1963 in view of judgment passed by the Hon'ble Supreme Court and he took cognizance under and 411 only vide his order dated 01.04.2024, which is under challenge by the applicant.

5. It is submitted by learned counsel for the applicant that an FIR was lodged against the applicant under Section 379 IPC , Sections 4 /21 of the Act, 1957 and Rules 3/7/ 57 of Rules, 1963. After due investigation, the Investigating Officer submitted the charge-sheet in Sections 379 & 411 , Sections 4 / 21 of Act, 1957 and Rules 3/7/57 of Rules, 1963. However, the learned Magistrate took cognizance only under & 411 and did not take cognizance under Sections 4 / 21 of Act, 1957 or Rules 3/7/ 57 of Rules, 1963.

6. It is submitted that the learned Magistrate committed gross illegality in not accepting the charge-sheet in toto. It is also submitted that no offence under Sections 379 and 411 of the IPC is made out against the applicant, as it has not been identified whose property was allegedly stolen. Therefore, the essential ingredients constituting the offence of theft are not made out. It is further submitted that the applicant is an old person having no previous criminal antecedent. Therefore, it is prayed that the charge-sheet dated 15.09.2020, the cognizance order dated 01.04.2024, and the entire proceedings arising therefrom be quashed.

7. Per contra, learned A.G.A. vehemently opposed the prayer and submitted that the