IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 9791 of 2018 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL ==========================================================

1 Whether Reporters of Local Papers may be allowed No

1	Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2	To be referred to the Reporter or not ?	No
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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BHARATSINH RAMSINH ZALA S/O SHRI RAMSINH ZALA Versus STATE OF GUJARAT ==========================================================

Appearance:

RAHUL SHARMA(8276) for the Applicant(s) No. 1 MS M D MEHTA, APP for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Date : 05/04/2022

ORAL JUDGMENT

1. Heard learned Advocate Mr. Rahul Sharma for the petitioner and learned APP Ms. M.D. Mehta for the respondent-State.

2. By way of this petition the petitioner prays for quashing and setting aside of the impugned order of the learned 2nd Additional Judicial Magistrate First Class, Limdi, District Surendranagar, dated 06.08.2018,

NEUTRAL CITATION

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respect of the Criminal Case No.225 of 2017, arising from the FIR being C.R. No.I- 73 of 2012 registered with Panshina Police Station, District Surendranagar, for the offence punishable under Section 379 of the Indian Penal Code and for the contravention of Rules 3, 5 and 6 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005.

3. Learned Advocate Mr. Sharma for the petitioner would submit that pursuant to the FIR, the Investigating Officer had submitted charge-sheet before the learned Judicial Magistrate First Class, Limdi, District Surendranagar on 05.10.2013 and whereas on 06.08.2018, the learned 2nd Additional Judicial Magistrate First Class, Limdi, had framed charges in respect of the Criminal Case No. 225 of 2017. Learned Advocate would submit that the present petition was preferred immediately after the framing of charges when summons were issued to the witnesses for their deposition. Learned Advocate would submit that the present petition is preferred in context of a legal bar to take cognizance of an offence and also in context of the fact that the present petitioner was holding a valid licence for mining and whereas the allegations in the FIR being that the petitioner having extracted the sand beyond the mining area, therefore an offence punishable under Section 379 of the IPC is alleged to have been committed. Learned Advocate would further draw the attention of this Court to Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 and would submit that the Section 22 inter alia states that 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 authorized in this behalf by the Central Government or the State Government. Insofar as the allegation of commission of offences under the Gujarat Mineral (Prevention of Illegal Mining and Storage) Rules, 2005 and the Mines and

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learned Advocate that since the Act itself envisages that the Magistrate would not be able to take cognizance of an offence, more particularly if it is not in the form as required under the Act, therefore according to learned Advocate Mr. Sharma, the impugned FIR insofar as the allegations of commission of offences under the Mines and Minerals (Development and Regulation) Act, 1957 is required to be interfered with. Learned Advocate would qualify his submission by stating that while the law in this regard which has been crystallized by decision of the Hon'ble Apex Court as wel

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