HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ****

Date of Decision: 28.02.2025 ****

Zorawar Singh ... Petitioner VS.

State of Punjab ... Respondent ****

CORAM: HON’BLE MR.JUSTICE SANDEEP MOUDGIL ****

Present: Mr. Rishav Jain, Advocate and Mr. Kanish Jindal, Advocate for the petitioner ****

Sandeep Moudgil, J. (Oral)

(1). This petition under Section 528 BNSS has been filed by the petitioners with a prayer to quash the FIR No.14 dated 21.01.2022 under Section 379 IPC and Section 21 of Mines and Minerals (Development and Regulation) Act, 1957.

(2). Learned counsel for the petitioner contends that the petitioner was not caught at the spot as he was not driving the tractor and has been named in the FIR since the said tractor was registered in the name of the petitioner and a perusal of the FIR itself would show that the police did not witness any illegal mining at the spot.

(3). It is vehemently argued that Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (in short, the MMDR Act) specifically provides that no Court can take cognizance of an offence under this Act, other than on a written complaint to the Court by the authorized officer, as such, the criminal proceedings initiated are nothing but an abuse of process of law inasmuch as Section 41 IPC read with Section 4(2) CrPC provides that all offences under any other law are to be investigated, inquired into and otherwise dealt with in accordance with the provisions of the said 'special law' in so far as they are not repugnant to the Code and since the provisions of IPC are expressly excluded, the prosecution under the MMDR Act can only be launched by way of a complaint and not by way of an FIR as has been wrongly done in the present case. Reliance has been placed on Kulwant Kaur vs. State of Punjab & Anr. CRM-M-49618-2017 decided on

15.03.2024.

(4). Heard learned counsel for the petitioner.

(5). The moot point for consideration arise before this Court as to the legality of the FIR in cases involving theft and illegal mining in view of express bar provided under Section 22 of the MMDR Act, in terms whereof, the provisions of Indian Penal Code are expressly excluded?

(6). Before proceeding further it would be appropriate to take note of Section 22 of the MMDR Act, 1952, which is quoted as under:-

“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 the State Government.”

(7). The Apex Court in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 dwelled upon the broader aspect and took recourse to Articles 48-A and 51-A of the Constitution of India which obligates all concerned, including the Central and the State Governments, to conserve, protect and not waste such valuable resources and improve the environment and safeguard the forests and wild life of the country and on a comparative reading of Section 22-A of MMDR vis-à-vis the constitutional mandate, the Supreme Court authoritatively held that the provision under the MMDR is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.

The relevant portion of the said report reads as under:-

72. 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 compl