Court No. - 79

Case :- APPLICATION U/S 482 No. - 20286 of 2021

Applicant :- Ibran @ Mohd Ibran

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Kunwar Mayank Singh,Subhash Chandra

Singh

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Singh,J.

Heard Shri Subhash Chandra Singh, learned counsel

for the applicant and Shri Abhijeet Mukherjee learned

State Law Officer for the State and perused the

material brought on record.

The present application has been filed with a prayer to

quash the charge sheet dated 06.07.2019, cognizance

order dated 28.09.2019 as well as entire proceedings

of Case No. 2353 of 2019 arising out of Case Crime

No. 343 of 2019, under Sections 379, 411 I.P.C. and

Section 4/21 of Mines and Minerals (Development and

Regulation) Act, 1957, P.S. Swar, District Rampur.

Learned counsel for the applicant submits that F.I.R.

No. 343 of 2019 was lodged by Varun Kumar, Lekhpal

on 20th May, 2019 under Sections 379, 411 I.P.C. and

Section 4/21 of Mines and Minerals (Development and

Regulation) Act, 1957, however, it is well settled that a

complaint had to be filed for the offences under the

Mines and Minerals (Development and Regulation) Act,

1957 (for short 'MMDR Act'). In support of his

submission, learned counsel for the applicant places

reliance on the decisions of the Hon'ble Supreme

Court in the case of State (NCT of Delhi) Vs.

Sanjay, (2014) 9 SCC 772 and Jayant Etc. Vs.

State of Madhya Pradesh (2021) 2 SCC 670 as

well as judgment and order of this Court passed in

Application u/s 482 No. 19576 of 2020 (Ram

Bahal Vs. State of U.P. & Anr.) decided on

20.09.2021.

Learned counsel appearing for the State vehemently

opposes the prayer of the applicant and submits that

there is no illegality in the order passed by the court

below.

I have considered the arguments advanced by the

learned counsel for the parties and gone through the

record.

The relevant portion of the order of the Hon'ble

Supreme Court in the case of State (NCT of Delhi)

Vs. Sanjay (supra) is quoted hereunder:

"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 complaint cannot

and shall not debar the police from taking action

against persons for committing theft of sand and

minerals in the manner mentioned above by

exercising power under the Code of Criminal Procedure

and submit a report before the Magistrate for taking

cognizance against such person. In other words, in a

case where there is a theft of sand and gravels from

the Government land, the police can register a case,

investigate the same and submit a final report under

Section 173 Cr.P.C. before a Magistrate having

jurisdiction for the purpose of taking cognizance as

provided in Section 190(1)(d) of the Code of Criminal

Procedure."

It is evident from the aforesaid decision that, in case,

mining activity is being done in violation of Section 4

of the Act, then it 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. At the initiation of proceeding for commission

of an offence under the MMDR Act, on the basis of

complaint, shall not debar the police