1. Heard learned counsel for the petitioner and learned A.G.A. for the State.

2. The instant writ petition seeks quashing of the FIR dated 21.05.2023 giving rise to Case Crime No.177 of 2023, under Sections 379 I.P.C. & Sections 3(1), 58, 72(1) of the U.P. Minor Mineral (Concession) Rules, 2021, Sections 4, 21 of Mines and Minerals (Regulation of Development) Act 1957 and Sections 3, 4 of the Prevention of Damage to Public Property Act, 1984 at Police Station Sarai Akil, District Kaushambi.

3. The contention of learned counsel for the petitioner is that no offence is disclosed from the allegations in the FIR.

4. It is next contended that no mining was being carried out on the spot at the time of the surprise inspection carried out by the S.D.M., Chail, the Circle Officer, Chail and the Mining Officer, Chail. In any case, the offences are compoundable. Moreover, Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Act, 1957”) clearly provides 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 authorised in this behalf by the Central Government or the State Government.” Therefore, the first information report could not be lodged.

5. It is next contended that Rule 72(1) of the U.P. Minor Mineral (Concession) Rules, 2021 (hereinafter referred to as “the Rules, 2021”) only provides that “a holder of a mining lease or permit or his agent is required to issue a pass in Form MM-1I or Form e-MM-11 to any person carrying, a consignment of minor mineral by a vehicle, animal or any other mode of transport.”

6. He has also referred to following Rules to support this contention, namely:-

"(i) Section 3(1) of the Rules permits “mining operations in an area to which which the rules apply only in accordance with the terms and conditions of a mining lease or mining permit”

(ii) Section 58 of the Rules provides the “penalties or contravention of the provisions of rule 3. It lays down that on conviction for contravention of provisions of Rule 3, imprisonment of either description for a term which may extend up to five years or with fine which shall not be less than of 2 lacs rupees per hectare and which may extend to five lacs rupees per hectare of the area, or with both.”

and

(iii) Rule 76 of the Rules which provides that “No court shall take cognizance of any offence punishable under these rules except on a complaint in writing made by the District Officer or any officer authorised by him in this behalf.”

7. Learned AGA has opposed the writ petition and has stated that the FIR also alleges an offence under the Indian Penal Code namely Section 379 IPC, which is a cognizable offence. Therefore, the FIR cannot be quashed. He has also relied upon the decision of the Apex Court in Jayant etc. Vs. State of Madhya Pradesh, to submit that there is no bar to the lodging of an FIR even where cognizance is barred except on a complaint in writing by the duly authorized officer for contravention of the provisions of the U.P. Minor Minerals (Concession) Rules, 2021 (hereinafter referred to as “the Rules, 2021”).

8. We have considered the submissions made by learned counsel for the parties and perused the record.

9. The FIR alleges that during a surprise inspection held on the intervening night of 20/21.05.2023, it was discovered that mining had been carried out in an area of 40 m x 58 meters x .7 meter beyond the area, which was subject matter of a lease in favour of M/S Maa Vaishno Traders, whose proprietor was Jagdish Prasad, the petitioner and that the same amounted to theft of a minor mineral. The mined material had also been transported contrary to law.

10. The offences alleged against the petitioner or under four enactments, The Indian Penal Code, The Prevention of Damage to Public Property Act, 1984, The Mines and Minerals (Development and Regulation) Act, 1957 and the U.P. Minor Minerals (Concession) Rules, 2021.

11. In so far as the offences under the provisions of the IPC and provisions of Prevention of Damage to Public Property Act, 1984 are concerned, these offences are cognizable offences and the FIR to that extent could be lodged and it contains the ingredients of a cognizable offence.

12. It is no doubt true that insofar as the offences under the U.P. Minor Minerals (Concession) Rules, 2021 are concerned, the same, in view of Rule 76 are non cognizable and cognizance thereof, can be taken only on the basis of a complaint in writing by an officer authorized to file such complaint.

13. The position as far as the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Act, 1957”) is concerned is slightly different.

14. The allegation in the FIR is that mining has been carried out in an area beyond the lease granted to the petitioner. It is therefore, an offence under Section 4(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Act, 1957”), which reads as follows:-

“Section 4. Prospecting or mining operations to be under licence or lease.

(1) [No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder]:

Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.

Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Explorations and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013) and any such entity that may be notified for this purpose by the Central Government.”

(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(2) No [“reconnaissance permit, prospecting licence or mining lease] shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under section 18, [“undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease.”

15. The penalties for contravention of Section 4(1) or 4(1-A) are provided in Section 21 of the Act, 1957. Sub-section 1 of Section 21 is relevant and reads as follows:-

Whoever contravenes the provisions of sub-section (1) of sub-section (1-A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with find may extend to five lakh rupees per hectare of the area.

16. Even more importantly sub-section 6 of Section 21 provides that “notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of the 1974), an offence under sub-section 1 shall be cognizable.”

17. This subsection 6 has been incorporated by Act No.37 of 1986 w.e.f. 10.02.1987.

18. Section 22 of this Act of 1957 provides that no Court shall take cognizance of any offence punishable under this Act or any Rule therein except on a complaint in writing by a person authorized in this behalf by the Central Government or State Government.

19. It would be relevant to note that Section 22 is a provision, which has existed in the Act since its promulgation in the year 1957. Sub-section 6 of Section 21, noticed above, has been incorporated w.e.f. 10.02.1987.

20. Under the circumstances, therefore, Section 22(6) is an exception to the general provision mentioned Section 22, regarding offence under the Mines and Minerals (Development and Regulation) Act, 1957. The offences alleged under the impugned FIR are under Section 4(1) and 4(1-A) of the Act 1957. The same therefore, are cognizable offences in view of Section 6 of Section 21. Therefore, the petitioner cannot derive any benefit from Section 22 of the Act and an FIR with regard to an offence under Section 4(1) or 4(1-A) of the Act can be lodged, as they are cognizable offences in view of Section 21(6).

21. Insofar as the offences under the U.P. Minor Minerals (Concession) Rules, 2021 are concerned, the field would be governed by the ratio in the case of Jayant etc. (supra). In the concluding part of this judgment, the Apex Court has summarized its conclusions in 5 points. For the purposes of the instant case, point (iv) is relevant and reads as follows:-

“(iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In charge/SHO of the police station to register/lodge the crime −charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In charge of the police −charge/SHO of the police station to register/lodge the crime station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned 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 Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.”

22. The impugned FIR therefore, could be lodged also as regards to offences under the U.P. Minor Minerals (Concession) Rules, 2021, which are governed by Section 22 of the Act.

23. Under the circumstances, we are constrained to hold that the submissions made by learned counsel for the petitioner lack substance. The FIR cannot be quashed for the reasons given above because the offences alleged against the petitioner are such regarding which an FIR could have been lodged as also because the allegation therein constitute offences.

24. The writ petition, therefore, fails and is dismissed.