2025:HHC:28248 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 1171 of 2022 Reserved on: 5.8.2025 Date of Decision: 21.8.2025 Shamsher Singh and another ...Petitioners Versus State of H.P. and another ...Respondents Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. Shrawan Dogra, Senior Advocate, with Mr. Tejasvi Dogra, Advocate. For the Respondents : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioners have filed the present petition for quashing of FIR No. 39 of 2022, dated 9.5.2022, registered at Police Station, Sujanpur, District Hamirpur, H.P. for the commission of offences punishable under Sections 379, 120-B of the Indian Penal Code (IPC) and Sections 21 and 22 of the Mines 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:28248 and Minerals (Regulation and Development) Act, 1957 (Mining Act). 2. Briefly stated, the facts giving rise to the present petition are that the police filed a charge sheet before the learned Trial Court for the commission of offences punishable under Sections 379 and 120B of the IPC and Section 21 read with Section 22 of the Mining Act. It was asserted that the police party was on patrolling duty on 9.5.2022. They received a secret information that illegal mining activity was being carried out in the Beas River with the help of excavators, the material was being carried in the tipper to Soma Stone Crusher, and in case of a raid, a huge quantity of mining material could be recovered. The police associated Vicky Rana, prepared a rukka and sent it to the Police Station. The police party went to the spot and found two excavators and three tippers carrying out the mining activity. Rakesh Kumar, Mukesh Kumar, Abhilash, Kishore Kumar, Ravi Kumar, and Shamsher Singh were (petitioner No.1) found on the spot. Kushal Kumar, petitioner No.2, was found to be the owner of Soma Stone Crusher. He had executed a General Power of Attorney in favour of petitioner No.1, Shamsher Singh. Kushal Kumar (petitioner No.2) is the owner of the excavators 3 2025:HHC:28248 bearing registration No. HP56-0125 and HP-56A-2681, and the tipper bearing registration No. HP-56A-3088. These vehicles were released by petitioner No.1, Shamsher Singh based on a Special Power of Attorney executed by petitioner No.2, Kushal Kumar in his favour after the incident. The fact that Kushal Kumar is the owner of the crusher and he had executed a Special Power of Attorney in favour of Shamsher Singh showed that Kushal Kumar and Shamsher Singh had conspired in the illegal mining. Demarcation was obtained, and the mining activity was found to have been carried out in Khasra No.1050. Hence, a charge sheet was filed before the learned Trial Court to take action as per the law. 3. Being aggrieved by the registration of the FIR and filing of the charge sheet, the petitioners have filed the present petition, asserting that they were not present on the spot. They have a valid mining lease in their favour of 22 hectares. The petitioners had also produced the documents before the Investigating Officer, but they were not taken on record. Section 34 of IPC was removed after it was found that the petitioners were not present on the spot. Section 22 of the Mining Act provides that a Magistrate shall not take cognisance of the 4 2025:HHC:28248 commission of an offence punishable under Section 21 of the Mining Act except upon a complaint made by the authorised officer. No complaint was filed in the present case, and the learned Trial Court erred in taking cognisance. Therefore, it was prayed that the present petition be allowed, and the FIR and summoning order passed by the learned Trial Court be quashed. 4. Petition is opposed by filing a reply by respondent No.1, taking a preliminary objection regarding the lack of maintainability. It was asserted that the petitioners, along with the co-accused, indulged in illegal mining activity. The minerals were severed from the river bed, which constituted a theft. The petitioner No.2 obtained the financial benefits being the owner of Soma Stone Crusher. He executed a Power of Attorney in favour of petitioner No.1. The drivers of the excavators could not produce any permit to carry out the mining activities. The drivers revealed that the mining material was to be carried to Soma Stone Crusher. The charge sheet has been filed before the Court, and the learned Trial Court is seized of the matter. Therefore, it was prayed that the present petition be dismissed. 5 2025:HHC:28248 5. I have heard Mr. Shrawan Dogra, learned Senior Counsel, assisted by Mr. Tejasvi Dogra, learned counsel for the petitioners and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 6. Mr. Shrawan Dogra, learned Senior Counsel for the petitioners/accused, submitted that Section 22 of the Mining Act provides that no Court shall take cognisance of the commission of an offence punishable under Section 21 of the Mining Act without a complaint of the competent officer. No complaint was filed in the present case, and the learned Trial Court erred in taking cognisance of the matter. The petitioners were admittedly not present on the spot, and they cannot be held to be guilty merely because the petitioner No.2 is the owner of Soma Stone Crusher, and he had executed a Special Power of Attorney in favour of the petitioner No.1 after the incident. The allegations in the charge sheet, even if taken to be correct, do not show the commission of any cognizable offence. Therefore, he prayed that the present petition be allowed and the FIR and consequential proceedings arising out of the FIR be quashed. 6 2025:HHC:28248 7. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the police detected illegal mining activity being carried out in the river bed. The mining material was to be carried to Soma Stone Crusher as per the interrogation of the drivers apprehended on the spot. This showed the involvement of the petitioners. The truthfulness or otherwise of the allegations is not to be seen at this stage. Therefore, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 9. The law relating to quashing of FIR was explained by the Hon’ble Supreme Court in B.N. John v. State of U.P., 2025 SCC OnLine SC 7 as under: - “7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarised some of the principles under which FIR/complaints/criminal cases could be quashed in the following words: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this 7 2025:HHC:28248 Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 8 2025:HHC:28248 (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable based on which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a private and personal grudge.” (emphasis added) 8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case. In clause (1), it has been mentioned that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed. As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed. Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal 9 2025:HHC:28248 proceedings are instituted, such proceedings can be quashed.” 10. This position was reiterated in Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed: “8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice. 9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out; (iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335) 11. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10 2025:HHC:28248 12. It was laid down by the Hon’ble Supreme Court in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772: (2014) 5 SCC (Cri) 437: 2014 SCC OnLine SC 672 that the Court cannot take the cognizance of the commission of an offence punishable under Section 21 of the Mining Act without the complaint made by the authorized officer. However, the police can file a charge sheet for the commission of an offence punishable under Section 379 of the IPC. It was observed: “72. From a close reading of the provisions of the 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, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for the commission of an offence under the MMDR Act on the basis of the 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 persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction 11 2025:HHC:28248 for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of an offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognisance of the said offence without awaiting the receipt of a complaint that may be filed by the authorised officer for taking cognisance in respect of the violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly.” 13. This judgment was followed in Kanwar Pal Singh v. State of U.P., (2020) 14 SCC 331: (2020) 4 SCC (Cri) 815: 2019 SCC OnLine SC 1652, wherein it was observed: 11. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Co. Ltd. [Belsund Sugar Co. Ltd. v. State of Bihar, (1999) 9 SCC 620], Sharat Babu Digumarti [Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18 : (2017) 1 SCC (Cri) 628] and Suresh Nanda [Suresh Nanda v. CBI, (2008) 3 SCC 674 : (2008) 2 SCC (Cri) 121] to contend that where there is a special Act dealing with a special subject, resort cannot be taken to a general Act. The said submission has no force in view of the ratio in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] as quoted above which 12 2025:HHC:28248 specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the MMDR Act, 1957 is different from the offence punishable under Section 379 IPC. Thus, they are two “different” and not the “same offence”. It would be relevant to state here that the Delhi High Court in its decision in Sanjay v. State [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594], which was impugned in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437], had accepted an identical argument to hold that once an offence is punishable under Section 21 of the MMDR Act, 1957, the offence would not be punishable under Section 379 IPC. This reasoning was rejected by this Court, and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected. 12. We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 IPC, as sand is an immovable property as per Section 3(26) of the General Clauses Act. In the present case, sand had been excavated and was, thereupon, no longer an immovable property. The sand, on being excavated, would lose its attachment to the earth; ergo, it is a movable property or goods capable of being stolen. (See Explanation 1 to Section 378 IPC and Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772: (2014) 5 SCC (Cri) 437] as quoted above.) xxxxxx 15. We would again advert to the decision in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437], which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State [Seema Sarkar v. State, 1994 SCC OnLine Cal 277 : (1995) 1 Cal LT 95] wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under 13 2025:HHC:28248 Section 21(2) of the MMDR Act, 1957 and Section 379 IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the MMDR Act, 1957, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court, which had directed that the FIR should not be treated as registered under Section 379 IPC but only under Section 21 of the MMDR Act, 1957. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] after referring to Section 26 of the General Clauses Act and the meaning of the expression “same offence”, to observe that the offence under Section 21 read with Section 4 of the MMDR Act, 1957 and Section 379 IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4, which is an offence cognizable only under Section 21 of the MMDR Act, 1957 and not under any other law. There is no bar on the court from taking cognisance of the offence under Section 379 IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the MMDR Act, 1957, unlike Section 13(3)(iv) of the TOHO Act. 14. Thus, in view of the binding precedents of the Hon’ble Supreme Court, the Court cannot take cognisance of the commission of an offence punishable under Section 21 of the Mining Act on a police report, therefore, the cognizance taken by the learned Trial Court of the commission of an offence 14 2025:HHC:28248 punishable under Section 21 of the Mining Act on the police report is bad. 15. It is undisputed that the petitioners were not found on the spot. The petitioner No.2 is being arrayed as an accused because he is the owner of Soma Stone Crusher, and he had entered into a conspiracy with the co-accused. The charge sheet has been filed for the commission of an offence punishable under Section 120-B of IPC, for which evidence, direct or circumstantial, has to be led to show that there was a meeting of the mind of the accused. There is no such material in the charge sheet. The charge sheet has been filed based on the ownership of the stone crusher. Therefore, there is a force in the submission of Mr. Shrawan Dogra, learned Senior Advocate, that the allegations in the charge sheet, even if accepted to be correct, do not make out any case of the commission of an offence punishable under Section 120-B of IPC. 16. The petitioner No.1 was sought to be arrayed as an accused because petitioner No.2 had executed a Special Power of Attorney in his favour after the incident. Executing a Special Power of Attorney in favour of a person does not amount to any 15 2025:HHC:28248 offence. Further, the conspiracy has to be hatched before and not after the commission of the offence. Therefore, the mere execution of the Special Power of Attorney in favour of petitioner No.2 does not connect him with the commission of an offence punishable under Section 120-B of the IPC. 17. The petitioners were not present on the spot, and they had not carried out any excavation. Therefore, they cannot be held liable for the commission of an offence punishable under Section 379 of the IPC. 18. In view of the above, the present petition is allowed and the FIR No. 39 of 2022, dated 9.5.2022, registered at Police Station, Sujanpur, District Hamirpur, H.P. for the commission of offences punishable under Sections 379, 120-B of the Indian Penal Code (IPC) and under Sections 21 and 22 of the Mines Act and consequential proceedings arising out of the said FIR are ordered to be quashed qua the petitioners. 19. Petition stands disposed of in the above terms, so also pending applications, if any. 20. Parties are permitted to produce a copy of this judgment, downloaded from the webpage of the High Court of 16 2025:HHC:28248 Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist on the production of a certified copy, but if required, may verify passing of the order from the Website of the High Court. (Rakesh Kainthla) Judge 21st August 2025 (Chander)