Neutral Citation No. - 2025:AHC:128683 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 9381 of 2025 Applicant :- Vivek Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raj Kishor Pandey,Satya Prakash Pandey Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard learned counsel for applicant and learned AGA for the State. 2. Present application has been preferred with the prayer to quash the entire criminal proceedings of Case No.42371 of 2024 (CNR No. UPHM040469602024) (State vs. Vivek Srivastava and others) arising out of Case Crime No.90 of 2024 under Section 379 IPC, Section 3(1)/58 of the Uttar Pradesh Minor Minerals (Concession) Rules, 2021, Section 4/21 of the Mines and Minerals (Development & Regulation) Act, 1957, Police Station Chikasi, District Hamirpur and the chargesheet No.127 of 2024 dated 02.10.2024 as well as the cognizance/summoning order dated 02.10.2024, pending in the Court of Chief Judicial Magistrate, Hamirpur. 3. Learned counsel for applicant submitted that FIR has been lodged by opposite party no. 2 namely Pankaj Kumar, Mines Inspector, Query Office, Collecterate, Kotwali Nagar, Hamirpur against the applicant for the offence under sections 4/21 of the Mines and Minerals Act, 1957. After concluding the investigation, concerned Investigating Officer submitted impugned charge sheet dated 02.10.2024 under Section 4/21 of the Act of 1957 whereupon learned Chief Judicial Magistrate concerned took cognizance vide impugned order dated 30.10.2024 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under Section 4/21 of the Act of 1957. 4. Learned counsel for applicant challenged the entire proceeding on the ground that admittedly the Act of 1957 is special act and Section 22 of the said Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no court shall take cognizance except upon complaint made in writing by a person authorized in this behalf by Central Government or State Government. For substantiating his argument, learned counsel for applicant relied upon judgment rendered by Hon'ble Apex Court in case of Jayant and others vs. State of Madhya Pradesh reported in (2021) 2 SCC 670 wherein it has been observed that even if the charge sheet is filed by the police after the investigation then for the offence under the Indian Penal Code, learned Magistrate can take cognizance but for the offence under the Act, 1957, learned Magistrate cannot take cognizance on the basis of that charge sheet and it is further observed that the Magistrate can take cognizance only when the complaint is filed by the authorized officer along with that charge sheet for the offence under the Act, 1957. He also relied upon judgment rendered by co-ordinate Bench of this Court passed on dated 14.05.2024 in Application u/s 482 no. 11544 of 2019 (Ajay Kumar vs. State of U.P. and Anr.). 5. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition. 6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, it transpires that in pursuance to judgment rendered by Hon'ble Apex Court in case of Jayant and others (supra) as well as by this Court in Ajay Kumar (supra) since it is apparent that over the charge sheet the cognizance has been taken up by learned concerned court only in pursuance to Section 4/21 of Mines and Minerals Act, 1957 on dated 30.10.2024 itself and by bare perusal of the cognizance order dated 30.10.2024, it is crystal clear that there is hardly any section of IPC/BNSS in which cognizance has been taken up by learned court concerned and as such the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra). 7. Since the instant matter has been argued by learned counsel appearing for applicant only on the basis of legal issues, especially relying upon the judgment of Hon'ble Apex Court, there is no occasion available with the prosecution to continue and pursue the matter arising out of Case Crime no. 90/2024 and the impugned cognizance order dated 30.10.2024 is hereby quashed and consequential proceeding in pursuance to the above cognizance order dated 30.10.2024 is also quashed. 8. The instant petition stands allowed accordingly. 9. However, it is made clear that above mentioned direction will not preclude the authorities concerned to proceed afresh against the applicant, if required in pursuance to procedure available at law. Order Date :- 29.7.2025 Rakesh Digitally signed by :- RAKESH SINGH High Court of Judicature at Allahabad