Neutral Citation No. - 2025:AHC:135576 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 27955 of 2025 Applicant :- Sanjay Kharbanda Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rishabh Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Rishabh Kumar, learned counsel for applicant and learned AGA for the State. 2. Present application has been preferred with the prayer to quash charge sheet no. 233/2014 dated 10.07.2014 and cognizance/summoning order dated 17.08.2017 passed by learned Additional Chief Judicial Magistrate, Court no. 2, Allahabad as well as entire proceeding of Case no. 2334/2017 (State vs. Nafees and others) arising out of Case Crime no. 374/2014 under sections 4/21 Mines and Minerals Act, PS- Naini, District Allahabad pending in court of learned Additional Chief Judicial Magistrate, Court no. 9, Allahabad. 3. Learned counsel for applicant submitted that FIR has been lodged by opposite party no. 2/Mines Inspector, Prayagraj against two named and one unknown accused under sections 4/21 of the Mines and Minerals Act, 1957. After concluding the investigation, concerned Investigating Officer submitted impugned charge sheet dated 10.07.2014 under Section 4/21 of the Act of 1957 against applicant along with two other accused persons, without assigning any role to applicant whereupon learned Magistrate concerned took cognizance vide impugned order dated 17.08.2017 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 17.08.2017 itself and by bare perusal of the cognizance order dated 17.08.2017, 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. 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, impugned cognizance order dated 17.08.2017 is hereby quashed and consequential proceeding in pursuance to the above cognizance order dated 17.08.2017 is also quashed only in respect of applicant namely Sanjay Kharbanda. 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 :- 11.8.2025 Shaswat Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad