2025:HHC:27072 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 387 of 2022. Reserved on: 30.07.2024 Date of Decision:11.08.2025 Govinder Singh & Ors. ...Petitioners Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. Deepak Kaushal, Senior Advocate, with Mr. Aditya Thakur, Advocate. For the Respondent/State : Mr. Ajit Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The petitioners have filed the present petition for quashing of the order dated 09.03.2022 passed by learned Additional Chief Judicial Magistrate Nurpur, District Kangra, H.P. (learned Trial Court) vide which the charges were framed against the petitioners (accused before the learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:27072 ) 2. Briefly stated, the facts giving rise to the present petition are that the police filed a charge-sheet against the petitioners for the commission of offences punishable under Sections 447 and 506 read with Section 34 of Indian Penal Code (in short “IPC”) and Section 21(iv) of Mines and Minerals (Regulation and Development) Act (in short “Mining Act”). It was asserted that the informants Harbans Singh, Angrez Singh, Balwant Singh, Ranvir Singh, Jagdev Singh, Rajesh Pal, Balvir Singh, Ramesh Singh, Kartar Singh, Anib Singh, Ajayab Singh and Rashpal Singh made a complaint to the police that owners of the stone crushers were carrying out mining activities in Shamlat Deh Land. Whenever the crusher owners were requested not to do so, they threatened the informants with dire consequences. The police registered the FIR and went to the spot. The police carried out an investigation and filed a charge sheet before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, the learned Trial Court framed the charges against them for the commission of offences punishable under Section 447 and 506 read with Section 34 of the IPC and Section 21(iv) of the Mining Act. 3 2025:HHC:27072 ) 4. Being aggrieved by the order of framing charges, the accused filed the present petition, asserting that the offence punishable under Section 21(iv) of the Mining Act is non- cognizable. No cognisance could have been taken, and no charges could have been framed. As per the revenue record, Khasra No. 454 was in possession of one Bhai S/o Karim Baksh. The informants were not in possession, and the charges for the commission of an offence punishable under Section 447 could not have been framed. The charge-sheet does not show that the accused had threatened the informants, and no charges for the commission of an offence punishable under Section 506 of the IPC could have been framed. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 5. I have heard Mr. Deepak Kaushal, learned Senior Counsel, assisted by Mr. Aditya Thakur, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 6. Mr. Deepak Kaushal, learned Senior Counsel for the petitioner, submitted that Section 22 of the Mining Act prevents 4 2025:HHC:27072 ) the Court from taking cognisance of the commission of an offence punishable under Section 21 of the Mining Act. Learned the Trial Court erred in taking cognisance and framing the charges. Khasra No. 454 is in possession of Bhai S/o Shri Karim Baksh and not in the informants’ possession. No charges for the commission of an offence punishable under Section 447 of the IPC could have been framed. No evidence was collected to prove that the accused had threatened the informant. Learned Trial Court erred in framing the charges for the commission of an offence punishable under Section 506 of the IPC. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. He relied upon the judgments of this Court in Shri Neeraj Naiyar & Ors. Vs. State of H.P. & Anr. [Cr. MMO No.163 of 2009 & Cr. MP No. 122 of 2016, decided on 07.12.2016, Judgment of Delhi High Court in Jagdish Kapila Vs. Raj Kumar & Anr. [CRL. REV. P. 536/2015, decided on 21.05.2019], Judgment of High Court of Karnataka at Bengaluru, in Sri Shivaswamy & Ors. Vs. The State of Karnataka & Anr. [Criminal Petition No. 2776 of 2022, decided on 08.07.2022], Judgment of the High Court of Kerala in Biju Vs. State of Kerala [ Crl. M.C. No. 6886 of 2015, decided on 25.11.2015, and Judgment 5 2025:HHC:27072 ) of Hon’ble Supreme Court in State (NCT of Delhi) Vs. Sanjay and batch matters [(2014) 9 SCC 772)], in support of his submissions. 7. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the police are competent to investigate the offences punishable under various provisions of the IPC. The learned Trial Court was justified in framing the charges for the commission of offences under the IPC. He relied upon the judgment of this Court in Baldev Singh Saini v. State of H.P. [2024:HHC:6471], in support of his submission. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. 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 ingredients of constituting the offences punishable under the Mining Act and IPC are different. The contravention of the terms and conditions of the mining lease or doing mining activities in violation of Section 4 of the Act is punishable under Section 21 of the Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, amounts to theft. 6 2025:HHC:27072 ) Therefore, there is no bar to taking out the proceedings under the IPC and the Mining Act. The police can file a charge sheet for the commission of an offence punishable under Section 379 of the IPC, and the Mining Authorities can file a complaint for the commission of an offence punishable under Section 21 of the Mining Act. 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 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 7 2025:HHC:27072 ) 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 cognizance 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 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.” 10. 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 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 8 2025:HHC:27072 ) 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 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 9 2025:HHC:27072 ) 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. 11. 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, but it can take cognisance of the offence punishable under the IPC based on such a report. 12. A similar view was taken in Manjunatha, Sapna and Biju(supra). 13. In the present case, it was specifically asserted in the complaint that the owner of the stone crushers forcibly carried 10 2025:HHC:27072 ) out the mining activities despite the protests of the informants. A demarcation was conducted, and it was found after the demarcation that mining activities were carried out in the land of Dharam Singh bearing Khasra No. 493. The mining activities were also found in Khasra No. 489/2 and 455/1, which are owned by Shamlat Deh. The informants were the owners of the land in Shamlat Deh, being proprietors of the village. They asserted that the mining activity was carried out without their consent, which is to be accepted as correct at this stage. The accused had not taken any consent from the Government, which is the owner of the minor minerals, for mining activities; therefore, prima facie, an offence punishable under Section 379 of the IPC was made out by removing the stones owned by the State from the land in possession of Shamlat Deh. 14. The informants also stated that they had requested the accused not to carry out any mining activity, but they continued the mining activity despite the requests. The report of the demarcation shows that the mining activity was carried out in the land owned by Shamlat Deh, which is owned by the proprietary body of the village; therefore, the allegations in the complaint showed the commission of the offence punishable 11 2025:HHC:27072 ) under Section 447 of the IPC. The judgments in Neeraj Naiyar (supra) and Jagdish Kapila (supra) will not apply to the present case because the informant’s in these cases were not in possession of the land. 15. The informants also stated that the accused also threatened to kill them. They mentioned a telephone number xxxx009. This number was found to be owned by Ranjit Singh, one of the accused. The call detail record has also been collected. The allegation regarding the threat to kill a person constitutes a commission of an offence punishable under Section 506 of the IPC. 16. It was submitted that the mining activity was carried out in the land bearing No. 454, which is owned by Bhai S/o Karim Baksh as per the revenue record, which is apparent from the charges framed by the learned Trial Court. When the report of the demarcation shows that the recent mining activity was found in Khasra No. 493, 489/2 and 455/1, the mention of Khasra No. 454 by the learned Trial Court is a clerical error and will not help the petitioners. 12 2025:HHC:27072 ) 17. Therefore, the learned Trial Court erred in framing the charges for the commission of an offence punishable under Section 21(iv) of the Mining Act, and the part of the charge cannot be sustained. However, the learned Trial Court was within its jurisdiction to frame the charges for the commission of offences punishable under Sections 447 and 506 read with Section 34 of the IPC. Since the police did not file the charge- sheet under Section 379 of the IPC, therefore, this aspect was not considered by the learned Trial Court. 18. In view of the above, the present petition is partly allowed and the charge framed by the learned Trial Court for the commission of an offence punishable under Section 21(iv) of the Mining Act is ordered to be set aside. 19. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 11th August, 2025 (Shamsh Tabrez)