Semantic Analysis by spaCy
Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand)
Decided On : Apr-19-2010
Court : Uttaranchal
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Sulochana Devi W/O Dharmanand and ;subodh S/O Dharmanand', 'authreffered' => '', 'casename' => 'Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand)', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'State v. Dharmanand and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Uttaranchal', 'court_type' => 'HC', 'decidedon' => '2010-04-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Prafulla C. Pant, J.', 'judgement' => '<p style="text-align: justify;">Prafulla C. Pant, J.</p><p style="text-align: justify;">1. This revision is directed against the judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996, whereby said court has dismissed the appeal affirming the conviction recorded by the trial court (Chief Judicial Magistrate, Chamoli), in Criminal Case No. 496 of 1992, State v. Dharmanand and Ors. relating to offences punishable under Section 452/34 and 427/34 of I.P.C., Police Station Ukhimath, District Chamoli (now District Rudraprayag).</p><p style="text-align: justify;">2. Heard learned Counsel for the parties and perused the lower court record.</p><p style="text-align: justify;">3. Brief facts of the case are that complainant P.W. 1 Bhyuraj Singh, moved an application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), before the District Magistrate, Chamoli, on 26.02.1992, on which the District Magistrate directed the In-charge of police station Ukhimath to register and investigate the case. It is alleged in the first information report by the complainant P.W. 1 Bhyuraj Singh that he is resident of Village Badasu. He was constructing his new house in Village Phata in place of his old demolished house. When he had gone out on 25.02.1992, accused namely Dharmanand, Sulochana (wife of Dharmanand) and Subodh (son of Dharmanand) trespassed in his house, and destroyed the construction and took away the tins of the house. Under orders of the District Magistrate, passed under Section 156(3) of Cr.P.C., the police registered Crime No. 03 of 1992, relating to offences punishable under Section 452, 427, 504 and 506 of I.P.C. After investigation, the police submitted charge sheet (Ext. A-6) against the three revisionists, namely Dharmanand, his wife Sulochana and his son Subodh.</p><p style="text-align: justify;">4. The Chief Judicial Magistrate, after giving necessary copies to the accused, framed charge of offences punishable under Section 452/34, 427/34, 504/34 and 506/34 of I.P.C., on 29.04.1993, to which the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bhuraj Singh (complainant); P.W. 2 Rajendra Singh (relative of the complainant); P.W. 3 Inder Singh (tenant of the complainant); P.W. 4 Constable Balbir Singh and P.W. 5 Sub Inspector Janeshwar Singh. The evidence was put to the accused under Section 313 of Cr.P.C. in reply to which they alleged the same to be false. On behalf of the defence D.W. 1 Shivraj Singh; D.W. 2 Bachan Singh. D.W. 3 Sundar Singh and D.W. 4 Aditya Ram were examined. The trial court after hearing the parties, found all the three accused guilty of charge of offences punishable under Section 452/34 and 427/34 of I.P.C. The accused were acquitted of the charge of rest of the offences punishable under Section 504/34 and 506/34 of I.P.C. After hearing on sentence, each of the convicts were released under the Probation of Offenders Act, on executing bond for keeping good conduct for two years. Aggrieved by said judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, the convicts preferred Criminal Appeal No. 03 of 1996, before the Sessions Judge, Chamoli. Said court vide impugned judgment and order dated 31.08.1999, dismissed the appeal affirming the conviction of the revisionists. Hence, this revision was filed by the convicts before the Allahabad High court on 28.09.1999, where it was admitted on the next day i.e. 29.09.1999. This revision is received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.</p><p style="text-align: justify;">5. Learned Counsel for the revisionists argued that the District Magistrate is not empowered to pass any order under Section 156(3) of Cr.P.C., as such, entire proceedings based on that order are vitiated. In this connection, it is further argued that the conviction recorded and affirmed by the courts below is liable to be set aside.</p><p style="text-align: justify;">6. Sub-section (3) of Section 156 of Code of Criminal Procedure, 1973, provides that any Magistrate empowered under Section 190 to take cognizance of an offence, may order such an investigation as provided under Sub-section (1) of said Section. Sub-section (1) of Section 156 of Cr.P.C., provides that any officer in charge of police station may, with or without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction for the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. The question before this Court is whether, expression 'Any Magistrate' includes the District Magistrate, or not? To interpret said expression, this Court feels it just and proper to refer Section 3 and Section 190 of Cr.P.C. Section 190 of Cr.P.C. provides that any Magistrate of first class, and any Magistrate of the second class empowered, on receiving complaint constituting an offence, or a police report, or an information received otherwise may take cognizance of such offence. Clause (a) of Sub-section (1) of Section 3 of Cr.P.C., provides as under:</p><p style="text-align: justify;">3. Construction of references. - (1) In this Code,</p><p style="text-align: justify;">(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires,</p><p style="text-align: justify;">(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;</p><p style="text-align: justify;">(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;</p><p style="text-align: justify;">Analogous provision relating to the Magistrate of second class and Magistrate of first class are given in Clause (b) and Clause (c) of Sub-Section (1) of Section 3 of Cr.P.C. Reading of Section 3 makes it abundantly clear that since the word 'Magistrate' referred in Section 190 and Section 156 of Cr.P.C., refer to Judicial Magistrate, as such, District Magistrate was not competent to pass any order under Section 156(3) of Cr.P.C., under which the application was expressly moved, by the complainant. The District Magistrate could have passed such an order exercising the powers of the Judicial Magistrate if conferred on him. But, in the present case, it is nobody's case that the District Magistrate exercised any power of Judicial Magistrate conferred on him. On being asked by the District Magistrate, the police could have on its own motion registered the written report as first information report, but the District Magistrate had no power to exercise the powers under Section 156(3) of Cr.P.C. That being so, the entire proceedings of this case are based on an order without jurisdiction. Learned Sessions Judge has committed grave error of law in rejecting the contention of learned Counsel for the revisionists/appellants on this point.</p><p style="text-align: justify;">7. Apart from this, on the facts also the courts below have erred in law in rejecting the testimony of the witnesses examined on behalf of the defence in which they have proved that they were the rightful owners in possession of the property in question. Whether, they were actually owners or not is a different issue, but for the purposes of constituting an offence punishable under Section 452 of I.P.C., and one punishable under Section 427 of I.P.C., the mensrea required appears to be missing. That being so, this Court is of the view that the revisionists were entitled to be acquitted from the charge of offences punishable under Section 452/34</p><p style="text-align: justify;">8. For the reasons as discussed above, this revision is allowed. The impugned judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996; and judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, in Criminal Case No. 496 of 1992, are hereby set aside. The revisionists, namely Dharmanand, Sulochana and Subodh are acquitted of the charge of offences punishable under Section 452/34 and 427/34 of I.P.C. Lower court record be sent back.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'State of U.P. (Now State of Uttarakhand)', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '902620' ) ) $title_for_layout = 'Dharmanand S/O Late Mohananand, Vs. State of U.P. 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Lower' ), 'WORK_OF_ART' => array( (int) 0 => 'Criminal Case No', (int) 1 => 'Criminal Case No' ), 'CARDINAL' => array( (int) 0 => '496', (int) 1 => '427', (int) 2 => '504', (int) 3 => '506', (int) 4 => 'three', (int) 5 => '29.04.1993', (int) 6 => 'three', (int) 7 => 'three', (int) 8 => '427/34', (int) 9 => '04.07.1996', (int) 10 => '31.08.1999', (int) 11 => '28.09.1999', (int) 12 => '29.09.1999', (int) 13 => '3', (int) 14 => '1', (int) 15 => '1', (int) 16 => '1', (int) 17 => '1', (int) 18 => '1', (int) 19 => 'one', (int) 20 => '04.07.1996', (int) 21 => '496', (int) 22 => '427/34' ), 'FAC' => array( (int) 0 => 'District Rudraprayag).2' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1 Bhyuraj Singh', (int) 1 => 'P.W. 1 Bhyuraj Singh', (int) 2 => 'P.W. 1 Bhuraj Singh', (int) 3 => 'D.W. 1 Shivraj Singh' ), 'GPE' => array( (int) 0 => 'Cr', (int) 1 => 'P.C.', (int) 2 => 'Chamoli', (int) 3 => 'Village Phata', (int) 4 => 'Dharmanand', (int) 5 => 'Sulochana', (int) 6 => 'Cr', (int) 7 => 'P.C.', (int) 8 => 'Cr', (int) 9 => 'P.C.', (int) 10 => 'Cr', (int) 11 => 'P.C.', (int) 12 => 'Cr', (int) 13 => 'P.C.', (int) 14 => 'Cr', (int) 15 => 'P.C.', (int) 16 => 'P.C.', (int) 17 => 'Clause', (int) 18 => 'Cr', (int) 19 => 'P.C.', (int) 20 => 'Cr', (int) 21 => 'P.C.', (int) 22 => 'Cr', (int) 23 => 'P.C.', (int) 24 => 'Counsel', (int) 25 => 'Dharmanand', (int) 26 => 'Sulochana' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'second', (int) 3 => 'second', (int) 4 => 'first', (int) 5 => 'first' ), 'MONEY' => array( (int) 0 => '506/34 of I.P.C.', (int) 1 => '506/34 of I.P.C.' ) ) $desc = array( 'Judgement' => array( 'id' => '902620', 'acts' => '', 'appealno' => '', 'appellant' => 'Dharmanand S/O Late Mohananand, ;smt. Sulochana Devi W/O Dharmanand and ;subodh S/O Dharmanand', 'authreffered' => '', 'casename' => 'Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand)', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'State v. Dharmanand and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Uttaranchal', 'court_type' => 'HC', 'decidedon' => '2010-04-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Prafulla C. Pant, J.', 'judgement' => '<p style="text-align: justify;">Prafulla C. Pant, J.</p><p style="text-align: justify;">1. This revision is directed against the judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996, whereby said court has dismissed the appeal affirming the conviction recorded by the trial court (Chief Judicial Magistrate, Chamoli), in Criminal Case No. 496 of 1992, State v. Dharmanand and Ors. relating to offences punishable under Section 452/34 and 427/34 of I.P.C., Police Station Ukhimath, District Chamoli (now District Rudraprayag).</p><p style="text-align: justify;">2. Heard learned Counsel for the parties and perused the lower court record.</p><p style="text-align: justify;">3. Brief facts of the case are that complainant P.W. 1 Bhyuraj Singh, moved an application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), before the District Magistrate, Chamoli, on 26.02.1992, on which the District Magistrate directed the In-charge of police station Ukhimath to register and investigate the case. It is alleged in the first information report by the complainant P.W. 1 Bhyuraj Singh that he is resident of Village Badasu. He was constructing his new house in Village Phata in place of his old demolished house. When he had gone out on 25.02.1992, accused namely Dharmanand, Sulochana (wife of Dharmanand) and Subodh (son of Dharmanand) trespassed in his house, and destroyed the construction and took away the tins of the house. Under orders of the District Magistrate, passed under Section 156(3) of Cr.P.C., the police registered Crime No. 03 of 1992, relating to offences punishable under Section 452, 427, 504 and 506 of I.P.C. After investigation, the police submitted charge sheet (Ext. A-6) against the three revisionists, namely Dharmanand, his wife Sulochana and his son Subodh.</p><p style="text-align: justify;">4. The Chief Judicial Magistrate, after giving necessary copies to the accused, framed charge of offences punishable under Section 452/34, 427/34, 504/34 and 506/34 of I.P.C., on 29.04.1993, to which the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bhuraj Singh (complainant); P.W. 2 Rajendra Singh (relative of the complainant); P.W. 3 Inder Singh (tenant of the complainant); P.W. 4 Constable Balbir Singh and P.W. 5 Sub Inspector Janeshwar Singh. The evidence was put to the accused under Section 313 of Cr.P.C. in reply to which they alleged the same to be false. On behalf of the defence D.W. 1 Shivraj Singh; D.W. 2 Bachan Singh. D.W. 3 Sundar Singh and D.W. 4 Aditya Ram were examined. The trial court after hearing the parties, found all the three accused guilty of charge of offences punishable under Section 452/34 and 427/34 of I.P.C. The accused were acquitted of the charge of rest of the offences punishable under Section 504/34 and 506/34 of I.P.C. After hearing on sentence, each of the convicts were released under the Probation of Offenders Act, on executing bond for keeping good conduct for two years. Aggrieved by said judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, the convicts preferred Criminal Appeal No. 03 of 1996, before the Sessions Judge, Chamoli. Said court vide impugned judgment and order dated 31.08.1999, dismissed the appeal affirming the conviction of the revisionists. Hence, this revision was filed by the convicts before the Allahabad High court on 28.09.1999, where it was admitted on the next day i.e. 29.09.1999. This revision is received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.</p><p style="text-align: justify;">5. Learned Counsel for the revisionists argued that the District Magistrate is not empowered to pass any order under Section 156(3) of Cr.P.C., as such, entire proceedings based on that order are vitiated. In this connection, it is further argued that the conviction recorded and affirmed by the courts below is liable to be set aside.</p><p style="text-align: justify;">6. Sub-section (3) of Section 156 of Code of Criminal Procedure, 1973, provides that any Magistrate empowered under Section 190 to take cognizance of an offence, may order such an investigation as provided under Sub-section (1) of said Section. Sub-section (1) of Section 156 of Cr.P.C., provides that any officer in charge of police station may, with or without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction for the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. The question before this Court is whether, expression 'Any Magistrate' includes the District Magistrate, or not? To interpret said expression, this Court feels it just and proper to refer Section 3 and Section 190 of Cr.P.C. Section 190 of Cr.P.C. provides that any Magistrate of first class, and any Magistrate of the second class empowered, on receiving complaint constituting an offence, or a police report, or an information received otherwise may take cognizance of such offence. Clause (a) of Sub-section (1) of Section 3 of Cr.P.C., provides as under:</p><p style="text-align: justify;">3. Construction of references. - (1) In this Code,</p><p style="text-align: justify;">(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires,</p><p style="text-align: justify;">(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;</p><p style="text-align: justify;">(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;</p><p style="text-align: justify;">Analogous provision relating to the Magistrate of second class and Magistrate of first class are given in Clause (b) and Clause (c) of Sub-Section (1) of Section 3 of Cr.P.C. Reading of Section 3 makes it abundantly clear that since the word 'Magistrate' referred in Section 190 and Section 156 of Cr.P.C., refer to Judicial Magistrate, as such, District Magistrate was not competent to pass any order under Section 156(3) of Cr.P.C., under which the application was expressly moved, by the complainant. The District Magistrate could have passed such an order exercising the powers of the Judicial Magistrate if conferred on him. But, in the present case, it is nobody's case that the District Magistrate exercised any power of Judicial Magistrate conferred on him. On being asked by the District Magistrate, the police could have on its own motion registered the written report as first information report, but the District Magistrate had no power to exercise the powers under Section 156(3) of Cr.P.C. That being so, the entire proceedings of this case are based on an order without jurisdiction. Learned Sessions Judge has committed grave error of law in rejecting the contention of learned Counsel for the revisionists/appellants on this point.</p><p style="text-align: justify;">7. Apart from this, on the facts also the courts below have erred in law in rejecting the testimony of the witnesses examined on behalf of the defence in which they have proved that they were the rightful owners in possession of the property in question. Whether, they were actually owners or not is a different issue, but for the purposes of constituting an offence punishable under Section 452 of I.P.C., and one punishable under Section 427 of I.P.C., the mensrea required appears to be missing. That being so, this Court is of the view that the revisionists were entitled to be acquitted from the charge of offences punishable under Section 452/34</p><p style="text-align: justify;">8. For the reasons as discussed above, this revision is allowed. The impugned judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996; and judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, in Criminal Case No. 496 of 1992, are hereby set aside. The revisionists, namely Dharmanand, Sulochana and Subodh are acquitted of the charge of offences punishable under Section 452/34 and 427/34 of I.P.C. Lower court record be sent back.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'State of U.P. 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(Now State of Uttarakhand) Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 452/34', (int) 1 => 'Section 156(3', (int) 2 => 'Section 156(3', (int) 3 => 'Section 452', (int) 4 => 'Section 452/34', (int) 5 => 'Section 313', (int) 6 => 'Section 452/34', (int) 7 => 'Section 504/34', (int) 8 => 'the Probation of Offenders Act', (int) 9 => 'Section 35', (int) 10 => 'Central Act No', (int) 11 => 'Section 156(3', (int) 12 => 'Section 156 of Code of Criminal Procedure', (int) 13 => 'Section 190', (int) 14 => 'Section 156', (int) 15 => 'Chapter XIII', (int) 16 => 'Section 3 and Section 190 of Cr.', (int) 17 => 'Section 3 of Cr.', (int) 18 => 'Section 3 of Cr', (int) 19 => 'Section 3', (int) 20 => 'Section 190 and Section 156', (int) 21 => 'Section 156(3', (int) 22 => 'Section 156(3', (int) 23 => 'Section 452 of I.P.C.', (int) 24 => 'Section 427 of I.P.C.', (int) 25 => 'Section 452/348', (int) 26 => 'Section 452/34' ), 'PERSON' => array( (int) 0 => 'Prafulla C. Pant', (int) 1 => 'J.1', (int) 2 => 'Judicial Magistrate', (int) 3 => 'Ukhimath', (int) 4 => 'Sulochana', (int) 5 => 'Judicial Magistrate', (int) 6 => 'Janeshwar Singh', (int) 7 => 'D.W. 3 Sundar Singh', (int) 8 => 'Magistrate', (int) 9 => 'Magistrate' ), 'DATE' => array( (int) 0 => '31.08.1999', (int) 1 => '1992', (int) 2 => '427/34 of I.P.C.', (int) 3 => '1973', (int) 4 => '26.02.1992', (int) 5 => '25.02.1992', (int) 6 => '1992', (int) 7 => '427/34', (int) 8 => '504/34', (int) 9 => 'two years', (int) 10 => 'the next day', (int) 11 => '2000', (int) 12 => '1973', (int) 13 => '31.08.1999', (int) 14 => '1992' ), 'ORG' => array( (int) 0 => 'Chamoli', (int) 1 => 'Chamoli', (int) 2 => 'State', (int) 3 => 'District Chamoli', (int) 4 => 'the District Magistrate', (int) 5 => 'the District Magistrate', (int) 6 => 'Village Badasu', (int) 7 => 'Dharmanand', (int) 8 => 'Subodh', (int) 9 => 'Dharmanand', (int) 10 => 'the District Magistrate', (int) 11 => 'Dharmanand', (int) 12 => 'P.W. 2 Rajendra Singh', (int) 13 => 'P.W. 3', (int) 14 => 'P.W. 4 Constable', (int) 15 => 'P.W. 5 Sub Inspector', (int) 16 => 'D.W. 2 Bachan Singh', (int) 17 => 'D.W. 4 Aditya Ram', (int) 18 => 'the Chief Judicial Magistrate', (int) 19 => 'Chamoli', (int) 20 => 'Criminal Appeal No.', (int) 21 => 'Chamoli', (int) 22 => 'Allahabad', (int) 23 => 'Court', (int) 24 => 'Learned Counsel', (int) 25 => 'the District Magistrate', (int) 26 => 'Magistrate', (int) 27 => 'Magistrate', (int) 28 => 'Court', (int) 29 => 'Magistrate', (int) 30 => 'the District Magistrate', (int) 31 => 'Court', (int) 32 => 'Magistrate', (int) 33 => 'Magistrate', (int) 34 => 'Judicial', (int) 35 => 'Metropolitan', (int) 36 => 'Magistrate', (int) 37 => 'Magistrate', (int) 38 => 'Sub-Section', (int) 39 => 'Judicial Magistrate', (int) 40 => 'District Magistrate', (int) 41 => 'The District Magistrate', (int) 42 => 'the Judicial Magistrate', (int) 43 => 'the District Magistrate', (int) 44 => 'Judicial Magistrate', (int) 45 => 'the District Magistrate', (int) 46 => 'the District Magistrate', (int) 47 => 'Learned Sessions', (int) 48 => 'Court', (int) 49 => 'Chamoli', (int) 50 => 'the Chief Judicial Magistrate', (int) 51 => 'Chamoli', (int) 52 => 'Subodh', (int) 53 => 'I.P.C. Lower' ), 'WORK_OF_ART' => array( (int) 0 => 'Criminal Case No', (int) 1 => 'Criminal Case No' ), 'CARDINAL' => array( (int) 0 => '496', (int) 1 => '427', (int) 2 => '504', (int) 3 => '506', (int) 4 => 'three', (int) 5 => '29.04.1993', (int) 6 => 'three', (int) 7 => 'three', (int) 8 => '427/34', (int) 9 => '04.07.1996', (int) 10 => '31.08.1999', (int) 11 => '28.09.1999', (int) 12 => '29.09.1999', (int) 13 => '3', (int) 14 => '1', (int) 15 => '1', (int) 16 => '1', (int) 17 => '1', (int) 18 => '1', (int) 19 => 'one', (int) 20 => '04.07.1996', (int) 21 => '496', (int) 22 => '427/34' ), 'FAC' => array( (int) 0 => 'District Rudraprayag).2' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1 Bhyuraj Singh', (int) 1 => 'P.W. 1 Bhyuraj Singh', (int) 2 => 'P.W. 1 Bhuraj Singh', (int) 3 => 'D.W. 1 Shivraj Singh' ), 'GPE' => array( (int) 0 => 'Cr', (int) 1 => 'P.C.', (int) 2 => 'Chamoli', (int) 3 => 'Village Phata', (int) 4 => 'Dharmanand', (int) 5 => 'Sulochana', (int) 6 => 'Cr', (int) 7 => 'P.C.', (int) 8 => 'Cr', (int) 9 => 'P.C.', (int) 10 => 'Cr', (int) 11 => 'P.C.', (int) 12 => 'Cr', (int) 13 => 'P.C.', (int) 14 => 'Cr', (int) 15 => 'P.C.', (int) 16 => 'P.C.', (int) 17 => 'Clause', (int) 18 => 'Cr', (int) 19 => 'P.C.', (int) 20 => 'Cr', (int) 21 => 'P.C.', (int) 22 => 'Cr', (int) 23 => 'P.C.', (int) 24 => 'Counsel', (int) 25 => 'Dharmanand', (int) 26 => 'Sulochana' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'second', (int) 3 => 'second', (int) 4 => 'first', (int) 5 => 'first' ), 'MONEY' => array( (int) 0 => '506/34 of I.P.C.', (int) 1 => '506/34 of I.P.C.' ) ), 'desc' => array( 'Judgement' => array( 'id' => '902620', 'acts' => '', 'appealno' => '', 'appellant' => 'Dharmanand S/O Late Mohananand, ;smt. Sulochana Devi W/O Dharmanand and ;subodh S/O Dharmanand', 'authreffered' => '', 'casename' => 'Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand)', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'State v. Dharmanand and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Uttaranchal', 'court_type' => 'HC', 'decidedon' => '2010-04-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Prafulla C. Pant, J.', 'judgement' => '<p style="text-align: justify;">Prafulla C. Pant, J.</p><p style="text-align: justify;">1. This revision is directed against the judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996, whereby said court has dismissed the appeal affirming the conviction recorded by the trial court (Chief Judicial Magistrate, Chamoli), in Criminal Case No. 496 of 1992, State v. Dharmanand and Ors. relating to offences punishable under Section 452/34 and 427/34 of I.P.C., Police Station Ukhimath, District Chamoli (now District Rudraprayag).</p><p style="text-align: justify;">2. Heard learned Counsel for the parties and perused the lower court record.</p><p style="text-align: justify;">3. Brief facts of the case are that complainant P.W. 1 Bhyuraj Singh, moved an application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), before the District Magistrate, Chamoli, on 26.02.1992, on which the District Magistrate directed the In-charge of police station Ukhimath to register and investigate the case. It is alleged in the first information report by the complainant P.W. 1 Bhyuraj Singh that he is resident of Village Badasu. He was constructing his new house in Village Phata in place of his old demolished house. When he had gone out on 25.02.1992, accused namely Dharmanand, Sulochana (wife of Dharmanand) and Subodh (son of Dharmanand) trespassed in his house, and destroyed the construction and took away the tins of the house. Under orders of the District Magistrate, passed under Section 156(3) of Cr.P.C., the police registered Crime No. 03 of 1992, relating to offences punishable under Section 452, 427, 504 and 506 of I.P.C. After investigation, the police submitted charge sheet (Ext. A-6) against the three revisionists, namely Dharmanand, his wife Sulochana and his son Subodh.</p><p style="text-align: justify;">4. The Chief Judicial Magistrate, after giving necessary copies to the accused, framed charge of offences punishable under Section 452/34, 427/34, 504/34 and 506/34 of I.P.C., on 29.04.1993, to which the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bhuraj Singh (complainant); P.W. 2 Rajendra Singh (relative of the complainant); P.W. 3 Inder Singh (tenant of the complainant); P.W. 4 Constable Balbir Singh and P.W. 5 Sub Inspector Janeshwar Singh. The evidence was put to the accused under Section 313 of Cr.P.C. in reply to which they alleged the same to be false. On behalf of the defence D.W. 1 Shivraj Singh; D.W. 2 Bachan Singh. D.W. 3 Sundar Singh and D.W. 4 Aditya Ram were examined. The trial court after hearing the parties, found all the three accused guilty of charge of offences punishable under Section 452/34 and 427/34 of I.P.C. The accused were acquitted of the charge of rest of the offences punishable under Section 504/34 and 506/34 of I.P.C. After hearing on sentence, each of the convicts were released under the Probation of Offenders Act, on executing bond for keeping good conduct for two years. Aggrieved by said judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, the convicts preferred Criminal Appeal No. 03 of 1996, before the Sessions Judge, Chamoli. Said court vide impugned judgment and order dated 31.08.1999, dismissed the appeal affirming the conviction of the revisionists. Hence, this revision was filed by the convicts before the Allahabad High court on 28.09.1999, where it was admitted on the next day i.e. 29.09.1999. This revision is received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.</p><p style="text-align: justify;">5. Learned Counsel for the revisionists argued that the District Magistrate is not empowered to pass any order under Section 156(3) of Cr.P.C., as such, entire proceedings based on that order are vitiated. In this connection, it is further argued that the conviction recorded and affirmed by the courts below is liable to be set aside.</p><p style="text-align: justify;">6. Sub-section (3) of Section 156 of Code of Criminal Procedure, 1973, provides that any Magistrate empowered under Section 190 to take cognizance of an offence, may order such an investigation as provided under Sub-section (1) of said Section. Sub-section (1) of Section 156 of Cr.P.C., provides that any officer in charge of police station may, with or without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction for the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. The question before this Court is whether, expression 'Any Magistrate' includes the District Magistrate, or not? To interpret said expression, this Court feels it just and proper to refer Section 3 and Section 190 of Cr.P.C. Section 190 of Cr.P.C. provides that any Magistrate of first class, and any Magistrate of the second class empowered, on receiving complaint constituting an offence, or a police report, or an information received otherwise may take cognizance of such offence. Clause (a) of Sub-section (1) of Section 3 of Cr.P.C., provides as under:</p><p style="text-align: justify;">3. Construction of references. - (1) In this Code,</p><p style="text-align: justify;">(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires,</p><p style="text-align: justify;">(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;</p><p style="text-align: justify;">(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;</p><p style="text-align: justify;">Analogous provision relating to the Magistrate of second class and Magistrate of first class are given in Clause (b) and Clause (c) of Sub-Section (1) of Section 3 of Cr.P.C. Reading of Section 3 makes it abundantly clear that since the word 'Magistrate' referred in Section 190 and Section 156 of Cr.P.C., refer to Judicial Magistrate, as such, District Magistrate was not competent to pass any order under Section 156(3) of Cr.P.C., under which the application was expressly moved, by the complainant. The District Magistrate could have passed such an order exercising the powers of the Judicial Magistrate if conferred on him. But, in the present case, it is nobody's case that the District Magistrate exercised any power of Judicial Magistrate conferred on him. On being asked by the District Magistrate, the police could have on its own motion registered the written report as first information report, but the District Magistrate had no power to exercise the powers under Section 156(3) of Cr.P.C. That being so, the entire proceedings of this case are based on an order without jurisdiction. Learned Sessions Judge has committed grave error of law in rejecting the contention of learned Counsel for the revisionists/appellants on this point.</p><p style="text-align: justify;">7. Apart from this, on the facts also the courts below have erred in law in rejecting the testimony of the witnesses examined on behalf of the defence in which they have proved that they were the rightful owners in possession of the property in question. Whether, they were actually owners or not is a different issue, but for the purposes of constituting an offence punishable under Section 452 of I.P.C., and one punishable under Section 427 of I.P.C., the mensrea required appears to be missing. That being so, this Court is of the view that the revisionists were entitled to be acquitted from the charge of offences punishable under Section 452/34</p><p style="text-align: justify;">8. For the reasons as discussed above, this revision is allowed. The impugned judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996; and judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, in Criminal Case No. 496 of 1992, are hereby set aside. The revisionists, namely Dharmanand, Sulochana and Subodh are acquitted of the charge of offences punishable under Section 452/34 and 427/34 of I.P.C. Lower court record be sent back.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'State of U.P. (Now State of Uttarakhand)', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '902620' ) ) $title_for_layout = 'Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand) Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 452/34', (int) 1 => 'Section 156(3', (int) 2 => 'Section 156(3', (int) 3 => 'Section 452', (int) 4 => 'Section 452/34', (int) 5 => 'Section 313', (int) 6 => 'Section 452/34', (int) 7 => 'Section 504/34', (int) 8 => 'the Probation of Offenders Act', (int) 9 => 'Section 35', (int) 10 => 'Central Act No', (int) 11 => 'Section 156(3', (int) 12 => 'Section 156 of Code of Criminal Procedure', (int) 13 => 'Section 190', (int) 14 => 'Section 156', (int) 15 => 'Chapter XIII', (int) 16 => 'Section 3 and Section 190 of Cr.', (int) 17 => 'Section 3 of Cr.', (int) 18 => 'Section 3 of Cr', (int) 19 => 'Section 3', (int) 20 => 'Section 190 and Section 156', (int) 21 => 'Section 156(3', (int) 22 => 'Section 156(3', (int) 23 => 'Section 452 of I.P.C.', (int) 24 => 'Section 427 of I.P.C.', (int) 25 => 'Section 452/348', (int) 26 => 'Section 452/34' ), 'PERSON' => array( (int) 0 => 'Prafulla C. Pant', (int) 1 => 'J.1', (int) 2 => 'Judicial Magistrate', (int) 3 => 'Ukhimath', (int) 4 => 'Sulochana', (int) 5 => 'Judicial Magistrate', (int) 6 => 'Janeshwar Singh', (int) 7 => 'D.W. 3 Sundar Singh', (int) 8 => 'Magistrate', (int) 9 => 'Magistrate' ), 'DATE' => array( (int) 0 => '31.08.1999', (int) 1 => '1992', (int) 2 => '427/34 of I.P.C.', (int) 3 => '1973', (int) 4 => '26.02.1992', (int) 5 => '25.02.1992', (int) 6 => '1992', (int) 7 => '427/34', (int) 8 => '504/34', (int) 9 => 'two years', (int) 10 => 'the next day', (int) 11 => '2000', (int) 12 => '1973', (int) 13 => '31.08.1999', (int) 14 => '1992' ), 'ORG' => array( (int) 0 => 'Chamoli', (int) 1 => 'Chamoli', (int) 2 => 'State', (int) 3 => 'District Chamoli', (int) 4 => 'the District Magistrate', (int) 5 => 'the District Magistrate', (int) 6 => 'Village Badasu', (int) 7 => 'Dharmanand', (int) 8 => 'Subodh', (int) 9 => 'Dharmanand', (int) 10 => 'the District Magistrate', (int) 11 => 'Dharmanand', (int) 12 => 'P.W. 2 Rajendra Singh', (int) 13 => 'P.W. 3', (int) 14 => 'P.W. 4 Constable', (int) 15 => 'P.W. 5 Sub Inspector', (int) 16 => 'D.W. 2 Bachan Singh', (int) 17 => 'D.W. 4 Aditya Ram', (int) 18 => 'the Chief Judicial Magistrate', (int) 19 => 'Chamoli', (int) 20 => 'Criminal Appeal No.', (int) 21 => 'Chamoli', (int) 22 => 'Allahabad', (int) 23 => 'Court', (int) 24 => 'Learned Counsel', (int) 25 => 'the District Magistrate', (int) 26 => 'Magistrate', (int) 27 => 'Magistrate', (int) 28 => 'Court', (int) 29 => 'Magistrate', (int) 30 => 'the District Magistrate', (int) 31 => 'Court', (int) 32 => 'Magistrate', (int) 33 => 'Magistrate', (int) 34 => 'Judicial', (int) 35 => 'Metropolitan', (int) 36 => 'Magistrate', (int) 37 => 'Magistrate', (int) 38 => 'Sub-Section', (int) 39 => 'Judicial Magistrate', (int) 40 => 'District Magistrate', (int) 41 => 'The District Magistrate', (int) 42 => 'the Judicial Magistrate', (int) 43 => 'the District Magistrate', (int) 44 => 'Judicial Magistrate', (int) 45 => 'the District Magistrate', (int) 46 => 'the District Magistrate', (int) 47 => 'Learned Sessions', (int) 48 => 'Court', (int) 49 => 'Chamoli', (int) 50 => 'the Chief Judicial Magistrate', (int) 51 => 'Chamoli', (int) 52 => 'Subodh', (int) 53 => 'I.P.C. Lower' ), 'WORK_OF_ART' => array( (int) 0 => 'Criminal Case No', (int) 1 => 'Criminal Case No' ), 'CARDINAL' => array( (int) 0 => '496', (int) 1 => '427', (int) 2 => '504', (int) 3 => '506', (int) 4 => 'three', (int) 5 => '29.04.1993', (int) 6 => 'three', (int) 7 => 'three', (int) 8 => '427/34', (int) 9 => '04.07.1996', (int) 10 => '31.08.1999', (int) 11 => '28.09.1999', (int) 12 => '29.09.1999', (int) 13 => '3', (int) 14 => '1', (int) 15 => '1', (int) 16 => '1', (int) 17 => '1', (int) 18 => '1', (int) 19 => 'one', (int) 20 => '04.07.1996', (int) 21 => '496', (int) 22 => '427/34' ), 'FAC' => array( (int) 0 => 'District Rudraprayag).2' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1 Bhyuraj Singh', (int) 1 => 'P.W. 1 Bhyuraj Singh', (int) 2 => 'P.W. 1 Bhuraj Singh', (int) 3 => 'D.W. 1 Shivraj Singh' ), 'GPE' => array( (int) 0 => 'Cr', (int) 1 => 'P.C.', (int) 2 => 'Chamoli', (int) 3 => 'Village Phata', (int) 4 => 'Dharmanand', (int) 5 => 'Sulochana', (int) 6 => 'Cr', (int) 7 => 'P.C.', (int) 8 => 'Cr', (int) 9 => 'P.C.', (int) 10 => 'Cr', (int) 11 => 'P.C.', (int) 12 => 'Cr', (int) 13 => 'P.C.', (int) 14 => 'Cr', (int) 15 => 'P.C.', (int) 16 => 'P.C.', (int) 17 => 'Clause', (int) 18 => 'Cr', (int) 19 => 'P.C.', (int) 20 => 'Cr', (int) 21 => 'P.C.', (int) 22 => 'Cr', (int) 23 => 'P.C.', (int) 24 => 'Counsel', (int) 25 => 'Dharmanand', (int) 26 => 'Sulochana' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'second', (int) 3 => 'second', (int) 4 => 'first', (int) 5 => 'first' ), 'MONEY' => array( (int) 0 => '506/34 of I.P.C.', (int) 1 => '506/34 of I.P.C.' ) ) $desc = array( 'Judgement' => array( 'id' => '902620', 'acts' => '', 'appealno' => '', 'appellant' => 'Dharmanand S/O Late Mohananand, ;smt. Sulochana Devi W/O Dharmanand and ;subodh S/O Dharmanand', 'authreffered' => '', 'casename' => 'Dharmanand S/O Late Mohananand, Vs. State of U.P. (Now State of Uttarakhand)', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'State v. Dharmanand and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Uttaranchal', 'court_type' => 'HC', 'decidedon' => '2010-04-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Prafulla C. Pant, J.', 'judgement' => '<p style="text-align: justify;">Prafulla C. Pant, J.</p><p style="text-align: justify;">1. This revision is directed against the judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996, whereby said court has dismissed the appeal affirming the conviction recorded by the trial court (Chief Judicial Magistrate, Chamoli), in Criminal Case No. 496 of 1992, State v. Dharmanand and Ors. relating to offences punishable under Section 452/34 and 427/34 of I.P.C., Police Station Ukhimath, District Chamoli (now District Rudraprayag).</p><p style="text-align: justify;">2. Heard learned Counsel for the parties and perused the lower court record.</p><p style="text-align: justify;">3. Brief facts of the case are that complainant P.W. 1 Bhyuraj Singh, moved an application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), before the District Magistrate, Chamoli, on 26.02.1992, on which the District Magistrate directed the In-charge of police station Ukhimath to register and investigate the case. It is alleged in the first information report by the complainant P.W. 1 Bhyuraj Singh that he is resident of Village Badasu. He was constructing his new house in Village Phata in place of his old demolished house. When he had gone out on 25.02.1992, accused namely Dharmanand, Sulochana (wife of Dharmanand) and Subodh (son of Dharmanand) trespassed in his house, and destroyed the construction and took away the tins of the house. Under orders of the District Magistrate, passed under Section 156(3) of Cr.P.C., the police registered Crime No. 03 of 1992, relating to offences punishable under Section 452, 427, 504 and 506 of I.P.C. After investigation, the police submitted charge sheet (Ext. A-6) against the three revisionists, namely Dharmanand, his wife Sulochana and his son Subodh.</p><p style="text-align: justify;">4. The Chief Judicial Magistrate, after giving necessary copies to the accused, framed charge of offences punishable under Section 452/34, 427/34, 504/34 and 506/34 of I.P.C., on 29.04.1993, to which the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bhuraj Singh (complainant); P.W. 2 Rajendra Singh (relative of the complainant); P.W. 3 Inder Singh (tenant of the complainant); P.W. 4 Constable Balbir Singh and P.W. 5 Sub Inspector Janeshwar Singh. The evidence was put to the accused under Section 313 of Cr.P.C. in reply to which they alleged the same to be false. On behalf of the defence D.W. 1 Shivraj Singh; D.W. 2 Bachan Singh. D.W. 3 Sundar Singh and D.W. 4 Aditya Ram were examined. The trial court after hearing the parties, found all the three accused guilty of charge of offences punishable under Section 452/34 and 427/34 of I.P.C. The accused were acquitted of the charge of rest of the offences punishable under Section 504/34 and 506/34 of I.P.C. After hearing on sentence, each of the convicts were released under the Probation of Offenders Act, on executing bond for keeping good conduct for two years. Aggrieved by said judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, the convicts preferred Criminal Appeal No. 03 of 1996, before the Sessions Judge, Chamoli. Said court vide impugned judgment and order dated 31.08.1999, dismissed the appeal affirming the conviction of the revisionists. Hence, this revision was filed by the convicts before the Allahabad High court on 28.09.1999, where it was admitted on the next day i.e. 29.09.1999. This revision is received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.</p><p style="text-align: justify;">5. Learned Counsel for the revisionists argued that the District Magistrate is not empowered to pass any order under Section 156(3) of Cr.P.C., as such, entire proceedings based on that order are vitiated. In this connection, it is further argued that the conviction recorded and affirmed by the courts below is liable to be set aside.</p><p style="text-align: justify;">6. Sub-section (3) of Section 156 of Code of Criminal Procedure, 1973, provides that any Magistrate empowered under Section 190 to take cognizance of an offence, may order such an investigation as provided under Sub-section (1) of said Section. Sub-section (1) of Section 156 of Cr.P.C., provides that any officer in charge of police station may, with or without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction for the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. The question before this Court is whether, expression 'Any Magistrate' includes the District Magistrate, or not? To interpret said expression, this Court feels it just and proper to refer Section 3 and Section 190 of Cr.P.C. Section 190 of Cr.P.C. provides that any Magistrate of first class, and any Magistrate of the second class empowered, on receiving complaint constituting an offence, or a police report, or an information received otherwise may take cognizance of such offence. Clause (a) of Sub-section (1) of Section 3 of Cr.P.C., provides as under:</p><p style="text-align: justify;">3. Construction of references. - (1) In this Code,</p><p style="text-align: justify;">(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires,</p><p style="text-align: justify;">(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;</p><p style="text-align: justify;">(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;</p><p style="text-align: justify;">Analogous provision relating to the Magistrate of second class and Magistrate of first class are given in Clause (b) and Clause (c) of Sub-Section (1) of Section 3 of Cr.P.C. Reading of Section 3 makes it abundantly clear that since the word 'Magistrate' referred in Section 190 and Section 156 of Cr.P.C., refer to Judicial Magistrate, as such, District Magistrate was not competent to pass any order under Section 156(3) of Cr.P.C., under which the application was expressly moved, by the complainant. The District Magistrate could have passed such an order exercising the powers of the Judicial Magistrate if conferred on him. But, in the present case, it is nobody's case that the District Magistrate exercised any power of Judicial Magistrate conferred on him. On being asked by the District Magistrate, the police could have on its own motion registered the written report as first information report, but the District Magistrate had no power to exercise the powers under Section 156(3) of Cr.P.C. That being so, the entire proceedings of this case are based on an order without jurisdiction. Learned Sessions Judge has committed grave error of law in rejecting the contention of learned Counsel for the revisionists/appellants on this point.</p><p style="text-align: justify;">7. Apart from this, on the facts also the courts below have erred in law in rejecting the testimony of the witnesses examined on behalf of the defence in which they have proved that they were the rightful owners in possession of the property in question. Whether, they were actually owners or not is a different issue, but for the purposes of constituting an offence punishable under Section 452 of I.P.C., and one punishable under Section 427 of I.P.C., the mensrea required appears to be missing. That being so, this Court is of the view that the revisionists were entitled to be acquitted from the charge of offences punishable under Section 452/34</p><p style="text-align: justify;">8. For the reasons as discussed above, this revision is allowed. The impugned judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996; and judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, in Criminal Case No. 496 of 1992, are hereby set aside. The revisionists, namely Dharmanand, Sulochana and Subodh are acquitted of the charge of offences punishable under Section 452/34 and 427/34 of I.P.C. Lower court record be sent back.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'State of U.P. (Now State of Uttarakhand)', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '902620' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 452/34, Section 156(3, Section 156(3, Section 452, Section 452/34, Section 313, Section 452/34, Section 504/34, the Probation of Offenders Act, Section 35, Central Act No, Section 156(3, Section 156 of Code of Criminal Procedure, Section 190, Section 156, Chapter XIII, Section 3 and Section 190 of Cr., Section 3 of Cr., Section 3 of Cr, Section 3, Section 190 and Section 156, Section 156(3, Section 156(3, Section 452 of I.P.C., Section 427 of I.P.C., Section 452/348, Section 452/34
PERSON: Prafulla C. Pant, J.1, Judicial Magistrate, Ukhimath, Sulochana, Judicial Magistrate, Janeshwar Singh, D.W. 3 Sundar Singh, Magistrate, Magistrate
DATE: 31.08.1999, 1992, 427/34 of I.P.C., 1973, 26.02.1992, 25.02.1992, 1992, 427/34, 504/34, two years, the next day, 2000, 1973, 31.08.1999, 1992
ORG: Chamoli, Chamoli, State, District Chamoli, the District Magistrate, the District Magistrate, Village Badasu, Dharmanand, Subodh, Dharmanand, the District Magistrate, Dharmanand, P.W. 2 Rajendra Singh, P.W. 3, P.W. 4 Constable, P.W. 5 Sub Inspector, D.W. 2 Bachan Singh, D.W. 4 Aditya Ram, the Chief Judicial Magistrate, Chamoli, Criminal Appeal No., Chamoli, Allahabad, Court, Learned Counsel, the District Magistrate, Magistrate, Magistrate, Court, Magistrate, the District Magistrate, Court, Magistrate, Magistrate, Judicial, Metropolitan, Magistrate, Magistrate, Sub-Section, Judicial Magistrate, District Magistrate, The District Magistrate, the Judicial Magistrate, the District Magistrate, Judicial Magistrate, the District Magistrate, the District Magistrate, Learned Sessions, Court, Chamoli, the Chief Judicial Magistrate, Chamoli, Subodh, I.P.C. Lower
WORK_OF_ART: Criminal Case No, Criminal Case No
CARDINAL: 496, 427, 504, 506, three, 29.04.1993, three, three, 427/34, 04.07.1996, 31.08.1999, 28.09.1999, 29.09.1999, 3, 1, 1, 1, 1, 1, one, 04.07.1996, 496, 427/34
FAC: District Rudraprayag).2
PRODUCT: P.W. 1 Bhyuraj Singh, P.W. 1 Bhyuraj Singh, P.W. 1 Bhuraj Singh, D.W. 1 Shivraj Singh
GPE: Cr, P.C., Chamoli, Village Phata, Dharmanand, Sulochana, Cr, P.C., Cr, P.C., Cr, P.C., Cr, P.C., Cr, P.C., P.C., Clause, Cr, P.C., Cr, P.C., Cr, P.C., Counsel, Dharmanand, Sulochana
ORDINAL: first, first, second, second, first, first
MONEY: 506/34 of I.P.C., 506/34 of I.P.C.