GUPTA, J. - (1.) THE petitioner through this misc. petition u/s. 482 Cr. P. C. seeks the quashment of the proceedings of criminal case no. 62 /97 pending in the Court of Additional Chief Judicial Magistrate, Begun u/s. 379 IPC and 4/21 of the Mines and Minerals Regulation & Development Act, 1957.
(2.) THE brief facts. On the report of Shri Anil Kamthan, Nayab Tehsildar, Be- gun, that Daulat Singh had illegally mined at Khasra No. 993 of Rawarda, a case u/s. 379 IPC and 4/21 of the M. M. R. D. Act, 1957 was registered on 3. 2. 97. THE police, after investigation, submitted a challan. THE learned Magistrate vide order dt. 26. 8. 97 framed charges u/s. 379 IPC and 4/21 of the M. M. R. D. Act, 1957 against the petitioner. Two prosecution witnesses have been examined in the case. The contention of Mr. Champawat was two fold. One, the land from where the mining operation is alleged to have been done was in the possession of the pe- titioner, and therefore, offence u/s. 379 IPC cannot be said to have been committed by him. Two, the cognizance for an offence u/s. 4/21 of the M. M. R. D. Act could be taken on the complaint filed by a person, authorised under Sec. 22 of the M. M. R. D. Act and as the Nayab Tehsildar was not the person authorised to make a complaint, cognizance could not be taken by the Magistrate. He pointed out that the Govern- ment vide notification dt. 10. 6. 92 had authorised the District Collector, Sub Divisional Officer and the Tehsildar to lodge complaint for an offence u/s. 21 of the M. M. R. D. Act and the Nayab Tehsildar was not authorised to lodge complaint. The learned P. P. tried to support the order of framing charge and the proceedings pending against the petitioner. I have considered the rival contentions of the parties. First, it is to be seen whether a charge u/s. 379 IPC could be framed against the petitioner on the material on record. Though the petitioner was not the Khatedar of the land from where the mining operation was done, yet his case is that he had taken the land for cultivation from Khatedars Shivgopal Singh, Naresh Kumar and others and he was in lawful possession of the same. The statements of Shivgopal Singh and Naresh Khatedars of land bearing Khasra No. 993 recorded u/s. 161 Cr. P. C. , go to show that they had given the land to Daulat Singh for cultivation under oral agreement. Once it is the prosecution case that the petitioner was in possession of the land khasra No. 993 under an agreement from the Khatedars it will have to be accepted that the petitioner was in lawful possession of the land.
(3.) THE next question to be considered is whether mining operation on that land amounted to an offence u/s. 379 IPC. THE definition of theft under Sec. 378 IPC reads as under :- ``378. THEft-Whoever intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1-A thing so long as it is attached to the earth, not being moveable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is served from the earth. x x x x x The necessary ingredients of the offence of theft are : (1) there should be removal of the movable property, (2) the removal should be out of possession of any person, (3) the removal should be without the consent of that other person, and (4) the removal must be with dishonest intention. The prosecution case is that there was stone quarry underneath the land, bearing khasra No. 933 and the petitioner severed stones by illegal mining. The definition of the moveable property is given in Section 22 of the I. P. C. which reads as under: ``22. Movable property - The words ``movable property'' are intended to include corporeal of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. '' ;