Karnataka High Court
M/S. Shree Mallikarjun Shipping Pvt ... vs Central Bureau Of Investigation on 16 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.368 OF 2017
C/W
CRIMINAL PETITION NO.369 OF 2017
CRIMINAL PETITION NO.370 OF 2017
CRIMINAL PETITION NO.371 OF 2017
CRIMINAL PETITION NO.372 OF 2017
CRIMINAL PETITION NO.373 OF 2017
CRIMINAL PETITION NO.4526 OF 2017
CRIMINAL PETITION NO.4527 OF 2017
CRIMINAL PETITION NO.4528 OF 2017
IN CRIMINAL PETITION NO.368 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
2
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 10.11.2016 PASSED IN
SPL.C.C.NO.11/2014 ON THE FILE OF 32ND ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
PASSED IN I.A.NO.3/2015 FILED BY THE PETITIONERS VIDE
ANNEXURE-C AND FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.2 AND 3 FROM SPL.C.C.NO.11/2014 ON
THE FILE OF 32nd ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
IN CRIMINAL PETITION NO.369 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
3
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 21.12.2016 PASSED IN
ND
SPL.C.C.NO.15/2014 ON THE FILE OF 32 ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
PASSED IN I.A.NO.8/2015 FILED BY THE PETITIONERS VIDE
ANNEXURE-C AND FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.4 AND 5 FROM SPL.C.C.NO.15/2014 ON
THE FILE OF 32nd ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
IN CRIMINAL PETITION NO.370 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
4
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 19.11.2016 PASSED IN
SPL.C.C.NO.37/2014 ON THE FILE OF 32ND ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
PASSED IN I.A.NO.4/2015 FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.2 AND 3 FROM SPL.C.C.NO.37/2014 ON
THE FILE OF 32ND ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
5
IN CRIMINAL PETITION NO.371 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 10.11.2016 PASSED IN
SPL.C.C.NO.38/2014 ON THE FILE OF 32ND ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
6
PASSED IN I.A.NO.4/2015 FILED BY THE PETITIONERS VIDE
ANNEXURE-C AND FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.5 AND 6 FROM SPL.C.C.NO.38/2014 ON
THE FILE OF 32ND ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
IN CRIMINAL PETITION NO.372 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301 ...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
7
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 09.12.2016 PASSED IN
ND
SPL.C.C.NO.53/2014 ON THE FILE OF 32 ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
PASSED IN I.A.NO.2/2015 FILED BY THE PETITIONERS VIDE
ANNEXURE-C AND FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.2 AND 3 FROM SPL.C.C.NO.53/2014 ON
THE FILE OF 32ND ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
IN CRIMINAL PETITION NO.373 OF 2017
BETWEEN:
1. M/S. SHREE MALLIKARJUN SHIPPING PVT LTD.
@ M/S SMSPL
OL OF MARCES BUILDING
OPP: KADAMBA BUS STAND
MUNDAVEL, VASCO DAGAMA,
GOA - 403 802
2ND ADDRESS: SMT. KALPANA SAIL
JT. MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
'MOHAN' NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
2. SRI SATISH KRISHNA SAIL @ SATISH SAIL
S/O LATE KRISHNA SAIL
AGED ABOUT 49 YEARS
MANAGING DIRECTOR
M/S SHREE MALLIKARJUN SHIPPING PVT LTD.
R/O "MOHAN", NH-17, CHITTAKULA
SADASHIVGAD
KARWAR - 581 301.
...PETITIONERS
(BY SRI: MURTHY D NAIK, ADVOCATE)
8
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,
BELLARY ROAD,
BENGALURU - 560 032.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL. PP FOR CBI)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ORDER DATED 10.11.2016 PASSED IN
SPL.C.C.NO.54/2014 ON THE FILE OF 32ND ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34),
PASSED IN I.A.NO.5/2015 FILED BY THE PETITIONERS VIDE
ANNEXURE-C AND FURTHER BE PLEASED TO DISCHARGE THE
PETITIONERS-ACCUSED NO.5 AND 6 FROM SPL.C.C.NO.54/2014 ON
THE FILE OF 32ND ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR
CBI CASES, BANGALORE (CCH-34).
IN CRIMINAL PETITION NO.4526 OF 2017
BETWEEN:
SRI. PREM CHAND GARG
AGED ABOUT 53 YEARS
S/O SHRI HARNARAIN AGGARWAL
B-16, BHAGAWAN DAS NAGAR
NEW DELHI-110 026.
...PETITIONER
(BY SRI: MURTHY D.NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE
NO.36, BELLARY ROAD
GANGANAGAR, BANGALORE-560 032
REPRESENTED BY THE ADDL SP
CBI:BS & FC
BANGALORE-01 RESPONDENT
(BY SRI: P. PRASANNA KUMAR, SPL.PP)
9
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE IMPUGNED ORDER DATED 10.11.2016 BY THE XXXII
ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
CBI CASES, BANGALORE IN SPL.C.C.NO.54/2014 DISMISSING THE
APPLICATION FILED BY THE PETITIONER SEEKING HIS DISCHARGE.
IN CRIMINAL PETITION NO.4527 OF 2017
BETWEEN:
M/s SHRI LAL MAHAL LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT NO.B-16
BHAGWANDAS NAGAR
NEW DELHI-110 026
REPRESENTED BY ITS AUTHORISED REPRESENTATIVE SRI.KHAJA ALI.
...PETITIONER
(BY SRI: MURTHY D. NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE
NO.36, BELLARY ROAD, GANGANAGAR,
BANGALORE-560 032.
REPRESENTED BY THE ADDL. SP
CBI:BS & FC: BANGALORE.
...RESPONDENT
(BY SRI: P. PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE IMPUGNED ORDER DATED 10.11.2016 BY THE XXXII
ADDL. CITY CIVIL AND S.J. AND SPECIAL JUDGE FOR CBI CASES,
BANGALORE IN SPL.C.C.NO.54/2014 DISMISSING THE APPLICATION
FILED BY THE PETITIONER SEEKING HIS DISCHARGE U/S 239 OF
CR.P.C.
10
IN CRIMINAL PETITION NO.4528 OF 2017
BETWEEN:
SRI. SUSHIL KUMAR VALECHA
AGED ABOUT 65 YEARS
S/O LATE K.C.VALECHA
DIRECTOR, M/s. SHRI LAL MAHAL LIMITED,
NO.B-16, BHAGAWANDAS NAGAR,
NEW DELHI-110 026.
...PETITIONER
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE
NO.36, BELLARY ROAD
GANGANAGAR, BANGALORE-560 032.
REPRESENTED BY THE ADDL. SP
CBI:BS & FC BANGALORE.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE IMPUGNED ORDER DATED 10.11.2016 BY THE XXXII
ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR CBI
CASES, BANGALORE IN SPL.C.C.NO.54/2014 DISMISSING THE
APPLICATION FILED BY THE PETITIONER SEEKING HIS DISCHARGE.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
11
COMMON ORDER
Crl.P. No.368/2017 c/w. Crl.P.Nos.369/2017, 370/2017, 371/2017, 372/2017 and 373/2017 M/s.Shree Mallikarjun Shipping Pvt. Ltd. and Sri.Satish Krishna Sail @ Satish Sail are the petitioners in this batch of petitions filed under section 482 of Cr.P.C., seeking to set-aside the impugned orders passed by the 32nd Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru (CCH-34) on the applications filed under Sections 227 and 239 Cr.P.C. seeking discharge.
2. Petitioners are ranked as accused Nos.2 and 3 in Spl.C.C.No.11/2014, accused Nos.4 and 5 in Spl.C.C.No. 15/2014, Spl.C.C.No.37/2014 and Spl.C.C.No.53/2014; accused Nos.5 and 6 in Spl.C.C.No.38/2014 and Spl.C.C.No.54/2014 respectively.
3. The brief facts of the case are that, the Hon'ble Supreme Court of India in Writ Petition (Civil) No.562/2009 in 12 the case of SAMAJA PARIVARTHAN SAMUDAYA vs. STATE OF KARNATAKA & Others was pleased to constitute the Central Empowered Committee (hereinafter referred to as "CEC") and directed the CEC to conduct a detailed enquiry into the illegal mining carried out in the State of Karnataka and other places. The CEC submitted detailed reports dated 27.04.2012 and 05.09.2012. The Hon'ble Apex Court on considering both the reports, by its order dated 07.09.2012 directed the CBI to immediately institute FIR(s) and to investigate the case(s) relating to the illegal extraction of about 50.79 lakhs MT of Iron Ore from the forest areas of Karnataka during the period from 01.01.2009 to 31.05.2010; the illegal transport of the aforesaid quantity of iron ore from the area(s) of extraction to Belekeri Port and from there its illegal export to other countries. It was noted in the said order that out of the aforesaid quantity of 50.79 lakh MTs, over 8 lakhs MTs iron ore found lying at Belekeri Port was actually under orders of seizure by the Forest Department authorities and the Court before it was exported in violation not only of different laws but in the teeth of the seizure order. The CBI was directed to institute FIR(s) as suggested in 13 sub-paragraphs (I) and (IV) at pages 12 and 14 respectively of the CEC report and carry out thorough and intensive investigation including, if so required, custodial interrogation of the accused. It was further directed that the copies of CEC reports shall form the basic material for institution of the FIR(s). Further the CID, Karnataka, investigating into FIR No.189/2010 of Ankola Police Station was directed to hand over all the records in regard to that case to the CBI.
4. Pursuant to the aforesaid order, respondent - CBI registered the case in RC.17(A)/2012 on 13.09.2012 against accused No.1 - the then Port Conservator, Belekeri Port, Ankola and others for the offences punishable under sections 120-B read with 406, 409, 379, 411 and 447 of IPC and sections 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and section 24 of Karnataka Forest Act, 1963 and took up investigation. On conclusion of the investigation, a final report dated 17.11.2013 was placed before the Special Court. On considering the charge sheet and the material produced in support of the charges levelled therein, learned Special Judge 14 took cognizance of the above offences and issued summons to petitioners and other accused.
5. On appearing before the Special Court, petitioners moved separate applications under sections 227 and 239 of Cr.P.C. seeking discharge. These applications were opposed by learned Special Public Prosecutor by filing a detailed statement of objections. Considering the averments made in the respective applications and the objections raised on behalf of the respondent - State and upon hearing, the Special Court by the impugned orders dismissed the applications and directed framing of charges against the petitioners herein for the offences punishable under sections 120-B, 409 and 420 of IPC.
6. I have heard learned counsel appearing for petitioners Sri.Murthy D.Naik and learned Spl. Public Prosecutor for respondent - CBI Sri.Prasanna Kumar.
7. The contentions raised by the learned counsel for petitioners are enumerated as under:
15
(i) The ingredients necessary to constitute the offences alleged are not made out. There was no material to frame charges against the petitioners. Initially, the allegations against the petitioners being that of theft of iron ore, learned Special Judge has misdirected himself in directing framing of charges for the offences punishable under sections 120B read with sections 409 and 420 of IPC.
(ii) Petitioner No.2 has been unnecessarily arrayed as accused. There are no specific allegations against petitioner No.2 except that he was the Managing Director of the petitioner No.1 - Company. All the allegations are directed against Petitioner No.1 Company. Petitioner No.2 is implicated in the alleged offences by applying the principles of vicarious liability; but there is no concept of vicarious liability in criminal law as held in SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION, (2015)4 SCC 609.
(iii) Learned Special Judge having discharged accused No.5 in Spl.C.C.No.11/2014 on the ground that he cannot be 16 fastened with criminal liability for the reason that he was only a Director of A4 Company, has erred in not discharging petitioner No.2 in all the above six cases as he is also fastened with criminal liability merely on the ground that he was the Managing Director of petitioner No.1 - Company.
(iv) The order taking cognizance of the alleged offences by the learned Special Judge is bad in law because cognizance of IPC offences was not taken in Criminal Petition Nos.369/2017, 370/2017, 371/2017 and 372/2017.
(v) Learned Special Judge failed to undertake the exercise of sifting and weighing the materials on record while deciding the applications filed by the petitioners under sections 227 and 239 of Cr.P.C. As laid down by the Hon'ble Supreme Court in SATISH MEHRA vs. STATE (NCT of DELHI) & Others (2012)13 SCC 614 and L.KRISHNA REDDY vs. STATE by Station House Officer & Others (2014)14 SCC 401, the power under section 239 Cr.P.C. are wider than section 227 Cr.P.C. and therefore, failure to analyze the evidence and to apply his mind 17 to the facts and circumstances of the case has vitiated the impugned orders.
(vi) Learned Special Judge failed to note that the registration of the Forest Case in FOC.17/2009-10 was in violation of section 155(2) Cr.P.C. and therefore, the initiation of the proceedings against the petitioners being bad in law right from inception, the consequent seizure effected under the said proceedings was also illegal and therefore the learned Special Judge could not have relied on the said material to come to the conclusion that a prima facie case for trial was made out by the respondent.
(vii) Learned Special Judge has failed to follow the procedure contemplated under section 239 Cr.P.C. at the time of hearing before charge. In view of the law laid down by this Court in Smt.J.UMADEVI & Another vs. STATE OF KARNATAKA, By Indiranagar Police, ILR 2013 Karnataka 4471, the accused ought to have been given an opportunity of examining themselves in support of the grounds for discharge. 18
(viii) In support of these contentions, learned counsel for petitioners has placed reliance on the following authorities:-
(1) (2015) 4 SCC 609, SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION (2) (2011) 13 SCC 412, THERMAX LTD. & Others vs. K.M.JOHNY & Others (3) (2012) 13 SCC 614, SATISH MEHRA vs. STATE (NCT OF DELHI) & Others (4) (1999) 6 SCC 667, COMMON CAUSE, A Regd.
Society vs. UNION OF INDIA & Others (5) AIR 2016 SC 4245, PRABHU CHAWLA vs. STATE OF RAJASTHAN & Anr.
(6) (1980) 2 SCC 665, V.C.SHUKLA vs. STATE (DELHI ADMINISTRATION) (7) (2005) 4 SCC 530, STANDARD CHARTERED BANK & Others vs. DIRECTORATE OF ENFORCEMENT & Others 19 (8) (2019) 16 SCC 610, BIRLA CORPORATION LIMITED vs. ADVENTZ INVESTMENTS AND HOLDINGS LIMITED & Others (9) (2005) 1 SCC 568, STATE OF ORISSA vs DEBENDRA NATH PADHI (10) (2008) 2 SCC 492, S.K. SINHA, Chief Enforcement Officer vs. VIDECON INTERNATIONAL LTD. & Others (11) Criminal Petition No.3750/2017, Sri. SHARAD MOHANRAO KESHKAMAT vs. CENTRAL BUREAU OF INVESTIGATION before the Hon'ble High Court of Karnataka dated 03.08.2018 (12) Criminal Petition No.1986/2017, M/s.BHAGAWATHI INTERNATIONAL & Anr vs. CENTRAL BUREAU OF INVESTIGATION before the Hon'ble High Court of Karnataka dated 25.07.2018 (13) (2013) 8 SCC 154, SAMAJ PARIVARTANA SAMUDAYA & Others vs. STATE OF KARNATAKA & Others (14) ILR 2013 KAR 4471, Smt. J. UMADEVI and Another vs. STATE OF KARNATAKA by Indiranagar Police. 20 (15) (2014) 14 SCC 401, L KRISHNA REDDY vs. STATE by Station house officer and Others (16) ILR 2020 KAR 630, VAGGEPPA GURULINGA vs. STATE OF KARNATAKA, represented by State Public Prosecutor
8. As against the above contentions, learned Special Public Prosecutor appearing for the respondent has filed detailed statement of objections and has produced large number of documents which are part of the charge sheet to show that the petitioners were also active participants in the alleged conspiracy and were in the know-how of the entire transaction right from the inception. Referring to the Memorandum and Articles of Association of Shree Mallikarjun Shipping Pvt. Ltd., learned Special Public Prosecutor pointed out that petitioner No.1 - Company had only two Directors at the relevant time namely petitioner No.2 Sri.Satish Krishna Sail and his wife Smt.Kalpana Sail. Lease agreement was entered into between the petitioners and the Director of Ports & Inland Water Transport in Karnataka, Karwar as per Annexure-'R5' and the communications were 21 addressed to the petitioners. Even the factum of seizure and entrustment of the seized iron ore was within the knowledge of the petitioners as is evident from the letters Annexures - 'R7' to 'R18'. Annexure-'R7' is the order of the learned Magistrate permitting retention of seized iron ore in as is condition. Under the said order, the seized iron ore was handed over to Port Conservator, Belekeri Port (accused No.1) in 'as is where is basis' for safe custody, as such, there is prima facie evidence to show that at the relevant time, the seized iron ore was in the custody of accused No.1. Annexure-'R9' is addressed by the Port Conservator, Belekeri to petitioner No.1 M/s.Shree Mallikarjun Shipping Pvt. Ltd., and other Firms intimating them about the orders of the Hon'ble Civil Judge, Jr. Division, JMFC, Ankola. This letter has been acknowledged by petitioner No.1 - Company. Annexure- 'R11' letter dated 27.03.2020 is relevant in the sense that the said letter was addressed to petitioner No.1 and other Firms by the Port Officer, Karwar, which reads as under:
"Further to the Port Conservator, letter cited above, this is to inform you that the Range 22 Forest Officer, Ankola telephonically reported that he has marked the Iron Ore stock lying inside the Belekeri Port Premises on 26th March, 2010 as is where is basis. Therefore, you are directed not to load the stack lying in the Port premises.
You are also directed not to add any additional cargo into the stack which are marked by the Range Forest Officer.
If any consequence arising out of this, you will be held responsible which may please be noted."
This letter is acknowledged by petitioner No.1. Likewise, the other annexures produced by the respondent indicate that the very same cargo was shipped by the cargo-handling agent of petitioner No.1 namely, M/s. PJS Overseas Limited. Respondent No.2 has produced the copy of the petition filed by the said M/s. PJS Overseas Limited, wherein he has admitted that he was the cargo-handling agent of Petitioner No.1. There are also documents to show that the very same cargo was shipped through M.V.Columbia. As per the details furnished, iron ore was procured and exported by M/s.Shree Mallikarjun Shipping Pvt. Ltd., with export realisation through Banks. Payment realised 23 through the said sale is also evidenced in the said document. The cargo-handling agent of petitioner No.1 has filed a memo before this court in W.P.No.15742/2010 intimating that he was not able to make the export as the port was shut down for monsoon. All these documents therefore prima facie make out the ingredients of the offences charged against the petitioners and therefore, the contention of the petitioners that the petitioners have been prosecuted without any basis and that accused No.3 was not aware of the alleged transaction is far from truth and cannot be accepted.
9. Insofar as the contention urged by learned counsel for petitioners touching the illegality of seizure or iron ore by the forest officials is concerned, learned Special Public Prosecutor, at the outset, submitted that the investigation in the instant case was carried on pursuant to the direction of the Hon'ble Supreme Court in Writ Petition (Civil) No.562/2009 wherein the Hon'ble Supreme Court has specifically directed investigation into the illegal export of iron ore found lying at Belekeri Port which was actually under the orders of seizure by 24 the Forest Department authorities. It is the submission of learned Special Public Prosecutor that in view of the said direction, even if there was any illegality in the seizure or iron ore by the forest officials, the same does not affect the investigation in the instant case.
10. In addition to the above submissions, referring to the exposition of law made by the Hon'ble Supreme Court in the case of ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & Another vs. CENTRAL BUREAU OF INVESTIGATION, (2018) 16 SCC 299, learned Special Public Prosecutor emphasized that the very maintainability of the petition against the order of discharge is not tenable unless the case is covered under exceptional circumstances as laid down in the said judgment. In this regard, learned Special Public prosecutor has referred to para 37 of the order which reads as under:
"37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr PC 25 or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.
(underlining supplied)
11. What are the patent errors of jurisdiction have been explained by the Constitutional Bench of the Hon'ble Apex Court in HARI VISHNU KAMATH vs. SYED AHMAD ISHAQUE & Others, AIR 1955 SC 233, in para 21 whereof it is held as under:-
21. xxxxxxxxxxxxxx The decision in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw was taken in appeal and was affirmed by the court of appeal in Rex v Northumberland Compensation Appeal Tribunal; Ex parte Shaw.
In laying down that an error of law was a ground for granting certiorari, the learned Judges emphasised that it must be apparent on 26 the face of the record, Denning L.J who stated the power in broad and general terms observed.
"It will have been seen that
throughout all the cases there is one
governing rule; certiorari is only
available to quash a decision for error of law if the error appears on the face of the record".
The Position was thus summed up by Morris, L.J. "It is plain that certiorari will not issue as the cloak of an appeal in disguise.
It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity or absence of, or excess of, jurisdiction where shown".
In Veerappa Pillai v. Raman & Raman Ltd it was observed by this court that under Article 227 the writ should be issued in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, 27 or there is an error apparent on the face of the record".
In T.C. Basappa v. T Nagappa the law was thus stated.
"An error in the decision or determination itself may also be amenable to a writ certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words it is a patent error which can be corrected by "certiorari" but not a mere wrong decision".
It is argued that in the absence of any patent errors of jurisdiction, there is no reason to interfere with the impugned orders.
12. Refuting the contentions raised by learned counsel for petitioners that the Trial Court has failed to analyse and sift the evidence produced by the Investigating Agency, learned Special Public Prosecutor has referred to the decision of the Hon'ble Supreme Court in STATE ANTI- CORRUPTION BUREAU, 28 HYDERABAD & Another vs. P.SURYAPRAKASAM, 1999 SCC (Cri) 373, with reference to para 5 wherein it is held as under:-
5. Without meaning any disrespect to the High Court, we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.PC, which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can consider are only the police report referred to under section 173 Cr.PC and the documents sent with it. The only right the accused has at the stage is of being heard and nothing beyond it. Of course, at that stage the accused may be examined but that is a prerogative of the court only. Though, in view of the clear language of the above sections, no authority need be cited for the above proposition still we may refer to the judgement of this court in Minakshi Bala v Sudhir Kumar (to which one of us was a party) for therein, the scope and ambit of the above sections came up for consideration and it was held (SCC p.144 para 6) .
"6 Having regard to the fact that the offences, for which charge-sheet was 29 submitted in the instant case and cognizance taken, were triable as a warrant case the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 CrPC and examine the accused, is he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 of CrPC, conversely if he finds that there is ground for presuming that the accused has committed an offence triable by him he has to frame to charge in terms of Section 240 Cr PC".
(underlining supplied)
13. On the same point, learned Special Public Prosecutor has referred to the decision of the Delhi High Court in SURINDER KUMAR YADAV & Others vs. Smt.SUVIDYA YADAV & Another, 30 dated 22.08.1986 in Crl.Misc.(M).No.1467/1985, wherein it is observed that, "7. The examination, if any, of the accused under the provisions of this section must necessarily be with regard to the material against him in the documents referred to in Section 207 Cr.P.C. and the answers given by him during such examination explaining those documents, can, at the most, be the material on which a Magistrate can discharge the accused."
14. It is the submission of learned Special Public Prosecutor that in the instant case, eventhough petitioners in their applications under sections 239 and 227 Cr.P.C. sought to examine themselves, yet the petitioners did not come forward to examine themselves nor did they produce any evidence to rebut the positive material produced by the prosecution in proof of their involvement in the alleged conspiracy as well as commission of various other offences charged against them. Therefore, there is no reason to interfere with the impugned orders on that score.
31
15. Finally, learned Special Public Prosecutor pointed out that the statements of the witnesses coupled with the documentary evidence produced by the prosecution prima facie discloses the elements of conspiracy between petitioners and other accused. Therefore, learned Special Judge was justified in directing framing of charges against the petitioners. Crl.P.Nos.4526/2017 c/w. 4527/2017, 4528/2017
16. The petitioners in Crl.P.No.4526/2017, Crl.P.No.4527/2017 and Crl.P.No.4528/2017 are accused Nos.3, 2 and 4 respectively in Crl.No.RC.17(A)/2012.
17. The material allegations leveled against these petitioners are that they were also involved in the sale of seized iron ore to M/s. Shree Mallikarjun Shipping Pvt. Ltd.,-accused No.5 and Satish Krishna Sail-accused No.6 in Crime No.RC.17(A)/2012.
18. In addition to the common contentions urged in the earlier petitions, learned counsel appearing for the petitioners Sri. Murthy D. Naik would contend that these petitioners have 32 been implicated in the alleged offences without there being any prima-facie material to show their involvement either in the alleged conspiracy or in the sale of seized iron ore.
19. In support of these submissions, learned counsel has referred to the extract of the minutes of meeting of the Board of Directors of M/s. Shri Lal Mahal Limited (Previously Lal Mahal Limited) held on 10th Day of December 2008, at its Corporate Office at B-5, Bhagwan Dass Nagar, New Delhi-26 which reads:
"AUTHORISATION FOR IRON ORE BUSINESS The matter of Authorisation for the Iron Ore Business was considered and the following resolution were passed.
"RESOLVED THAT the consent of the Board of Directors of the Company be and is hereby accorded to appoint Mr. ASHISH MAJUMDAR the Chief Executive Officer/Senior General Manager, Mines & Mineral Division of the Company, with immediate effect to Mine, Procure, Transport, Store and Export Iron Ore, Bauxite in the States of Gujarat, Karnataka, Orissa, Goa, Andhra Pradesh, Chhattisgarh & any other State of India."
"RESOLVED FURTHER THAT Mr. ASHISH MAJUMDAR be and is hereby further authorized to sign, execute and deliver all necessary papers, documents, forms, contracts etc., on the behalf of the Company."33
"RESOLVED FURTHER THAT Mr. ASHISH MAJUMDAR be and is hereby also authorized on behalf of the Board to appoint, engage Transporters, Customs House Agents and other professionals to carry out the aforesaid exports of Iron Ore and Bauxite and to execute necessary documents in their favour."
20. Further, learned counsel has referred to the contract entered into between M/s. Shri Lalmahal Ltd., New Delhi and M/s. Shree Mallikarjun Shipping Pvt. Ltd., Ankola and pointed out that the very same document has been produced by the prosecution alongwith the charge sheet which discloses that the contract entered into between M/s. Shri Lalmahal Ltd., New Delhi and M/s. Shree Mallikarjun Shipping Pvt. Ltd., Ankola, is signed by its Senior General Manager Sri. Ashish Mazumdar in terms of the above authorization and therefore, there was no material to show that accused Nos.2, 3 and 4 were involved in the alleged sale of iron ore and that they were part of the alleged conspiracy involved directly or indirectly in the shipment of seized cargo.
21. Refuting these submissions, learned Special Public Prosecutor appearing for respondent at the outset referred to the 34 e-mail exchanged between the parties which is produced at Annexure-R19 and pointed out that said e-mail was sent by Sri. Ashish Mazumdar to Satish Krishna Sail (accused No.5) as well as to Prem Garg i.e., accused No.3 and Sushil Kumar Valecha accused No.4. The subject of the said e-mail was with regard to the negotiation of the price of the cargo. Portion of the said e-mail reads as under:-
"Refer your discussion with our Director Mr. Valecha during negotiation, wherein the price agreed negotiated considering/handling and moisture loss. So there cannot be any further deduction as such."
Further, on 2.06.2010, a message has been forwarded by Ashish Majumdar to Satish Sail and Prem Garg, the subject whereof is 'Iron Ore Fines- Belekeri Port.".
Further learned counsel has referred to another e-mail dated 26.04.2010 sent by Satish Krishna Sail to Sushil Kumar Valecha. It reads as under:-
"Please find attached the draft contract. Kindly check and approve."35
22. Based on these documents, learned Special Public Prosecutor has argued that these documents prima-facie indicate that the petitioners were also parties to the alleged conspiracy and were in the know-how of the alleged transaction. Therefore, the submission of learned counsel for the petitioners that the day-to-day affairs of the company were carried on only by its authorized representative and that the petitioners were not aware of any of the alleged dealings, cannot be accepted. In support of these submissions, learned Special Public Prosecutor has referred to the statement of Ashish Mazumdar wherein he has stated that the "company purchased about 35,370 metric tonnes of iron ore from different suppliers and stored in Belekere port. A portion of this cargo of about 24,441 metric tonnes was seized by Forest Dept. on 29.03.2010. During this period, Satish Sail of M/s. Shree Mallikarjun Shipping Pvt Ltd., approached through Mangal Das Kamal showing interest in buying entire cargo including the seized iron ore. The proposal was conveyed to my directors and a meeting was fixed at Karwar." 36
23. Learned Special Public Prosecutor further referred to the shipping bill dated 22.04.2010 and further submitted that the very same petitioners had approached this Court in W.P.No.15744/2010 (GM-FOR) seeking permission to lift the iron ore from Belekeri port on 03.06.2010 much after exporting the same as per the shipping bill dated 22.04.2010 Annexure-R23. Thus, he contends that prima-facie material is available in proof of the complicity of the petitioners in the alleged offences and therefore there is no ground to quash the proceedings against the petitioners.
24. Insofar as the documents relied on by learned counsel for petitioners dated 10.12.2018 is concerned, the learned Special Public Prosecutor submitted that this document is not part of the charge-sheet, and therefore no reliance could be placed on this document at this stage in view of the law laid down in State Of Orissa vs Debendra Nath Padhi, 2005 (1) SCC
568.
25. In the light of these rival contentions, the points that arise for my consideration are, 37 (1) Whether the learned Special Judge has committed an error in denying opportunity to the petitioners to examine them in support of their application for discharge under section 239 Cr.P.C.?
(2) Whether the direction to frame charges against the petitioner No.2 (Sri.Satish Krishna Sail) is bad in law for want of prima facie material?
(3) Whether in the facts and circumstances of the case, petitioners deserve to be discharged of the alleged offences under sections 120B read with 409 and 420 IPC?
Reg. Point No.1:
26. It is trite law that at the stage of framing the charge, the Trial Court has to apply its mind to the entire records and documents to find out whether there is sufficient ground to proceed against the accused. As held in STATE through CBI vs. Dr.ANUP KUMAR SRIVATSAVA, (2017) 15 SCC 560, "25. Framing of charge is the first major step in a criminal trial where the court is 38 expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or 39 quash the proceedings in exercise of its powers under the provisions."
27. Section 239 of Cr.P.C. lays down the circumstances in which accused could be discharged in a warrant case. The section reads as under, "239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
From this provision, it is clear that at the stage of framing charges, the court has to consider only the documents sent under Section 173 of the Code and should examine the accused if it thinks necessary. Any other documents including the document produced by the accused cannot be taken into consideration by the learned Magistrate at the stage of framing the charge.
40
28. This Court in Smt.J.UMADEVI & Another vs. STATE OF KARNATAKA, By Indiranagar Police, ILR 2013 Karnataka 4471, has held that:
"The language of Sections 239 and 227 are different. The scope of power exercisable to grant discharge under Section 227 is less compared to the power of discharge conferred on the Magistrate under Section 239. It is for this reason Sessions Judge is required to examine only the record of the case and documents submitted therewith for ascertainment as to whether a case is made out for framing charge or discharge. For doing so, the Sessions Judge can only 'hear' the submission of the prosecution and the accused. But under Section 239, the requirement is different. It envisages 'If upon consideration the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.' 41
22. Therefore, examination of the accused is permissible under Section 239, undoubtedly, for ascertainment about the truth or otherwise of the allegations made, which is not contemplated in Section 227. Therefore, it implies that the magistrate cannot merely on the basis of reference to the charge sheet, reject the request of the accused to discharge only because prima facie case is made out. He is required not only to examine the records submitted along with the final report under Section 173, Cr.P.C., but also to examine the accused for ascertainment as to whether a case is made out for framing charge. All the contentions of the accused need to be taken into consideration."
29. What is meant by the expression "making such examination, if any, of the accused" as employed in Section 239 Cr.P.C. has been explained by this Court in K.D.APPACHU vs. STATE OF MYSORE, AIR 1962 MYSORE 167, as under:
"The examination, if any, of the accused under the provisions of this section must necessarily be with regard to the material against him in the documents referred to in Section 207 Cr.P.C. and the answers given by 42 him during such examination explaining those documents, can, at the most, be the material on which a Magistrate can discharge the accused against him."
30. On the same question, the Delhi High Court in SURINDER KUMAR YADAV & Others vs. Smt. SUVIDYA YADAV & Another in Crl.Misc.(M).1467/1985 decided on 22.08.1986 has observed that:
"In view of the plain language pertaining to documents of section 239 Cr.P.C. the consideration of any other documents including the documents produced by the accused cannot be taken into consideration by the Magistrate while passing the order of discharge."
31. In this regard, the Hon'ble Supreme Court in STATE OF ORISSA vs. DEBENDRA NATH PADHI, (2005) 1 SCC 568, in para 16, has summarized the position of law as under:-
"All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with 43 reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that."
(emphasis supplied).
Further, in para 20 of the said decision, the Hon'ble Supreme Court on considering the identical submissions made by the accused in the said case, has observed thus: 44
"20. Reliance placed on behalf of the accused on some observations made in Minakshi Bala v. Sudhir Kumar and Others[(1994) 4 SCC 142] to the effect that in exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence is misplaced for the purpose of considering the point in issue in these matters. If para 7 of the judgment where these observations have been made is read as a whole, it would be clear that the judgment instead of supporting the contention sought to be put forth on behalf of the accused, in fact, supports the prosecution. Para 7 of the aforesaid case reads as under:-
"7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima case has been made out - as has been done in the instant case - the persons arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for 45 which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence."
In the instant case, no such unimpeachable documents are produced by the petitioners which could outweigh and overrule the view taken by the learned Magistrate / Special Judge in framing charges against the petitioners without recording the evidence.
46
32. From the above, it is clear that the expression "examination of the accused" as envisaged in section 239 Cr.P.C., relates only to examination of the accused with regard to the documents produced along with the final report under section 173 Cr.P.C. The said section does not contemplate an opportunity of adducing evidence to the accused as sought to be contended by learned counsel for petitioners. Even otherwise, the section does not confer any right on the accused either to examine him or to produce any documents or evidence at the stage of framing the charge, though the said section invests power on the court to examine the accused if the court finds that the examination of the accused is necessary for the purpose of elucidating the material produced along with the report under section 173 Cr.P.C. Section 239 Cr.P.C. does not envisage any application by the accused. Any such requisition or application filed by the accused seeking leave to examine him in terms of section 239 Cr.P.C. would be only to persuade the court to hear him with regard to the documents produced by the prosecution and not to provide an opportunity to the accused to lead 47 evidence to counter the documents or the statements relied on by the prosecution. As already discussed above, such a course would run counter to the scheme of the Code and would defeat the very object of the criminal trial, as such, I do not find any merit in the contention urged by learned counsel for petitioners that on account of the non-examination of the petitioners / accused, the impugned orders of framing charge are vitiated. 77 Reg. Point No.2:
33. The next contention urged by learned counsel for petitioners is based on the premise that petitioner No.2 Sri.Satish Krishna Sail has been prosecuted for the alleged offences solely on the ground that he was the Director of M/s.Shree Mallikarjun Shipping Pvt. Ltd., at the relevant time and that there was no independent material in the charge sheet to show that he was personally involved in the alleged transaction or that he was aware of the acts carried out by accused No.1 - Company.48
34. This argument appears to have been canvassed in view of the observation made by learned Special Judge in para 60 of the impugned order which reads as under:
60. A corporate entity being an artificial person, acts through its Directors, Officers, Managing Director, Chairman, etc. If such a Company commits an offence involving mens rea, it would be the intent and action of that individual who would act on behalf of the Company. It would be more so, when the criminal act is that of conspiracy. At the same time, there is no vicarious liability unless the statute specifically provides so. An individual who has perpetrated the commission of an offence on behalf of a Company can be made an accused, along with the Company, if there is sufficient evidence of his active role coupled with criminal intent. The Hon'ble Apex Court has held as above in the case of Sunil Bharti Mittal speaking about the circumstances when the Directors/persons in charge or control of the affairs of the Company can also be prosecuted, when the Company is the accused persons.
35. As rightly submitted by learned counsel for petitioners, learned Special Judge has applied the doctrine of 49 alter ego in reverse direction. The correct position of law is explained by the Hon'ble Supreme Court in SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION, (2015)4 SCC 609, in para 40 of the decision as under:-
"40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company.
Further, in para Nos.42 and 43 of the decision, it is further elucidated that,
42. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action 50 of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision."
36. In the instant case, the allegations made in the charge sheet, insofar as petitioner No.2 is concerned, would go to show that in addition to he being the Director of the accused No.2 - Company, he has been implicated in the alleged offences in his individual capacity as is evident from the allegations made in the charge sheet which read as under:-
"8. Shri Satish Krishna Sail (A-3) who is the Managing Director of M/s Shree Mallikarjun 51 Shipping Pvt. Ltd (A-2) and dealing with the iron ore business, in connivance with Shri Mahesh Biliye, Port Conservator, Belekeri (A1) obtained the port clearance and illegally exported 14130 MT iron ore by vessel MV Columbia under Shipping Bill No.165/10 dated 14.05.10 & 170/10 dated 25.05.10. The said Writ Petition was later withdrawn by filing a Memo dated 29.06.2010 wherein it has been mentioned by M/s PJS Overseas Ltd (A-4) that they could not export the iron ore, as Belekeri port was closed due to monsoon.
9. At the end of the season (31.5.2010), there was a balance of 4163.87 MT of iron ore lying in the plot allotted to M/s PJS Overseas Ltd., which proves that M/s Shree Mallikarjun Shipping Pvt. Ltd (A-2) exported the seized iron ore to the extent of 11312.65 MT (15476- 4163.87) in connivance with Shri Mahesh Biliye, Port Conservator, Belekeri port (A-1) who was the custodian of the seized iron ore.
10. Shri Mahesh Biliye, Port Conservator, Belekeri Port (A-1) in violation of the Court Order dated 22.03.2010 of JMFC, Ankola for retention of the iron ore, issued the port clearance vide No.45/2011 dated 26.05.2010 to vessel M.V. Columbia by which M/s Sri 52 Mallikarjuna Shipping Pvt. Ltd. (A-2) illegally exported 44500 MTs of iron ore fines, including the seized iron ore belonging to M/s PJS Overseas Ltd. and received sale proceed towards export realization of US$ 5080676.87 equivalent INR 23,59,97,444.00
11. That the aforesaid acts of Shri Mahesh Biliye, Dy. Port Conservator, Belekeri Port (A-1), M/s Shree Mallikarjuna Shipping Pvt. Ltd. (A-2), Shri Satish Krishna Sail (A-3), M/s PJS Overseas Ltd. (A-4) and Shri Pawan Kumar Jain (A-5) constitute criminal offences punishable under sections U/s 120-B, 409, 420 of IPC and Sections 13(2) r/w 13(1) (c) & (d) of PC Act 1988.
37. Learned Special Judge has considered these allegations in extenso and having found that the material produced by the prosecution prima facie make out the ingredients of offences under sections 120-B read with 409, 420 of IPC against petitioner No.2, has proceeded to frame charges for the above offences. I do not find any error or infirmity in the impugned orders warranting interference under section 482 of Cr.P.C.
53Reg. Point No.3:
38. On going through the impugned orders, I find that the learned Special Judge has considered the documents produced by the prosecution in the light of the allegations leveled against the petitioners and has observed that these materials prima facie disclose the involvement of the petitioners in the alleged offences. At the stage of framing charge or hearing on discharge applications, the learned Special Judge was not expected to embark upon any enquiry into the legality or veracity of the documents produced by the prosecution nor could he have appreciated the statements of the witnesses as contended by the learned counsel for petitioner. I have extensively referred to the contents of these documents and I do not find that these documents and the statements referred to by the learned counsel for the petitioner lead to any conclusion or convey any meaning other than the one taken by the learned Special Judge. The documents discussed above belie the contention of the petitioner that he was not aware of the seizure and demarcation of the alleged ore as contended. 54
39. In this regard, it may be relevant to refer to a recent decision of the Hon'ble Supreme Court in M.E.SHIVALINGAMURTHY vs. CBI, 2020 SCC Online SC 5, wherein the legal principles applicable in regard to an application seeking discharge have been summarized by the Hon'ble Apex Court as under:-
"14. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another2 and discern the following principles:
i. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.
ii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.
iii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would 55 consist of the statements recorded by the Police or the documents produced before the Court.
iv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".
v. It is open to the accused to explain away the materials giving rise to the grave suspicion.
vi. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. vii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
viii. There must exist some materials for entertaining the strong suspicion which can form 56 the basis for drawing up a charge and refusing to discharge the accused."
40. As already discussed above, the allegations in the charge sheet are directed against the Petitioner No.1 Company as well as the petitioner No.2. The facts alleged against petitioner No.2 independently constitute the ingredients of the offences mentioned in the charge sheet for which he could be tried at the same trial along with the Company. These allegations are sought to be substantiated with independent material. As a result, I do not find any justifiable reason to interfere with the impugned orders.
41. The argument of learned counsel for petitioner that the proceedings initiated against the petitioner are vitiated on account of the illegality in the seizure of the iron ore by the forest officials and for lack of competence and jurisdiction on the part of the forest officials to seize the said iron ore which is a "mineral" as defined under the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "MMDR 57 Act") and is regulated by the provisions of the MMDR Act is concerned, in my view, it does not affect either the jurisdiction of CBI to investigate into the alleged offences nor does it affect the order passed by learned Special Judge in dismissing the applications filed by the petitioner for discharge.
42. Indisputably, the investigation in the instant case was undertaken pursuant to the orders of the Hon'ble Supreme Court in Writ Petition (Civil) No.562/2009 dated 07.09.2012. In the said order, there was a specific direction to the CBI to immediately institute FIR(s) and to investigate the case(s) relating to (i) illegal extraction of about 50.79 lakhs MT of Iron Ore from the forest areas of Karnataka during the period from 01.01.2009 to 31.05.2010; (ii) the illegal transport of the aforesaid quantity of iron ore from the area(s) of extraction to Belekeri Port and (iii) from there its illegal export to other countries. Pursuant to this direction, separate FIRs were registered by the CBI. R.C.No.14(A) of 2012 relates to the illegal mining in the forest area and transportation thereof without payment of royalty and forest development tax. 58 R.C.No.17(A) of 2012 is registered in respect of iron ore which was under seizure in FOC.17/2009-10. This order and the FIRs registered in respect of the alleged offences therefore make it evident that the scope of investigation essentially related to the period subsequent to the seizure and the consequent order passed by learned Magistrate entrusting the seized material to the custody of accused No.1 namely the Conservator of Ports. In the said circumstances, the illegality, if any, committed by the forest officials in effecting the seizure of the iron ore and even if the said seizure was effected without jurisdiction, it does not concern the CBI, since the investigation was undertaken by the CBI only in respect of the acts committed by the petitioner and other accused subsequent to the seizure and subsequent to the entrustment of the seized property to the custody of accused No.1. Even otherwise, the above FIRs having been registered and investigation having been conducted pursuant to the orders of the Hon'ble Supreme Court, the contention urged by the petitioner in this regard does not furnish a ground to the petitioner to seek discharge under Section 239 Cr.P.C. 59
Consequently, the petitions being devoid of merit are liable to be dismissed and are accordingly dismissed.
In view of dismissal of the petitions, all the pending I.As. are also dismissed as the same do not survive for consideration.
SD/-
JUDGE Bss.mn