Karnataka High Court
R P Trivikram vs State on 1 October, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NOS.14220-14224 OF 2018 (GM-RES)
BETWEEN:
1. R P TRIVIKRAM
S/O SRI LATE R V PRABHAKAR RAO
AGED ABOUT 67 YEARS , EX DIRECTOR,
M/S MYSORE STONEWARE PIPES AND POTTERIES LTD.,
RESIDING AT NO.8, 6TH CROSS
AMARAJYOTHI NAGAR
VIJAYANAGAR
BANGALORE 560040
2. SMT SUDHA TRIVIKRAM
W/O R P TRIVIKRAM
AGED ABOUT 65 YEARS , EX DIRECTOR,
M/S MYSORE STONEWARE PIPES AND POTTERIES LTD.,
RESIDING AT NO.8, 6TH CROSS
AMARAJYOTHI NAGAR
VIJAYANAGAR
BANGALORE 560040
3. W P KRISHNA
EX DIRECTOR, AGED ABOUT 51 YEARS ,
M/S MYSORE STONEWARE PIPES AND POTTERIES LTD.,
RESIDING AT NO.391/1, 8TH CROSS
13TH MAIN, R M V LAYOUT
BANGALORE 560080
4. R V RAGHAVENDRA
S/O SRI VEPRAKALLACHAR
AGED ABOUT 65 YEARS , EX DIRECTOR
M/S MYSORE STONEWARE PIPES AND POTTERIES LTD.,
RESIDING AT NO.91/2,
2
"PARIMALA", BETWEEN 11TH & 13TH CROSS,
4TH MAIN, MALLESWARAM
BANGALORE 560003
5. SRI H K NANJUNDA SWAMY
S/O SRI KAPANI PATHI BHATTA
AGED ABOUT 90 YEARS, EX DIRECTOR
M/S MYSORE STONEWARE PIPES AND POTTERIES LTD
RESIDING AT NO.297, 7TH BLOCK
JAYANAGAR, KANAKAPURA ROAD
BANGALORE 560082
... PETITIONERS
(BY SRI: S.S.NAGANAND, SR. ADVOCATE A/W
SRI:S.S. SRINIVAS RAO, ADVOCATE)
AND
STATE OF KARNATAKA,
BY SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA
BANGALORE-560066
REP BY SUPERINTENDENT OF POLICE.
... RESPONDENT
(BY SRI:A.S.PONNANNA, AAG A/W
SRI: P GOVINDAN, SPL.PP )
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE FIRST
INFORMATION REPORT IN CRIME NO. 3/2017 WITH THE RESPONDENT
- POLICE, VIDE ANNEX-A REGISTERED FOR THE OFFENCES
PUNISHABLE UNDER SEC. 379. 409, 420, 468 AND 471 R/W SEC.
120(b) OF INDIAN PENAL CODE, SECTION 13(1)(d) R/W SEC. 13(2)
OF THE PREVENTION OF CORRUPTION ACT, 1988 AND SEC. 21 AND
23 R/W SEC. 4(1) OF 4(1A) OF THE MINES AND MINERALS
(DEVELOPMENT AND REGULATIONS) ACT, 1957 AND TO GRANT AN
AD-INTERIM ORDER TO STAY OF THE FURTHER INVESTIGATION IN
3
CRIME NO. 3/2017 WITH THE RESPONDENT POLICE STATION VIDE
ANNEX-A REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SEC.
379. 409, 420, 468 AND 471 R/W SEC. 120(b) OF INDIAN PENAL
CODE, SECTION 13(1)(d) R/W SEC. 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND SEC. 21 AND 23 R/W SEC. 4(1) OF
4(1A) OF THE MINES AND MINERS (DEVELOPMENT AND
REGULATIONS) ACT, 1957 TILL DISPOSAL OF THIS PETITION.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.08.2018 AND COMING ON FOR PRONOUNCMENT
THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
ORDER
In these petitions, the petitioners have sought to quash the FIR in Crime No.3/2017 registered for the offences punishable under Sections 379, 409, 420, 468 and 471 read with Section 120(b) of IPC, Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 21 and 23 read with Section 4(1) of 4(1A) of the Mines & Minerals (Development and Regulations) Act, 1957.
2. The allegations made against the petitioners in the FIR are as follows:
"On the request of M/s.MSPPL, the lease of extraction of kaolin was extended for a period of 10 years (revised ML NO.1137) from 06-07- 4 1974 to 05-07-1984 for the entire 640 acres. Subsequently the second renewal was also executed for a period of 10 years (revised ML No.2111) from 06-07-1984 to 05-07-1994. The lessee later filed third renewal application on 03-05-1997 for the entire extent of 640 acres. In response to this, the Director, Mines and Geology, issued a notification dated 01-04-2005 for third renewal for extraction of fire clay (kaolin) over an area of 130 acres for a period of 20 years (ML No.2521) from 06-07-1994. Subsequently a corrigendum was issued by the Director, Mines and Geology, on 16-06-2005 increasing the area to 303.10 acres and this lease deed was executed on 02-06-2006. During the entire lease period (other than the initial few years from 1954), M/s. MSPPL was granted lease only for the extraction of fire clay (kaolin).
It is revealed that on the request of M/s.MSPPL, the Director, Mines and Geology, granted illegal temporary permission for transportation of 4,300 MT of iron ore fines on 07-04-1992. This was done without authority and any legal basis. When the Dy.Director Mines (Squad), Bengaluru, inspected the leased area on 14-12-2010 along with technical staff of the office of the Deputy Director, Mines and Geology, Tumkur, he noticed that the lessee of 5 ML No.2521 had illegally extracted large quantity of iron ore besides, fire clay. In his report he stated that more than 30,000 MT was illegally extracted and stacked in the mine head and that more than 3,00,000 MT of iron ore was illegally extracted and dispatched either by using proxy permits taken for fire clay or without permits during the period from 2003-04 to 2007-08.
Thus it is revealed that the lessee, M/s.MSPPL, conspired with unknown officials of Department of Mines and Geology, who abused their official positions to benefit the lessee and illegally extracted and transported 3,00,000 MT of iron ore on the basis of either proxy permits or without permits and also illegally stacked over 30,000 MT of iron ore at the mine head and thereby cheated the government and caused huge loss to it and corresponding gain to the lessees."
3. Learned Senior Counsel appearing for the petitioners submits that M/s.Mysore Stoneware Pipes and Potteries Ltd., ("M/s.MSPPL" for short) had taken on lease 640 acres of land for extraction of Kaolin for a period of 20 years from 06.07.1954. The said lease was renewed for a further period of 10 years 6 (Revised ML No.1137) till 05.07.1984 for the entire extent of 640 acres. Thereafter, for a second term, the lease was renewed for 20 years from 06.07.1994. Subsequently, the Director of Mines and Geology issued a corrigendum on 16.06.2005 increasing the area to 303.10 acres.
4. The learned counsel submits that during the extraction of Kaolin some iron ore mixed mud was also being extracted and hence, the company obtained transport permit from the Mines and Geology Department and transported 4,300 MT in the year 1992. That being the position, a FIR has been registered against the company alleging that the company has illegally extracted 30,000 MT of iron ore and stacked the same in the mines and illegally extracted and dispatched more than 3,00,000 MT of iron ore either by using proxy permits taken for fire clay or without permits from 2003-04 to 2007-08.
5. The learned counsel submits that the allegations made in the FIR are incredible and the offence is alleged to have taken place between 2003 and 2008. There is nothing on record to indicate the alleged extraction and stacking of iron ore to the 7 volume of 3,00,000 MT. Therefore, the registration of the FIR on the face of it, is illegal and an abuse of process of court. Learned counsel further submits that the FIR is registered by the Superintendent of Police, Special Investigation Team. As per the notification dated 29.05.2014, office of Inspector General of Police, Special Investigation Team, Karnataka Lokayukta was constituted as the police station to take action only in respect of the offences of the illegal mining of minerals and minor minerals as defined under Section 3 of Mines & Minerals (Development & Regulation) Act, 1957. In the instant case, complaint is not lodged by the Inspector General of Police. This illegality vitiates the investigation. Further, the said notification clearly lays down that the Inspector General of Police, Special Investigation Team is empowered to submit his report to the Hon'ble Lokayuktha. He is not empowered under the said notification either to initiate criminal action or direct any of his subordinate to lodge complaint. Therefore, the action initiated against the Company and its directors is without authority and jurisdiction and therefore, the impugned FIR is liable to be quashed. 8
6. In support of his arguments, the learned Senior counsel has drawn sustenance from the order passed by the Division Bench of this court in W.P.No.7335/2017 wherein action initiated against one Deepchand Kishanlal seeking recovery of a sum of Rs.215.75 Crores on the premise that the said Company had extracted iron ore from the leased area was quashed. It is the submission of the learned Senior Counsel that in respect of the said land, there was overlapping of the land leased to the Deepchand Kishanlal for excavation of iron ore and considering the scope of the lease, alleged illegalities levelled against the said Deepchand Kishanlal, the Court has clearly held that the respondent police have no jurisdiction to initiate action for the alleged offence.
7. Meeting the above arguments, the learned Additional Advocate General at the outset submits that none of the petitioners herein are named as accused in the FIR. The FIR is registered only against the Company. The petitioners have no locus-standi to challenge the registration of the FIR for the alleged illegalities committed by M/s.MSPPL. The matter is under 9 investigation. Therefore, on the basis of contentions urged by the petitioners, the proceedings cannot be quashed. In so far as the competence of Superintendent of Police, Lokayuktha is concerned, police to investigate into the alleged offences, the learned SPP would submit that as per the notification dated 25.09.2014, the Inspector General of Police had submitted a detailed report to the Lokayuktha. The said report was placed before the Government as required under Section 12(3) of Karnataka Lokayuktha Act, pursuant to which, the Special Investigation Team was constituted vide notification dated 22.11.2013. The said notification empowers the Lokayuktha police to investigate into the class of cases detailed therein which includes the instant case. Therefore, there is no illegality whatsoever in registering the FIR and initiating criminal action in respect of the offences. Further, the learned Additional Advocate General submits that after the constitution of Special Investigation Team as police station within the meaning of Section 2(s) of Cr.P.C., any officer-in-charge of the police station is empowered to lodge the complaint and to initiate action for the offences falling under the provisions of Indian Penal Code, 10 Prevention of Corruption Act, MMDR Act as well as other allied Acts. Hence, there is no illegality whatsoever in the action taken against the petitioners.
8. In the light of the above contentions, the points that arise for consideration are as under:
(1) Whether the SIT, Karnataka Lokayukta is authorized to register the FIR and to investigate into the alleged offences?
(2) Whether the allegations made against the petitioners prima facie constitute the ingredients of the offences alleged against them in the FIR?
9(i). Point No.1:
The material on record indicates that Government of Karnataka referred several issues concerning illegal mining in the State to the Hon'ble Karnataka Lokayukta for investigation under section 7(2-A) of the Karnataka Lokayukta Act 1984 vide its order dated 12.03.2007 and 09.09.2008. Pursuant to the second report of the Hon'ble Lokayukta dated 27.07.2011, the State 11 Government constituted a High Level Committee for implementation of the recommendations and observations made in the Lokayukta Report in the Government Order dated 18.08.2011.
(ii) The Hon'ble Lokayukta has dealt with a large number of cases pertaining to illegal mining issues in several Chapters in the second report dated 27-7-2011 and has recommended further investigations on several issues by competent agencies. The High Level Committee after examining the detailed investigation report part - II recommended various measures and actions to be taken by the State Government. One of the recommendations of the High Level Committee was to form a Special Investigation Team (SIT). Accordingly a Special Investigation Team (SIT) under the chairmanship of Sri.Deepak Sharma, Additional Principal Chief Conservator of Forests, an inter-disciplinary team of experts comprising of Heads of various Departments was constituted vide order dated 09.01.2012 to carry out further investigation in a total of 26 issues pertaining to illegal mining in the State.
12
(iii) In the meanwhile, the Hon'ble Supreme Court in its order dated 16.09.2013 in an Interlocutory Application No.189 of Writ Petition 562/2009 has permitted the CBI to refer the matters with respect to the exporters who had exported less than 50,000 MTs and were not enquired into in the preliminary enquiry and also has permitted the CBI to refer the cases of exporters who had exported less than 50,000 MTs of iron ore without valid permits to refer to the Government of Karnataka for taking further necessary action under the relevant laws as recommended by the Central Empowered Committee report dated 5-9-2012.
(iv) Accordingly, the Government took a Cabinet decision to refer all the issues mentioned in the annexure to Government Order No:CI 282 MMM 2011 dated 09.01.2012 to the Hon'ble Lokayukta for further investigation by the Lokayukta Police except three issues. Accordingly, the Government issued order NO.CI.282:MMM.2011(P), Bengaluru dated 22.11.2013 which reads as follows:
GOVERNMENT ORDER NO.CI.282:MMM.2011(P), BENGALURU, DATED:22.11.2013 13 The State Government, after considering the recommendations of Hon'ble Lokayukta in the second part of the report dated: 27-7-2011 for cases where there is need for further enquiry, and as per the Order passed by the Hon'ble Supreme Court dated:
16.09.2013 in I.A.No.189 of Writ Petition No.562/2009, The Government in Suppression of the earlier orders No.CI 282 MMM 2011 Dated:09.01.2012 and 25.06.2012 hereby entrusts such cases enumerated comprehensively in the Annexure-A of this Government Order for detailed investigation to the Hon'ble Karnataka Lokayukta for further investigation by the Lokayukta Police and to proceed with criminal prosecutions if necessary.
BY ORDER AND IN THE NAME OF THE GOVERNOR OF KARNATAKA (K.VENKATESH), Under Secretary to Government (Mines) (I/c) Commerce & Industries Department.
(v) As could be seen in Annexure-'A' appended to the said order, the issues referred to the Hon'ble Lokayukta for further investigation are listed therein. The illegalities pertaining to the petitioners herein find mention in the said Annexure-'A'. Therefore, the argument of the learned counsel for the petitioners that the SIT, Karnataka Lokayukta has no jurisdiction to register FIR and investigate into the alleged offences is liable to be rejected. Accordingly, said contention is rejected. 14
(vi) In so far as the investigation into the offences under the provisions of the MMDR Act is concerned, it is also a matter on record that the registration of the FIR in Crime No.32/2014 was challenged by one of the accused Linganagouda and others in Criminal Petition Nos.5684/2015, 5686/2015, 5945/2015 and 6689/2015. A prayer was made therein for quashing the entire proceedings and FIR in Crime No.32/2014. This court vide order dated 28.03.2017 quashed the entire proceedings and FIR in Crime No.32/2014. Aggrieved by the said order, the SIT, Karnataka Lokayukta preferred an appeal before the Hon'ble Supreme Court of India in Special Leave to Appeal (Criminal) Nos.6244-6251 of 2017 and the Hon'ble Supreme Court of India (Criminal Appellate Jurisdiction) has passed an order in Criminal Appeal Nos.1777-1784/2017 (arising out of SLP (Crl.) Nos.6244- 6251 of 2017) on 12.10.2017 setting aside the order passed by this Court which reads as under:
"The Deputy Superintendent of Police, Karnataka Lokayukta, filed a complaint dated 30.05.2014 addressed to Police Inspector, Karnataka Lokayukta Police Station, making allegations of illegal mining by certain private persons in collusion with the public servants. When the said allegation was being investigated, 15 the respondents filed a petition before the High Court under section 482 of Code of Criminal Procedure 1973 challenging the proceedings on the ground that the cognizance of the offence under section 22 of the Mines and Minerals (Development and Regulation) Act,1957 can be taken only a complaint of a specifically authorized person. This plea has been upheld by the High Court and proceedings quashed.
We find that the stage of cognizance will arise only after investigation is completed and there is no bar to the investigation being carried out by the Lokayukta Police on the complaint in question particularly when the allegation include offence under the Prevention of Corruption Act, 1988. In this view of matter, the impugned order cannot be sustained.
Accordingly, the impugned order is set aside and appeals are allowed. The concerned Police may carry out the investigation and proceed in accordance with law."
(vii) In the light of the above order, even the contention urged by the petitioners that the SIT has no jurisdiction to register the FIR and investigate into the alleged offences is liable to be rejected.
10. POINT No.2:
Coming to the allegations made in the FIR are concerned, on careful reading of the FIR, it is noticed that before registering the FIR, a preliminary enquiry was conducted and a source 16 report was prepared and it was ascertained that illegal quarrying activities, extraction of iron ore and transportation was being carried on in by the Company in violation of the terms of lease.
There are specific allegations that the Company had illegally extracted large quantity of iron ore besides fire clay. There are specific allegations that more than 30,000 MT was illegally extracted and stacked in the mine head and that more than 3,00,000 MT of iron ore was illegally extracted and dispatched either by using proxy permits taken for fire clay or without permits during the period from 2003-04 to 2007-08. There are also allegations that M/s.MSPPL conspired with the officials of Department of Mines and Geology. Therefore, it cannot be said that the FIR did not disclose any ingredients of the offences or that the investigation was commenced without any basis.
Supporting documents are also seem to have been produced in support of the allegations made in the FIR. All these allegations necessarily require to be investigated.
11. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an 17 order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
12. In MACHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others, 1988 Cri.L.J. 853, it is held that:
"The legal position is well settled that when a prosecution at the initial stage is asked to be 18 quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."
13. In the instant case, as already stated above, the criminal action is initiated after due enquiry based on the source report which prima facie makes out serious violation and contravention of the statutes. The Magnitude of the transactions and the ramification of the offences are required to be unearthed in a thorough and penetrating investigation. On careful consideration of the allegations made in the charge-sheet and the material produced by the respondent before the Court, I do not find any justifiable reason to interfere with the FIR and the investigation initiated thereon. The allegations made in the FIR prima facie make out ingredients of the offences alleged therein. The SIT is duly authorized and competent to investigate into the matter. No prejudice would be caused to the petitioners if the 19 alleged violations are investigated by the respondent. None of the petitioners are shown as accused in the FIR. The exact role played by each of the petitioners could be ascertained only after investigation. If the investigation leads to the final opinion that the alleged offences are committed without the knowledge and connivance of the petitioners, the charges against the petitioners would naturally be dropped. Therefore, the apprehension of the petitioners that the proceeding initiated in Cr.No.3/2017 has resulted in abuse of process of court is ill-founded. The petitioners have failed to make out any justifiable ground to quash the FIR and the consequent investigation. As a result, the petitions are liable to be dismissed.
Accordingly, all the above petitions are hereby dismissed.
Sd/-
JUDGE Bss.