Karnataka High Court
B S Panduranga Singh vs State Of Karnataka on 12 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL. P. NO.4420/2017
c/w
CRL. P. Nos 4421/2017, 4422/2017,
4423/2017,4425/2017,4426/2017,4427/2017,
4428/2017,4429/2017, 4430/2017,
4431/2017 & 8498/2015,
IN CRL.P.NOs.4420/2017, 4421/2017,
4422/2017, 4423/2017,4425/2017,
4426/2017,4427/2017, 4428/2017,
4429/2017, 4430/2017 & 4431/2017
BETWEEN
1. B. S. PANDURANGA SINGH
AGED ABOUT 48 YEARS
S/O B. H. SHANKAR SINGH
R/AT NO 1131,SIDDANAGOUDA
COMPOUND TO ANAJANEYA TEMPLE,
RANIPET, HOSPET,
BALLARY - 583 201.
2. B. S. GOPAL SINGH
AGED ABOUT 51 YEARS
S/O B H SHANKAR SINGH
R/AT NO 1131, SIDDANAGOUDA
COMPOUND TO ANAJANEYA TEMPLE,
RANIPET, HOSPET,
BALLARY - 583 201. ... PETITIONERS
(COMMON IN THE ABOVE
NOTED PETITIONS)
(BY SRI. RAVI L.VAIDYA, ADVOCATE)
2
AND
STATE OF KARNATAKA
BY SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
ATIC BUILDING, UNIVERSITY OF
VETERINARY SCIENCE CAMPUS,
HEBBAL, BANGALORE-40.
... RESPONDENT
(COMMON IN THE ABOVE
NOTED PETITIONS)
(BY SRI. VENKATESH.S.ARBATTI, SPL.PP &
SRI.B.S.PRASAD, SPL.PP)
THE CRIMINAL PETITION NO.4420/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.33/2015 DATED 19.12.2015 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT-POLICE, AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4421/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.36/2015 DATED 26.12.2015 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT-POLICE, AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4422/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
DATED 11.12.2015 AT DOCUMENT NO.1 ON THE FILE OF THE
RESPONDENT-POLICE, AS AGAINST THE PETITIONERS AND
ETC.,
THE CRIMINAL PETITION NO.4423/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.34/2015 DATED 21.12.2015 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT POLICE AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4425/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
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NO.10/2016 DATED 10.09.2016 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT-POLICE, AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4426/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.20/2015 DATED 09.10.2014 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT-POLICE AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4427/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.32/2015 DATED 26.12.2015 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT POLICE AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4428/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.6/2016 DATED 29.03.2016 AT DOCUMENT NO.1 ON THE
FILE OF THE RESPONDENT POLICE AS AGAINST THE
PETITIONERS AND ETC.,
THE CRIMINAL PETITION NO.4429/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
DATED 17.10.2015 AT DOCUMENT NO.1 ON THE FILE OF THE
RESPONDENT POLICE AS AGAINST THE PETITIONERS AND
ETC.,
THIS CRIMINAL PETITION NO.4430/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE ORDER TAKING
COGNIZANCE AND ISSUING SUMMONS TO THE
PETITIONERS DATED 08.11.2016 PASSED BY THE XXIII
ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE FOR
LOKAYUKTHA CASES AT BANGALORE IN SPL.C.C.
NO.467/2016 AT DOCUMENT NO.2 AND ETC.,
THIS CRIMINAL PETITION NO.4431/2017 IS FILED U/S.
482 OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET
NO.07/2016 DATED 06.05.2016 AT DOCUMENT NO.1 ON THE
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FILE OF THE RESPONDENT POLICE AS AGAINST THE
PETITIONERS AND ETC.,
IN CRL. P. NO.8498/2015,
BETWEEN
1. H.SAJJAD WAHAB
AGED ABOUT 42 YEARS,
S/O H.ABDUL WAHAB,
R/O MBT HOUSE, WARD NO.4,
DOOR NO.377/1, PATEL NAGAR,
HOSPET, BELLARY-583 201.
2. H.ABDUL WAHAB
AGED ABOUT 70 YEARS,
S/O LATE H. HUSSAIN PEER WAHAB,
R/AT NO.11, 3RD CROSS,
NANDI DURGA ROAD EXTENSION,
JAYAMAHAL, BANGALORE-46.
... PETITIONERS
(BY SRI.RAVI L.VAIDYA, ADVOCATE)
AND
STATE OF KARNATAKA
BY SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
ATIC BUILDING, UNIVERSITY OF
VETERINARY SCIENCE CAMPUS,
HEBBAL, BANGALORE-40.
... RESPONDENT
(BY SRI.VENKATESH.S.ARBATTI,SPL.PP &
SRI.B.S.PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C.
PRAYING TO QUASH THE CHARGE SHEET NO.03/2015 DATED
21.09.2015 AT ANNEXURE-A ON THE FILE OF THE
RESPONDENT POLICE, ETC.
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THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.11.2020 AND COMING ON
FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO
CONFERENCE, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner Nos. 1 and 2 have challenged the order of taking cognizance and issuance of summons to them by the Special Judge and have sought to quash the proceedings initiated against them for the alleged offences punishable under Sections 379, 409, 420, 471, 120(B) of IPC and Sections 21, 23 r/w 4(1) and 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
2. The details of the proceedings and the rank of the petitioners in the respective crime and the gist of the allegations made against them are narrated in the table here below:-
Rank Criminal of the Crime No. Spl.CC. Gist of the allegations Proceedings petitioners No. Crl.P. No. A7 & A6 19/2014 12/2016 The petitioners being the partners of 4420/2017 M/s. S.B. Minerals and M/s. M/s.
Ramgopal Minerals, sold 20000 Metric Tons of Iron Ore through M/s.
Ramgopal and M/s. Vaishnavi Minerals without valid permit and without 6 payment of the fees to the Forest Department and without invoice and also transported and exported 1809 Metric Ton of Iron Ore to M/s. Eagle and thereby caused a total loss of Rs.19,85,457.66 to the State Exchequer.
Crl.P. No. A14 & A13 24/2014 53/2016 The petitioners being the Partners of 4421/2017 M/s.S.B. Minerals sold 8395 Metric Tons of Iron Ore to M/s. Eagle Traders and in turn it sold the same to M/s. Jajalani International without valid permit and without payment of requisite fees and credited the proceeds to the personal account of Sri. Anand Singh (A.12) and thereby caused a total loss of Rs.1,04,72,810/- to the State Exchequer and thereby committed the offence punishable under Sections 409, 120(B) of IPC.
Crl.P. No. A7 & A6 22/2014 596/2015 The Petitioners being the Partners of 4422/2017 M/s. S.B. Minerals, along with other persons, entered into a criminal conspiracy and in furtherance thereof sold 25111 Metric Tons of Iron Ore to M/s. Eagle Traders & Logistics without obtaining prior permit and without payment of Royalty and other charges to the Forest Department and thereby caused a total loss of Rs.3,83,03,720/-.
Crl.P. No. A7 & A6 10/2014 19/2016 The petitioners being the Partners of 4423/2017 M/s. S.B. Minerals entered into a criminal conspiracy with M/s. Eagle Traders and Logistics, M/s. L & B Exports and Imports and in furtherance thereof, transported 8562 Metric Tons of Iron Ore from the mining area of M/s. S.B. Minerals to the Belikere Port without payment of royalty and other charges and thereby caused a total loss of 7 Rs.1,02,13,989/- to the State Exchequer.
Crl.P. No. A4 & A3 14/2015 488/2016 The petitioners being the Partners of
4425/2017 M/s. S.B. Minerals, illegally sold
11941.13 Metric Tons of Iron Ore to
M/s. Eagle Traders and Logistics and
thereby caused a total loss of
Rs.1,53,26,395/- to the State
Exchequer.
Crl.P. No. A3 & A4 23/2014 597/2015 The petitioners being the Partners of 4426/2017 M/s. S.B. Minerals having extracted 44912 Metric tons of Iron Ore from its mining lease area (No.2515), sold the same to Accused No.1 through M/s.
Vaishnavi Minerals, which is a propriety concern of Accused No.2, without valid permit and without payment of Royalty and transported 10146 Metric Tons of Iron Ore in collusion with Accused Nos. 1 to 4 and 5, and thereby caused a total loss of Rs.1,22,03,534/- to the State Exchequer.
Crl.P. No. A5 & A6 18/2015 459/2016 The petitioners being the Partners of 4427/2017 M/s. S.B. Minerals (ML No.2515) entered into a criminal conspiracy with Accused Nos.3, 4, 6 & 7 and illegally sold the 10571.020 Metric Tons of Iron Ore to Accused No.3 without valid permit and without payment of Royalty and other charges to the Department and thereby caused a total loss of Rs.1,61,24,782/- to the State Exchequer.
Crl.P. No. A6 & A7 01/2014 471/2016 The petitioners Being the Partners of 4428/2017 M/s. S.B. Minerals, in conspiracy with Accused Nos.5, 7 & 8 , having illegally extracted the Iron Ore from M/s. S.B. Minerals Mining Area, sold the same by fabricating false documents in collusion with M/s. Eagle traders and Logistics and created false documents as if obtained from 8 Government of Andhra Pradesh and sold 5804 Metric Tons of Iron Ore to M/s. Madia Enterprises, and out of 3995 Metric Tons, sold 382 Metric tons of Iron Ore to M/s. Akshatha Minerals and 10000 Metric Tons to M/s Spins Minerals ad 178 Metric Tons to M/s. F.K. Associates and thereby caused a total loss of Rs,2,65,25,936/- to the State Exchequer.
Crl.P. No. A.10 & 28/2014 551/2015 The petitioners being the Partners of 4429/2017 A.11 M/s. S.B. Minerals, in conspiracy with M/s. Eagle Traders and Logistics and M/s. Muneer Enterprises, illegally sold 18206.27 Metric Tons of Iron Ore to M/s. Eagle Traders and Logistics to M/s. Oriental Logistics Company, who in turn sold the same to M/s. Muneer Enterprises, without securing prior permission and without payment of Royalty and the proceeds of the said transactions were transferred to the personal account of Sri. B.P. Anand Kumar @ Anand Singh (A9) and thereby caused a total loss of Rs.,3,13,66,926/- to the State Exchequer.
Crl.P. No. A6 & A5 15/2015 467/2016 The petitioners being the Partners of 4430/2017 M/s. S.B. Mineral, sold 9501.710 Metric Tons of Iron Ore illegally stocked in the Mining Area of M/s.
S.B. Minerals (ML No.2515) and the same was shown as being transported from the mining area of M/s. S.B. Minerals and thereby caused a total loss of Rs.8,68,21,925/- to the State Exchequer.9
Crl.P. No. A8 & A7 17/2015 469/2016 The petitioners being the Partners of 4431/2017 M/s. S.B. Minerals, sold 6002 Metric Tons of Iron Ore to M/s. ILC Industries and transported the same to Belekeri Port without raising invoice and without permit and without disclosing transportation details and on account of the illegal transportation, and caused a total loss of Rs.72,42,658/- to the State Exchequer.
Crl.P. No. A1 & A2 11/2014 499/2015 The Petitioners being the Partners of a 8498/2015 Registered Firm by name M/s.
Sameera trading, Hosapete, illegally transported 1923.325 Metric Tons of Iron Ore in excess of the permit obtained by them for transportation of 36455 Metric Tons and thereby caused a loss of Rs.7,02,165/- to the State Exchequer.
3. The contentions of the learned counsel for the petitioners are follows;
i) The allegations levelled in the charge sheet are directed only against the Firm. The firm is not made as a party/accused. Therefore, the prosecution of the petitioners, without making the Firm as a party, is illegal and untenable.
ii) The allegations made in the charge sheet do not prima facie disclose the ingredients of the offences so far as the petitioners are concerned; these allegations are not supported by any cogent materials; there is no acceptable evidence to show that the petitioners were involved in the 10 alleged transaction and therefore, the learned Magistrate has committed an error in issuing summons to the petitioners.
iii) Except in Criminal Petition Nos.4428/2017, 4425,2017, 4430/2017, 4431/2017, 4427/2017 and 8498/2015, the impugned order passed by the learned Special Judge does not reflect either application of mind or consideration of the material on record and therefore, solely on these grounds, the impugned order of cognizance and consequent order of summons issued to the petitioners are liable to be quashed.
iv) The order of cognizance passed by the learned Magistrate in relation to the offence under the provisions of MMDR Act is wholly illegal and without jurisdiction in view of the bar contained under Section 22 of the MMDR Act. In the absence of any complaint by the authorized officer, the learned Special Judge was not empowered to take cognizance of the alleged offences.
v) Offence alleged under the provisions of the MMDR Act being the principal offences in view of the defect in the cognizance order, even the cognizance taken by the learned Special Judge for the offence under the Penal Provisions and 11 the Forest Act are also bad in law. Thus, the learned Counsel for the petitioners has sought to set aside the respective proceedings initiated against the petitioners and to quash the impugned orders passed by the learned Special Judge.
4. Meeting the above arguments, learned Special Public Prosecutor appearing for the respondent would submit that, cogent material has been collected by the Investigating Agency in proof of the involvement of petitioners in the alleged offences. Every allegations made in the charge sheet are supported by documents or the statements of the concerned witnesses to show that the petitioners were personally involved in the alleged transactions. The petitioners are prosecuted in their individual capacity. Alleged transactions are entered into by them in their individual capacity and not as Partners of the Firm and therefore, the prosecutions are validly instituted. In so far as the defects highlighted to by the learned counsel for the petitioner in the matter of taking cognizance of the offences is concerned, learned counsel would submit that, in compliance of the requirement of Section 22, complaints have been filed by authorized officers before the Special Court except in 12 Criminal Petition No.4431/2017 (Crime No.17/2015); as a result, there is full compliance of requirement of Section 22 of the MMDR Act and therefore, there is no illegality or defect whatsoever in the cognizance taken by the learned Special Judge as sought to be canvassed by the learned Counsel for the petitioners.
5. The last submission made by the learned Special Public Prosecutor with regard to filing of the complaint by the authorized officer is disputed by the learned counsel for the petitioners contending that the person, who filed the complaint has been authorized under the notification issued by the State Government on 21.01.2014. The said notification has not been laid before each House of the State Legislature as required under Section 28 of the MMDR Act and therefore, the said notification does not empower the person to present any complaint before the Court. In this regard, learned counsel for the petitioner has placed reliance on the decision in (2017) 3 SCC Page 1 [K.K. Singh Vs. State of Bihar] and AIR 1960 SC 430 [Narendra Kumar and Others Vs. Union of India].
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6. In the light of the above contentions, the points that arise for consideration are:
1. Whether the prosecution of the petitioners without making the Firm an accused is tenable under law and facts of these cases?
2. Whether the order of Cognizance and summons issued by the learned Special Judge suffers from illegalities vitiating the proceedings initiated against the petitioners?
3. Whether the charge sheet materials prima facie discloses the commission of alleged offences by the petitioners?
Point No.1
7.As could be seen from the above narration, petitioners have been implicated in the alleged offences in their individual capacity and not as alter ego of the company. There are no allegations in the entire charge sheet that the alleged offences were committed by the firm or company. The question of making the firm or the company an accused would arise only when such company commits an offence involving mens rea, it would normally be the intent and action of the individual 14 who would act on behalf of the company. Only then, 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. This is the law laid down in SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION, (2015)4 SCC 609 (paras 40, 42 and 43), which is extracted herebelow:-
"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.
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 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 15 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."
8. In the instant cases, the allegations are directed only against the petitioners. The evidence gathered by the Investigating Officer also disclose that the proceeds of the crime were credited to the joint account of the petitioners and not of the firm. The role played by the petitioners has been narrated. It is not the case of the respondent that the alleged acts were committed by the petitioners for and on behalf of the company. They are not prosecuted in their capacity as the partners of the firm because they were partners. Therefore, the contention of the petitioners that the prosecution launched against them is bad for non-prosecution of the firm or the company does not hold water. Point No.2
9. Validity of Order of Cognizance and Summons:
On perusal of the order sheets maintained by the Special Court in the respective proceedings, it is noticed that except in Criminal Petition Nos. 4428/2017, 4425/2017, 16 4430/2017, 4431/2017, 4427/2017 and 8498/2017 identical orders have been passed by two successive Presiding Officers of the Special Court taking cognizance of the offences and issuing summons to the petitioners. A specimen of the said order in Special C.C.No. 12/2015 is reproduced hereinbelow:
"Perused the final report. Cognizance is taken against accused No. 1 to 7. Register the case against accused No. 1 to 7. Register the case and issue summons to accused No. 1 to 7 returnable by
10.2.2016."
10. As rightly submitted by the learned counsels appearing for the respective petitioners/accused that this order does not specify the offences in respect of which cognizance has been taken by the Special Court. It is also not forthcoming in these orders as to whether cognizance has been taken in respect of the offences under IPC or under the provisions of MMDR Act or Forest Rules. In other cases, a detailed order has been passed taking cognizance of specific offences and accordingly, summons have been issued to the petitioners. Nonetheless, it is submitted at the Bar that the summons issued to the respective accused contained the details of the offences for which the summons were issued. 17 Records also indicate that on appearing before the learned Special Judge, the petitioners moved for bail based on the offences mentioned in the summons. Therefore, it is clear that right from the inception, the petitioners were aware of the offences for which summons were issued to them. It is in this background, the objection raised by the petitioners/accused questioning the correctness and legality of the order of cognizance and the consequent summoning order issued by the Special Court requires to be considered.
11. What is taking cognizance is not defined in the Criminal Procedure Code. But, it is now well settled that any Magistrate who takes cognizance of an offence must apply his mind to the facts of the case for the purpose of proceedings in a particular way. In R.R.CHARI vs. STATE OF UTTAR PRADESH, AIR(38) 1951 SC 207, the Hon'ble Supreme Court relying on the dicta on GOPAL MARWARI AND OTHERS vs. EMPEROR, AIR (30) 1943 Pat. 245, has observed that, "the word 'cognizance' was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings". Section 209 of the Code also provides for 18 taking cognizance of the offence by the Magistrate while committing the case to the Sessions Court for trial but, the cognizance taken by the Magistrate under Section 209 is quite different from the cognizance taken by the Magistrate under Section 190(1)(a) of the Code or the cognizance taken by the Sessions Court before commencing the trial after committal. In the instant case, undisputedly, the learned Special Judge has proceeded to take cognizance of the alleged offences after the submission of the final report by SIT.
12. The reading of the cognizance orders passed by the learned Special Judge clearly indicate that on perusal of the charge sheet submitted by the SIT learned Special Judge has taken cognizance of the alleged offences purportedly under Section 190(1)(a) of the Code and has proceeded to issue summons to the petitioners/accused, as such, there cannot be any difficulty in holding that by considering the facts of the case as borne on the final report, the learned Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act.
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13. It is trite law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 of the Code, law does not require the Magistrate to pass elaborate order recording reasons for issuance of summons; though the order must reflect that he has considered the final report and satisfied himself that there is sufficient ground for proceeding against the accused named in the final report.
14. In BHUSHAN KUMAR vs. STATE OF (NCT OF DELHI), (2012) 5 SCC 424, the Hon'ble Supreme Court has reiterated the requirement of application of mind in the process of taking cognizance and following the decision in CHIEF ENFORCEMENT OFFICER vs. VIDEOCON INTERNATIONAL LIMITED, (2008) 2 SCC 497, has held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs 12 and 13 of the decision in CHIEF ENFORCEMENT OFFICER, read as under:-
"12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on 20 which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued."
15. In the backdrop of the above principle, if the order of cognizance and the summons issued by the learned Magistrate in the instant cases is analyzed, it is clear from the above order that on consideration of the final report submitted by SIT, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioners. Therefore, there can be no difficulty in upholding the validity of the cognizance taken by the learned Special Judge and the summons issued to the petitioners insofar as the IPC and Forest offences are concerned. 21
16. However, in respect of the offences under the provisions of MMDR Act are concerned, Section 22 of the Act creates a restriction on the courts in taking cognizance of the offences under the Act. The Section reads as under:
"22. Cognizance of offences.― No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government."
17. Learned counsel for the petitioners/accused has placed heavy reliance on the decision of the Hon'ble Apex Court in the case of STATE (NCT OF DELHI) vs. SANJAY, (2014) 9 SCC 772, in paragraph 70, wherein it is held as under:
" 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition 22 contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under the Penal Code."
(underlining supplied)
18. What emerges from the above decision is that based on the final report filed under Section 173 of the Code, the Special Court cannot take cognizance of the offences under the provisions of the MMDR Act. Apparently, to get over this restriction, the respondent appears to have filed a complaint in each of the proceedings before the Special court (except in Criminal Petition No. 4431/2017 (Special C.C.No.469/2016) in terms of Section 22 of the MMDR Act. The learned Special Public Prosecutor for the respondent has made available copies of the complaints filed by the authorized officer before the learned Special Judge which contain the very same allegations as found in the charge sheet submitted by SIT. These complaints therefore could be taken as due compliance of the statutory requirement prescribed in Section 22 of the MMDR Act. But the question still remains to be considered is, whether by mere filing the complaint, can it be said that the Special Court has taken 23 cognizance of the offence based on the said complaint as mandated in Section 22 of the MMDR Act?
19. Though it is vehemently argued by the learned counsel for the petitioners/accused that such exercise has not been done by the Special Court as the impugned order of cognizance does not reflect that the learned Special Judge has looked into the averments made in the complaint yet, what is significant to be noted is that the allegations made in these complaints as well as the facts constituting the offences alleged against the petitioners/accused in the final report filed by the SIT are one and the same. Under the said circumstance, if the learned Special judge has looked into the allegations made in the final report filed by the SIT and on satisfying himself that these allegations prima facie disclose the commission of offences by the petitioners/accused under IPC as well as under the MMDR Act, it could possibly be held that the learned Special Judge has taken cognizance of the offences in terms of Section 22 of MMDR Act.
20. In drawing the above conclusion, I am fortified by the observations of the Hon'ble Supreme Court in the case of 24 FAKHRUDDIN AHMAD vs. STATE OF UTTARANCHAL AND ANOTHER, (2008) 17 SCC 157, wherein it is observed that "whether Magistrate has or has not taken cognizance of offence will depend upon circumstances of the particular case, including mode in which case is sought to be instituted and the nature of preliminary action". No doubt, even in the said case it is held that "before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of accusations and applied his mind to allegations made in complaint or in police report or information received from a source other than a police report, as the case may be, and material filed therewith. It is only when the Magistrate applies his mind and is satisfied that allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offenders, that it can be positively stated that he has taken cognizance of the offence."
21. Similar view is taken in MEHMOOD UL REHMAN vs. KHAZIR MOHAMMAD TUNDA AND OTHERS, (2015) 12 SCC 420, wherein it is held that "though no formal or speaking or reasoned orders are required at the stage of Ss.190/204 25 CrPC, there must be sufficient indication in the order that the Magistrate is satisfied that: (i) the facts alleged in the complaint constitute an offence, and (ii) these facts when considered along with the statements recorded under S.200 CrPC and the result of inquiry or report of investigation under S.202 CrPC, if any, prima facie make the accused answerable before the criminal court."
22. As the impugned orders and the records of the proceedings disclose that the learned Special Judge has considered the material placed before him namely, the charge sheet which contain identical allegations as found in the complaint filed by the authorized officer under Section 22 of the Act, I hold the cognizance taken by the learned Special Judge and the summons issued by him in respect of MMDR offences is in accordance with Section 22 of MMDR Act.
23. Viewed from another angle, on filing a complaint either under Section 200 CrPC or under Section 22 of MMDR Act, the course open for the Court/Magistrate was either to take cognizance based on the facts alleged in the complaint or to refer the complaint for investigation under Section 156(3) 26 of CrPC or to postpone the process and hold an enquiry in terms of Section 202 of CrPC. In the instant cases, detailed investigation into the alleged offences having already been undertaken by SIT pursuant to the directions of the Hon'ble Supreme Court and necessary evidence having been collected in respect of the alleged offences, the Special Court could not have ordered a parallel investigation nor could it have rejected the final report. It is not the case of the petitioners that the report submitted by the SIT is without authority of law. Even otherwise, investigating of the offenses is within the domain of the police and the power of the police officer to investigate into cognizable offence is not ordinarily impinged by any fetters. There is no provision under the MMDR Act that the appropriate authority alone shall investigate any complaint of breach of any of the provisions of the MMDR Act. As observed by the Hon'ble Supreme Court in KANWAR PAL SINGH vs. THE STATE OF UTTAR PRADESH (Crl.Appeal No.1920/2019, arising out of SLP (Crl.) No.10707/2019, dated December, 18, 2019), "the violation of Section 4 being cognizable offence, the police could always investigated the same, there being no bar under the MMDR Act". Therefore, it 27 follows that when the police have the power to investigate the contraventions of Section 4 of the Act, they have also the power to submit the final report. Therefore, no illegality could be attached to the final report and the evidence collected by the police officers in proof of the offences investigated by them under the Act. This report, therefore, cannot be excluded from consideration while taking cognizance of the offence under the Act, provided a complaint as required under Section 22 is filed by the authorized officer. If the argument of the learned counsel for the petitioners is accepted, despite there being a report on investigation, the Court has to either order for fresh investigation or hold an enquiry under Section 202 of Cr.PC, which would tantamount to nullifying the investigation ordered by the Hon'ble Supreme Court and the Government of Karnataka, which in the circumstances of the case cannot be permitted. It is a cardinal principle of law that every law is designed to further the ends of justice and shall not be frustrated on mere technicalities. When the law authorizes the police/SIT to investigate the offences including the offences under the MMDR Act, the said report cannot be excluded from consideration at the stage of cognizance or 28 issuance of summons to the accused subject to the compliance of the requirements of Section 22 of the Act.
24. In the light of these principles and for the reasons discussed above, and especially keeping in mind the peculiarities of the present case and the special circumstances arising on account of the investigation report submitted by SIT, in my view, the course adopted by the learned Special Judge in considering the final report for issuing process to the petitioners cannot be faulted with. Likewise, as held in the above decisions, non recording the reasons by the Special Court while issuing summons to the petitioners also cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioners. In the circumstances of the case, even if there is an error or omission on the part of the learned Special Judge, it is not something so vital as to cut at the root of jurisdiction so as to render the impugned orders illegal or without jurisdiction so as to quash the entire proceedings as sought for by the petitioners. Since the petitioners were notified of the offences at the earliest point of time before their appearance, there is substantial compliance of the "outward forms of the law" as held by the Constitution Bench 29 of the Apex Court in WILLIE (WILLIAM) SLANEY vs. STATE OF MADHYA PRADESH, AIR 1956 SC 116.
25. As a result, I hold that the impugned orders of cognizance and the subsequent orders of summons issued by the learned Special Judge do not suffer from any error or illegality vitiating the proceedings pending against the petitioners. Point No.2 is answered accordingly. Point No.3
26. The allegations made in the respective complaints which are duly supported by the material collected by SIT during investigation undoubtedly make out the ingredients of the offences under Sections 379, 409, 420, 471, 120(B) of IPC and Sections 21, 23 r/w 4(1) and 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969. In the course of the arguments, the learned Special Public Prosecutor has referred to the relevant documents which prima facie disclose the involvement of the petitioners in the alleged offences. Under the said circumstances, the criminal action having been rightly initiated against the petitioners, I do not find any justifiable ground to interfere in the impugned 30 proceedings. Accordingly, rejecting the contentions urged by the learned counsel for the petitioners, Criminal Petition Nos.4420/2017, 4421/2017, 4422/2017, 4423/2017, 4425/2017, 4426/2017, 4427/2017, 4428/2017, 4429/2017, 4430/2017 and 8498/2015 are dismissed.
Criminal Petition No.4431/2017 is partly allowed. The cognizance taken by the learned Special Judge and the summons issued to the petitioners is set aside only insofar as the offences under the provisions of the MMDR Act are concerned. It is made clear that the trial against the petitioners (Accused Nos.8 and 7) in respect of the offences under IPC and the Karnataka Forest Rules, shall continue in accordance with law.
Liberty is reserved to the respondent to make necessary complaint in terms of Section 22 of the MMDR Act, if desired, in respect of the alleged offences punishable under the provisions of the MMDR Act.
In view of dismissal of main petitions, all pending I.As, if any, are also dismissed.
Sd/-
JUDGE KGR/nd*