Karnataka High Court
Sri Bharat Kumar Jain vs The State on 19 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2271
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.3622/2017
C/W
CRIMINAL PETITION Nos.4622/2019, 4623/2019
IN CRL. P. NO.3622/2017
BETWEEN:
1. SRI BHARAT KUMAR JAIN,
S/O SRI BABULAL JAIN,
AGED ABOUT 41 YEARS,
M/S. JAIN METALS AND MINERALS,
RESIDING AT NO.449, 15TH WARD,
3RD CROSS, BEHIND RAJIV HOSPITAL
M.J. NAGAR,
HOSAPETE - 583 2020
BELLARY DISTRICT.
2. SRI S. TAHIR,
S/O SRI S. IQBAL,
AGED ABOUT 35 YEARS,
PROPRIETOR,
M/S NOMAN ENTERPRISES,
SHOP NO.48, 1ST FLOOR,
DARGA MASJID COMPLEX,
OPP: GOVERNMENT HOSPITAL,
HOSAPETE - 583 202,
BELLARY DISTRICT.
... PETITIONERS
(BY SRI MURTHY D. NAIK, ADVOCATE)
AND:
THE STATE,
2
REPRESENTED BY
SUPERINTENDENT OF POLICE ,
S.I.T., KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032.
... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPECIAL PP AND
SRI B.S. PRASAD, SPECIAL PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO:
I) QUASH THE CHARGE SHEET DATED 21.01.2017
BEARING NO.01/2017 AT ANNEXURE-B AGAINST THE
PETITIONER NOS.1 AND 2/ACCUSED NOS.11 AND 22 WHICH IS
NOW PENDING AS SPL.C.C. NO.120/2017 ON THE FILE OF XXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
URBAN DISTRICT, BANGALORE FILED IN CR. NO.30/2014 DATED
19.11.2014 FILED FOR THE OFFENCES P/U/S 379 AND 420 R/W
120(B) OF IPC AND SECTION 21 R/W 4(1A) OF MMDR ACT.
II) QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.
NO.120/2017 ON THE FILE OF THE XXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, BANGALORE URBAN
DISTRICT, BANGALORE VIDE ANNEXURE-C AS AGAINST THE
PETITIONERS NO.1 AND 2/ACCUSED NOS.11 AND 22 FILED FOR
THE OFFENCES P/U/S 379 AND 420 R/W 120(B) OF IPC AND
SECTION 21 R/W 4(1A) OF MMDR ACT.
IN CRL. P. NO.4622/2019
BETWEEN:
SRI J.S.MANOHAR GUPTA,
S/O LATE RAGHAVAN SETTY,
AGED ABOUT 47 YEARS,
PARTNER OF M/S. DURGAMBA TRADERS,
RESIDING AT SRI JAYARAGHAVENDRA NILAYA,
NEAR KRISHNA TEMPLE, P.D.I.T.,
ENGINEERING COLLEGE ROAD,
GOKUL NAGAR,
HOSPET - 583 225.
3
... PETITIONER
(BY SRI MURTHY D. NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
SUPERINTENDENT OF POLICE ,
S.I.T.,
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032.
... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPECIAL PP AND
SRI B.S. PRASAD, SPECIAL PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO:
I) QUASH THE CHARGE SHEET DATED 21.01.2017
BEARING NO.1/2017 AT ANNEXURE-A AGAINST
PETITIONER/ACCUSED NO.7 WHICH IS NOW PENDING AS
SPL.C.C. NO.120/2017 ON THE FILE OF 81ST ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE AT
BENGALURU CITY CCH-82 (SPECIAL COURT EXCLUSIVELY TO
DEAL WITH CRIMINAL CASE RELATED TO ELECTED MPs/MLAs IN
THE STATE OF KARNATAKA) FILED IN CR. NO.30/2014 DATED
19.11.2014 FILED FOR THE OFFENCES UNDER SECTIONS 379,
420 R/W 120B, 511 OF IPC AND SECTIONS 21 R/W 4(1A) OF
MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT.
II) QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.
NO.120/2017 ON THE FILE OF THE 81ST ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU CITY
CCH-82 (SPECIAL COURT EXCLUSIVELY TO DEAL WITH
CRIMINAL CASE RELATED TO ELECTED MPs/MLAs IN THE STATE
OF KARNATAKA) VIDE ANNEXURE-B AS AGAINST
PETITIONER/ACCUSED NO.7 PENDING FOR THE OFFENCES P/U/S
379, 420 R/W 120B, 511 OF IPC AND SECTIONS 21 R/W 4(1A)
4
OF MINES AND MINERALS (DEVELOPMENT AND REGULATION)
ACT.
IN CRL. P. NO.4623/2019
BETWEEN:
J.S.SAHANA,
W/O SRI J.S.RAMESH GUPTA,
AGED ABOUT 35 YEARS,
PARTNER OF M/S. DURGAMBA TRADERS,
RESIDING AT SRI JAYARAGHAVENDRA NILAYA,
NEAR KRISHNA TEMPLE, P.D.I.T.,
ENGINEERING COLLEGE ROAD,
GOKUL NAGAR,
HOSPET - 583 225.
... PETITIONER
(BY SRI MURTHY D. NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
SUPERINTENDENT OF POLICE ,
S.I.T.,
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032.
... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPECIAL PP AND
SRI B.S. PRASAD, SPECIAL PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO:
I) QUASH THE CHARGE SHEET DATED 21.01.2017
BEARING NO.1/2017 AT ANNEXURE-A AGAINST
PETITIONER/ACCUSED NO.6 WHICH IS NOW PENDING AS
SPL.C.C. NO.120/2017 ON THE FILE OF THE 81ST ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE,
5
BANGALORE (CCH-82) (SPECIAL COURT EXCLUSIVELY TO DEAL
WITH CRIMINAL CASE RELATED TO ELECTED MPs/MLAs IN THE
STATE OF KARNATAKA) FILED IN CR. NO.30/2014 DATED
19.11.2014 FILED FOR THE OFFENCES UNDER SECTIONS 379,
420 R/W 120B OF IPC AND SECTIONS 21, 4(1A) OF MMDR ACT.
II) QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.
NO.120/2017 ON THE FILE OF 81ST ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BANGALORE (CCH-82)
(SPECIAL COURT EXCLUSIVELY TO DEAL WITH CRIMINAL CASE
RELATED TO ELECTED MPs/MLAs IN THE STATE OF KARNATAKA)
VIDE ANNEXURE-B AS AGAINST THE PETITIONER/ACCUSED NO.6
PENDING FOR THE OFFENCES U/S 379, 420 R/W 120B OF IPC
AND SECTIONS 21, 4(1A) OF MMDR ACT.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED ON 22.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioners in the above petitions have sought to quash the charge sheet and the entire proceedings initiated against them for the offences punishable under Sections 379, 420, 120B & 511 of IPC and Section 21 r/w Section 4(1A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short 'M.M.D.R. Act').
The details of the proceedings, rank of the petitioners and the gist of the allegations made against them are detailed in the table herebelow:-
6
Criminal Rank
Petition of the Crime Gist of the allegations
Spl.CC.No.
No. parties No.
4622/2019 A7 30/2014 120/2017 Petitioners (accused No.7 and 6) were partners of
& & M/s Shree Durgambha Traders. They entered into
4623/2019 A6 conspiracy with each other and in furtherance
thereof between 01.04.2009 and 31.07.2010
transported 9626.222 MT of stolen Iron ore to M/s JSW Steel Ltd., Toranagal. Out of the said quantity, the petitioners failed to obtain prior permit for transporting 4640.39 MT and failed to pay royalty and other taxes and thereby caused loss of Rs.62,16,877/- to the State Exchequer and committed the aforesaid offences.
Petitioner No.1 (accused No.11) was carrying on 3622/2017 A11 & 30/2014 120/2017 the affairs of M/s Jain Metals & Minerals, and even A22 though M/s Jain Metals & Minerals had not sold any Iron ore lumps to M/s JSW Steel Ltd., between 01.04.2009 and 31.01.2010, yet, accused No.11 created Fictitious bills showing as if M/s Jain Metals & Minerals had sold Iron ore lumps without valid permit and payment of royalty to an extent of 8802.23 MT to JSW Steel Ltd., and collected commission of Rs.4,61,723/- by entering into criminal conspiracy with accused No.10, and made unlawful gain to himself and caused loss to an extent of Rs.9,24,76,206/- to the State Exchequer and thereby by committed the aforesaid offences.
Petitioner No.2 (Accused No.22) being the proprietor of M/s Noman Enterprises along with accused No.23 and accused No.24 viz., K Manjunath and K Yerriswamy respectively sold iron ore to the tune of 3417.67 MT to M/s Suhan Minerals and Metals without having any requisite permit and caused loss to an extent of Rs.18,60,562/- to the State Exchequer and thereby committed the aforesaid offences.
2. The learned counsel for petitioners has raised the following contentions:
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(i) The Firm or the Company of the petitioners are not made an accused and therefore, prosecution of petitioners without making the company or the firm as an accused is legally untenable.
(ii) There is no concept of vicarious liability in criminal law unless the statute specifically provides for.
When Company is the offender, vicarious liability of the Directors cannot be imputed automatically in the absence of any statutory provisions to this effect. In support of this submission, the learned counsel for petitioners has relied on the decisions of the Hon'ble Supreme Court in the case of R. KALYANI Vs. JANAK C. MEHTA & OTHERS (2009) 1 SCC 516; K.SITARAM & ANOTHER Vs. CFL CAPITAL FINANCIAL SERVICE LTD. & ANOTHER (2017) 5 SCC 725; SHARAD KUMAR SANGHI Vs. SANGITA RANE (2015) 12 SCC 781; SRI. RAJESH ADANI & ANOTHER Vs. ASSISTANT LABOUR COMMISSIONER & ANOTHER, ILR 2010 Kar. 3287, ANEETA HADA Vs. GODFATHER TRAVELS & TOURS (P) LTD., (2012) 5 SCC 661, SUNIL 8 BHARTI MITTAL Vs. CBI, (2015) 4 SCC 609 and THERMAX LTD., & OTHERS VS. Q.M. JOHNI & OTHERS (2011)13 SCC 412.
(iii) The averments made in the charge sheet indicate that the petitioners were mere traders. The allegations made against them go to show that they had purchased or exported the iron ore. Petitioners are therefore not required to obtain any license or permit either from the Mines Department or from the Forest Department. As per Section 9 of the M.M.D.R. Act, liability to pay royalty is on the holder of the mining lease. Referring to Sub- Section (2) of Section 9 of the M.M.D.R. Act, the learned counsel for the petitioners pointed out that as per the said provisions:
"(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any 1 [mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-
lessee] from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral."
9On this point, learned counsel has relied on the following decisions:
1) (2014) 6 SCC 590, GOA FOUNDATION VS. UNION OF INDIA AND OTHERS and
2) AIR 2008 All. 75, VIRENDRA GIRI vs. STATE OF UP & Others.
(iv) Further, it is contended that the order taking cognizance of the alleged offences is defective. It does not disclose application of mind by the learned Special Judge.
It is a bald order, which does not specify the offences for which the alleged cognizance has been taken. On this point, learned counsel has relied on the law laid down by the Hon'ble Supreme Court in SUNIL BHARTI MITTAL Vs. CBI, (2015) 4 SCC 609; the Constitution Bench decision in SARAH MATHEW Vs. INSTITUTE OF CARDIO VASCULAR DISEASES, (2014) 2 SCC 62 and the decision in MEHMOOD UL REHMAN Vs. KHAZIR MOHAMMAD TUNDA & OTHERS, (2015) 12 SCC 420. It is contended that the order taking cognizance being illegal, the 10 subsequent proceedings initiated against the petitioners are also liable to be quashed.
(v) The charge sheet filed by the respondent does not disclose the basic ingredients constituting the offences alleged against the petitioners and in the said circumstances, proceedings initiated against the petitioners being illegal and an abuse of process of Court, the proceedings are liable to be quashed.
(vi) The next contention urged by the learned counsel for petitioners is that the registration of FIR for the offences under the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'M.M.D.R. Act') and the charge sheet filed for the alleged offences, is illegal in view of the bar contained under Section 22 of the M.M.D.R. Act. In support of this submission, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in STATE (NCT OF DELHI) Vs. SANJAY (2014) 9 SCC 772. 11
In Crl.P.No.4623/2019, in addition to the above grounds it is contended that the petitioner (accused No.6) was only a nominal partner and was not involved in the day-today affairs of the Firm and therefore, in the absence of any averment or allegations in the charge sheet to the effect that the alleged transactions were carried on by the petitioner (accused No.6) with her knowledge and connivance, the alleged offences cannot stand against the petitioner (accused No.6).
In support of this submission, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of SHAM SUNDER AND OTHRS Vs. SGTTE OF HARYANA, reported in (1989) 4 SCC 630. In paragraph No.10, whereof it is held thus:
"10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a 12 travesty of justice to prosecute all partners and ask them to prove under the proviso to sub- section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time incharge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. "
3. Meeting these arguments, the learned Special PP appearing for respondent would submit that petitioners in the above petitions are prosecuted in their individual capacity as well as partners of the Firm. Referring to paragraphs 40 and 41 of the Sunil Bharti Mittal's case the learned counsel would submit that alleged offences having been committed by the petitioners as partners of the relevant firm/company, petitioners are also liable to answer the said charges.
13
4. Further, the learned Spl.PP would submit that the petitioners are sought to be prosecuted for the offences under Section 4(1A) of the M.M.D.R. Act. The allegations made in the complaint squarely fall within the ambit of Section 4(1A) of the M.M.D.R. Act. There are clear allegations that the petitioners were involved in the purchase and exportation of the iron ore, as such, there is no illegality in the proceedings initiated against the petitioners.
5. Regarding defect in the cognizance order as highlighted by the learned counsel for petitioners is concerned, the learned Special PP would submit that the order passed by the learned Special Judge taking cognizance of the alleged offences meets the legal requirements of the law laid down by the Hon'ble Apex Court as well as this Court in umpteen number of cases. There is a conceptual difference between the cognizance taken in the case arising out of a private complaint under Section 200 of Cr.P.C. and cognizance taken on the police 14 report filed under Section 173 of Cr.P.C. In the instant case, the learned Special Judge having taken cognizance on the basis of the police report/final report as well as in terms of the written complaint filed by the authorized officer in terms of Section 22 of the M.M.D.R. Act, no fault could be found with the order taking cognizance by the learned Special Judge. For the same reason, the learned Special PP would submit that the decisions relied on by the learned counsel for petitioners on this aspect, are not applicable to the facts of the case.
6. Refuting the contention of the learned counsel for the petitioner in Crl.P.No.4623/2019 that the petitioner therein was only a nominal partner, the learned Spl. P.P. pointed out to column No.5 of the Registered Partition Deed entered into between Accused No.6 and 7, which is part of the charge sheet (document No.15, Vol.35, page No.9187 to 9208) which reads thus:
"Both partners have agreed to keep themselves actively engaged and conduct the affairs of the business of the partnership Firm 15 as working partners. It is hereby agreed that any consideration of working in the partnership Firm, they shall be entitled to remuneration."
7. Lastly, with regard to the facts constituting the ingredients of the offences alleged against the petitioners is concerned, the learned Spl. P.P. submitted that the allegations made in the complaint, charge sheet as well as the documents filed in support thereof clearly disclose the ingredients of the offences alleged against the petitioners and therefore, there is no illegality whatsoever in the proceedings initiated against the petitioners and thus, sought for dismissal of the petitions.
8. Considered the submissions and perused the records.
9. Coming to the objection relating to the validity of the cognizance taken by the learned Special Judge and the consequent orders of summons issued to the petitioners is concerned, a perusal of the order sheets produced by the 16 petitioners indicate that on perusal of the FIR, Charge Sheet, Seizure mahazar and documents collected by the Investigating Officer, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioners. This order clearly reflects application of mind and consideration of the material leading to issuance of summons. The offences in respect of which summons are issued are also detailed in the order, as such, no fault could be found with the impugned orders.
10. 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
11. 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 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)
12. What emerges from the above decision is that based on the final report filed under Section 173 of the 18 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 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 cognizance of the offence based on the said complaint as mandated in Section 22 of the MMDR Act?
13. 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 orders 19 of cognizance do not reflect that the learned Special Judge has looked into the averments made in the complaints 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 reports filed by the SIT are one and the same. Under the said circumstances, if the learned Special Judge has looked into the allegations made in the final reports 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.
14. In drawing the above conclusion, I am fortified by the observations of the Hon'ble Supreme Court in the case of 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 20 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."
15. 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 CrPC, there must be sufficient indication in the 21 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."
16. 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 sheets which contain identical allegations as found in the complaints filed by the authorized officer under Section 22 of MMDR 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.
17. Viewed from another angle, on filing a complaint either under Section 200 CrPC or under Section 22 of MMDR 22 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) 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 23 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 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 24 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 issuance of summons to the accused subject to the compliance of the requirements of Section 22 of the Act.
18. 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 25 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 of the Apex Court in WILLIE (WILLIAM) SLANEY vs. STATE OF MADHYA PRADESH, AIR 1956 SC 116.
19. 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.
26
20. The contention urged by learned counsel for the petitioners that the allegations leveled in the charge sheet are directed only against the Firm and therefore the prosecution of the petitioners is not tenable in the eye of law, is also liable to be dismissed. A reading of the charge sheets and the allegations made in the complaints clearly disclose that the petitioners are sought to be prosecuted not only as the partners of the involved Firms, but also in their personal capacity.
21. 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 sheets 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 who would act on behalf of the Company. Only then an individual who has 27 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 28 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."
22. In the instant cases, the allegations are directed only against the petitioners. 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 are partners. When the notion of the Company or its corporate identity is used to circumvent law, to defeat public policy, perpetuate fraud or illegality and used as a cover or façade to justify wrong, defend crime, to lend a name to a private dealing, law will not regard the Company as a corporate entity and afford the protection 29 which is otherwise entitled under law. When camouflaged transactions are carried on behind the legal façade, Court may lift this veil and look behind the artificial personality of the Company and identify the real personalities or natural persons operating behind the veil. The facts and circumstances disclosed in the material collected by Investigating Officer undoubtedly point out that the petitioners ingeniously have been operating behind the cover of Firm or Company by entering into conspiracy with other accused with an intent to make unlawful gain making out the ingredients of offence under sections 420 and 120B of IPC. 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.
23. Insofar as the contention urged by learned counsel for petitioners that the petitioners were only traders and that they were not involved in the purchase or sale of the iron ore and therefore they were not required to obtain 30 prior permit or to pay royalty to the concerned Department is concerned, suffice it to note that the allegations made against the petitioners squarely attract Section 4(1A) of the M.M.D.R. Act. The section reads as under:
"4(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the Rules made thereunder."
As there are clear allegations that the petitioners were instrumental in purchase/storage/transportation of the iron ore, in my view, even the said contention does not merit acceptance.
24. Insofar as the contention of the learned counsel for petitioner in Crl.P.No.4623/2019 that she was only a nominal partner is concerned, as rightly pointed out by learned Special Public Prosecutor, the recitals of the partnership deed governing the petitioners clearly indicate that both the petitioners had agreed to keep themselves 31 actively engaged in conducting the affairs of the business of the Firm as working partners. In view of this documentary evidence, even this contention is liable to be rejected.
25. The allegations made in the respective complaints which are duly supported by the materials collected by SIT during investigation, undoubtedly make out the ingredients of the offences under Sections 379, 420, 120(B) and 511 of IPC and Section 21 r/w Section 4(1A) of MMDR Act, 1957. 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 proceedings. Accordingly, rejecting the contentions urged by the learned counsel for the petitioners, Criminal Petition No.3622/2017, Criminal Petition No.4622/2019 and Criminal Petition No.4623/2019 are dismissed.
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In view of dismissal of main petitions, all pending I.As are also dismissed.
At this juncture the learned counsel for the petitioners seeks leave of the court to reserve the right of the petitioners to urge appropriate contentions before the trial court at the stage of hearing before charge.
Such a right is available to the petitioners under law and the same is not taken away by this order. The Trial Court shall hear the petitioners and consider the grounds raised at the stage of hearing before charge and shall proceed in the matter as per law.
Sd/-
JUDGE Psg.
Bss.