Karnataka High Court
Shyamraj Singh vs State Of Karnataka By on 17 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.3774 OF 2017 c/w
Crl. P. Nos.3775/2017, 3776/2017, 3832/2017,
3833/2017, 3834/2017, 3835/2017, 3836/2017,
3837/2017, 3689/2017
In Crl.P.No.3774/2017:
BETWEEN:
Shyamraj Singh,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
2
Sri B.S. Prasad, Spl. PP)
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.471/2016, PENDING ON
THE FILE OF LEARNED XXIII ADDL. CITY CIVIL AND SESSIONS
JUDGE AND SPL. JUDGE FOR PREVENTION OF CORRUPTION
ACT, (CCH-24) BENGALURU, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 379, 409, 420, 471, 468 READ WITH 120(B)
OF IPC AND SECTION 21 AND 23 READ WITH S. 4 AND 4(1)(A)
OF MMDR ACT AS ABUSE OF PROCESS OF LAW, ETC.
In Crl.P.No.3775/2017:
BETWEEN:
Shyamraj Singh,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
3
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.470/2016 (CRIME
NO.4/15), PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION
OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 379, 409, 420, 465,
468 READ WITH 120(B) OF IPC AND SECTION 21 READ WITH
S. 4(1) AND 4(1)(A) OF MMDR ACT AS ABUSE OF PROCESS OF
LAW, ETC.
In Crl.P.No.3776/2017:
BETWEEN:
Jairaj Singh,
S/o late B.S. Balaji Singh,
Aged about 45 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
4
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.470/2016, PENDING ON
THE FILE OF LEARNED XXIII ADDL. CITY CIVIL AND SESSIONS
JUDGE AND SPL. JUDGE FOR PREVENTION OF CORRUPTION
ACT, (CCH-24), BENGALURU, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 379, 409, 420, 471 READ WITH 120(B) OF
IPC AND SECTION 21 READ WITH S. 4(1) AND 4(1)(A) OF
MMDR ACT AND RULE 165 READ WITH RULE 144 OF
KARNATAKA FOREST RULES AS ABUSE OF PROCESS OF LAW,
ETC.
In Crl.P.No.3832/2017:
BETWEEN:
Shyamraj Singh,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
5
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.468/2016 (CRIME
NO.8/15), PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION
OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 420, 465, 468 READ
WITH 120(B) OF IPC AND SECTION 21 READ WITH S. 4(1) AND
4(1)(A) OF MMDR ACT AND RULE 165 READ WITH RULE 144 OF
THE KARNATAKA FOREST RULES, AS ABUSE OF PROCESS OF
LAW, ETC.
In Crl.P.No.3833/2017:
BETWEEN:
Jairaj Singh S.B.,
S/o late B.S. Balaji Singh,
Aged about 45 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
6
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.468/2016 (CRIME
NO.8/15), PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION
OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 420, 465, 468 READ
WITH 120(B) OF IPC AND SECTION 21 READ WITH S. 4(1) AND
4(1)(A) OF MMDR ACT AND RULE 165 READ WITH RULE 144 OF
THE KARNATAKA FOREST RULES, AS ABUSE OF PROCESS OF
LAW, ETC.
In Crl.P.No.3834/2017:
BETWEEN:
Shyamraj Singh S.B.,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
7
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.534/2016 (CRIME
NO.5/15), PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION
OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 379, 420, 409, 471
READ WITH 120(B) OF IPC AND SECTION 21 READ WITH S.
4(1) AND 4(1)(A) OF MMDR ACT AND RULE 165 READ WITH
RULE 144 OF THE KARNATAKA FOREST RULES, AS ABUSE OF
PROCESS OF LAW, ETC.
In Crl.P.No.3835/2017:
BETWEEN:
Jairaj Singh S.B.,
S/o late B.S. Balaji Singh,
Aged about 45 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
8
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.534/2016 (CRIME
NO.5/15), PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION
OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 379, 420, 409, 471
READ WITH 120(B) OF IPC AND SECTION 21 READ WITH S.
4(1) AND 4(1)(A) OF MMDR ACT AND RULE 165 READ WITH
RULE 144 OF THE KARNATAKA FOREST RULES, AS ABUSE OF
PROCESS OF LAW, ETC.
In Crl.P.No.3836/2017:
BETWEEN:
Shyamraj Singh S.B.,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
9
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.601/2015 (CRIME
NO.12/15), PENDING ON THE FILE OF LEARNED XXIII ADDL.
CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR
PREVENTION OF CORRUPTION ACT, (CCH-24), BENGALURU, FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 379, 420, 409
READ WITH 120(B) OF IPC AND SECTION 21 READ WITH S.
4(1) AND 4(1)(A) OF MMDR ACT AND RULE 165 READ WITH
RULE 144 OF THE KARNATAKA FOREST RULES, AS ABUSE OF
PROCESS OF LAW, ETC.
In Crl.P.No.3837/2017:
Jayaraj Singh S.B.,
S/o late B.S. Balaji Singh,
Aged about 45 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONER
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
10
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL.C.C NO.601/2015 (CRIME NO.12/15),
PENDING ON THE FILE OF LEARNED XXIII ADDL. CITY CIVIL
AND SESSIONS JUDGE AND SPL. JUDGE FOR PREVENTION OF
CORRUPTION ACT, (CCH-24), BENGALURU, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 379, 420, 409 READ WITH
120(B) OF IPC AND SECTION 21 READ WITH S. 4(1) AND
4(1)(A) OF MMDR ACT AND RULE 165 READ WITH RULE 144 OF
THE KARNATAKA FOREST RULES, AS ABUSE OF PROCESS OF
LAW, ETC.
In Crl.P.No.3689/2017:
BETWEEN:
1. Shyamraj Singh,
S/o late B.S. Balaji Singh,
Aged about 42 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
2. Jairaj Singh,
S/o late B.S. Balaji Singh,
Aged about 45 years,
Residing at Flat No.8,
'Sri Balaji Sadana'
Basaveshwara Extension,
College Road,
Hosapete - 583 201.
Bellary District.
:PETITIONERS
(By Sri. Hashmath Pasha, Senior Advocate)
11
AND:
State of Karnataka by
Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
:RESPONDENT
(By Sri Venkatesh S. Arabatti Spl. PP and
Sri B.S. Prasad, Spl. PP)
THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH
THE PROCEEDINGS IN SPL. C.C. NO.53/2016, PENDING ON THE
FILE OF LEARNED XXIII ADDL. CITY CIVIL AND SESSIONS
JUDGE AND SPL. JUDGE FOR PREVENTION OF CORRUPTION
ACT, (CCH-24), BENGALURU, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 379, 420, 409 READ WITH 120(B) OF IPC
AND SECTION 21 AND 23 READ WITH S. 4(1) AND 4(1)(A) OF
MMDR ACT AND RULE 165 READ WITH RULE 144 OF THE
KARNATAKA FOREST RULES, AS ABUSE OF PROCESS OF LAW,
ETC.
THESE CRIMINAL PETITIONS HAVING BEEN RESERVED
FOR ORDERS ON 12/11/2020, COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
12
COMMON ORDER
Petitioners in this batch of petitions have challenged the order of taking cognizance and issuance of summons by the Special Judge and have sought to quash the proceedings initiated against them for the alleged offences punishable under Sections 379, 409, 420, 465, 468, 471, 120(B) of IPC and Sections 21, 23 r/w 4(1) and 4(1)(A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act') and Rule 165 r/w 144 of Karnataka Forest Rules, 1969 raising common contentions. Hence all these petitions are disposed of by this common order.
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 detailed in the table here below:- 13
Rank Criminal of the Gist of the allegations Petition No. Crime No. Spl.CC.No. parties 3774/2017 A9 1/2014 471/2016 Petitioner being the partner of M/s.
S.V.K. Minerals entered into criminal conspiracy with another partner of the firm namely A10 and the partners of M/s. Eagle Traders and Logistics namely A11 and A12 for illegal sale of iron ore stacked in plot of M/s. S.V.K. Minerals and In furtherance thereof sold 3,770 MT to Akshatha Minerals through M/s. Eagle Traders and Logistics by creating documents purported to have been issued by the Mines and Minerals Department of Geology, Andhra Pradesh without payment of Royalty and other charges and thereby caused loss of Rs.1,04,09,864/- and committed offences punishable under Sections 379, 420, 409, 471, 120B of IPC and under Section 21 read with 4(1), 4(1)(A) of MMDR Act.
3775/2017 A2 4/2015 470/2016 Petitioners being the partners of M/s. S.V.K Minerals sold 1893 MT 3776/2017 A4 4/2015 470/2016 of iron ore to M/s. Kaveri C Coffee Traders though M/s. Akshatha Minerals without valid permit and facilitated transportation of the said iron ore to Belekeri Port for the purpose of export and thereby caused loss of Rs.28,12,394/- to 14 the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Section 4(1), 4(1A) of MMDR Act and Sections 165 r/w 144 of the Karnataka Forest Rules, 1969.
3832/2017 A2 8/2015 468/2016 Petitioners being the partners of M/s. S.V.K Minerals entered into 3833/2017 A4 8/2015 468/2016 criminal conspiracy with A1, A3 and A4 and A5 and A6 with an intent to export illegally extracted iron ore in furtherance thereof illegally got extracted iron ore from forest land of A3 and A5, transported the same to the stock yard of CW48 and sold 9,500 MT of iron ore to A1 for making personal profit and thereby caused loss of Rs.72,41,673/- and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Section 4(1), 4(1A) of MMDR Act and Section 165 r/w 144 of the Karnataka Forest Rules, 1969.
153834/2017 A2 5/2015 534/2016 Petitioners entered into criminal conspiracy with one Jayaraj 3835/2017 A4 5/2015 534/2016 Singh, Nandakumar Singh of M/s. S.B. Minerals and Mohammed Asgar of M/s.
Arshad Exports and Basavaraja of M/s. Manjunatheshwara Minerals and Dileep Singh, Deepak Singh and Praveen Singh of M/s. S.K.M.P.L and Smt. Rani Samyuktha of Krishna Minerals and with K.V.Nagaraj, Mahesh Kumar @ Karadhapudi Mahesh of M/s. Shafia Minerals and by fabricating false documents, transported 16,976 MT of iron ore to Belikeri port without obtaining Minerals dispatch permit and without payment of Royalty and other charges and thereby caused a loss of Rs.2,04,85,109/- and committed offences punishable under Sections 409, 420, 471 read with 120B of IPC and under Section 21 read with Section 4(1), 4(1A) of MMDR Act and Sections 165 r/w 144 of the Karnataka Forest Rules, 1969.
163836/2017 A4 12/2015 601/2015 Petitioners (A4 and A5) being the partners of M/s. SVK 3837/2017 A5 12/2015 601/2015 Minerals entered into criminal conspiracy with A1 to A3 and A6 to A8 with an intent to export illegally extracted iron ore and in furtherance thereof got extracted iron ore from the forest area through A3 and A5 and transported the same to the stock yard of CW29 without valid permit and without payment of royalty and then thereafter sold the said 13,244.84 MT to A1 for personal gain and there by caused loss of Rs.2,41,46,592/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Section 4(1), 4(1A) of MMDR Act and Section 165 r/w 144 of the Karnataka Forest Rules, 1969.
17Petitioners being the Partners of M/s. SVK Minerals, between 3689/2017 A5&A7 24/2014 53/2014 1.1.2009 and 31.5.2010 sold 23140 Metric Tons of Iron Ore to M/s. Yezdani Mineral Pvt.
Ltd. and 10764 Metric Tons of Iron Ore to M/s. Eagle Traders and 1801 Metric Tons of Iron Ore to M/s. Akshatha Minerals and extracted total quantity of 27706 Metric Tons of Iron Ore without obtaining valid permit and without payment of the royalty and other charges and illegally transported the said Iron Ore to Belekeri Port for the purpose of export and thereby caused a loss of Rs.3,45,63,390/- to the State Exchequer and thereby committed offences u/ss. 409, 420, 120 (B) and Sectoions.21 r/w. 4(1),4(1)(A) of MMDR Act,1957 and Rule 165 r/w 144 of Karnataka Forest Rules,1969.
18
3. The contentions of the learned Senior Counsel for the petitioners are as 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 accused 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 alleged transactions and therefore, the learned Magistrate has committed an error in issuing summons to the petitioners.
iii) Impugned orders passed by the learned Special Judge do not reflect either application of mind or consideration of the material on record by the Special Judge and therefore, solely on this ground, the impugned orders of cognizance and consequent 19 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 offences 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) Offences 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 offences under the Indian Penal Code and the Forest Act are also bad in law. Thus, the learned Senior 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. 20
In addition to the above common grounds, individual contentions are urged in the following petitions:
Crl.P. 3774/2017:
4. Neither the petitioner nor the firm was involved in any sale or transportation of iron ore. As per the Deed of Partnership dated 20.04.2005, (clause 10), Sri. Nandakumar Singh - accused No.10 was the Managing Partner in charge of day-to-day affairs of M/s. SVK Minerals and was entitled to execute documents, deeds etc. Petitioner was only a nominal partner and therefore he is not liable to answer the charges leveled against the firm.
Crl.P. 3775/2017:
5. As per the Deed of Partnership dated 20.04.2005, accused No.3 Sri Nandakumar Singh was the Managing Partner and therefore, the petitioner is not liable to be prosecuted for the alleged offences and further the allegations made in the charge- sheet would indicate that the alleged transaction was carried on 21 by the firm and therefore, without making the firm as accused, the prosecution of the petitioner is legally untenable. Crl.P.3776/2017:
6. Petitioner / accused No.4 is a mere nominal partner of M/s. S.B. Minerals, holder of ML 2550. The said firm consisted of six partners. In the absence of any allegation that the petitioner was involved in the day-to-day affairs of the said firm, the prosecution of the petitioner is illegal. That apart, the firm having not been made an accused, the prosecution of the petitioner merely on the ground that petitioner was a partner of the said firm is also legally untenable as the firm was also not involved in the alleged transaction.
Crl.P.3832/2017:
7. As per the partnership deed governing the partners, the petitioner / accused No.2 was only a nominal partner. The day-to-day affairs of the firm were looked after by accused No.3. The firm is not made an accused and therefore, the prosecution of the petitioner is legally untenable.
22Crl.P.3833/2017 AND Crl.P.3837/2017:
8. Petitioner / accused No.4 and accused No.5 respectively was a mere nominal partner of M/s. S.B. Minerals, holder of ML 2550. The said firm consisted of six partners. In the absence of any allegation that the petitioner was involved in the day-to-day affairs of the said firm, the prosecution of the petitioner is illegal. That apart, the firm itself having not been made an accused, the prosecution of the petitioner merely on the ground that petitioner was a partner of the said firm is also legally untenable.
Crl.P.3834/2017:
9. The petitioner / accused No.2 has not carried on any transaction. As per the charge sheet, alleged transaction was carried on by the firm namely M/s.SVK Minerals and therefore prosecution of the petitioner without making the said firm an accused is legally untenable. Further placing reliance on the Deed of Partnership dated 20.04.2005, (clause 10), the learned Senior Counsel pointed out that as per the said clause, Sri. Nandakumar Singh - accused No.3 was the Managing 23 Partner who was in charge of the day-to-day affairs and was entitled to execute documents, deeds etc. By virtue of said partnership deed, the petitioner being only a nominal partner is not liable to answer the charges leveled against the firm. Crl.P.3835/2017:
10. Likewise petitioner / accused No.4 was a mere nominal partner of M/s. S.B. Minerals, holder of ML 2550. The said firm consisted of six partners. In the absence of any allegation that the petitioner was involved in the day-to-day affairs of the said firm, the prosecution of the petitioner is illegal. That apart, the firm itself having not been made an accused, the prosecution of the petitioner merely on the ground that petitioner is a partner of the said firm is also legally untenable. Learned counsel further submits that the allegation of illegal sale made against the petitioner is denied. Crl.P.3836/2017:
11. The Managing Partner of the firm M/s. SVK Minerals was accused No.3 Nandakumar. As per the terms of the 24 partnership deed dated 20.04.2005, the petitioner was only nominal partner and is not liable to face prosecution as the firm is not made as party to the proceedings. Further he would submit that the firm has not made any sales as alleged in the charge-sheet.
Crl.P.3689/17:
12. The petitioner No.1 / accused No.5 was only a nominal partner of the firm M/s. SVK Minerals. The firm has not effected sale of 23140 MT iron ore as alleged in the charge- sheet. The Managing Partner of the firm who is in charge of the day-to-day affairs of the firm was accused No.6 and moreover the firm itself having not been made a party to the proceedings, petitioner is not liable to answer the claim made in the charge- sheet.
Petitioner No.2 / accused No.7 was a mere nominal partner of M/s. S.B. Minerals, holder of ML 2550. The said firm consisted of six partners. In the absence of any allegation that the petitioner was involved in the day-to-day affairs of the said firm, the prosecution of the petitioner is illegal. That apart, the firm 25 itself having not been made an accused, the prosecution of the petitioner merely on the ground that he was a partner of the said firm is also legally untenable.
13. Refuting the above arguments, the learned Special Public Prosecutor appearing for respondent would submit that insofar as the jurisdiction of the SIT to register the FIR and to investigate into the alleged offences is concerned, this Court in W.P.Nos.14220-14224/2018 (DD on 01.10.2018) between R.P.TRIVIKRAM AND OTHERS VS. STATE OF KARNATAKA reported in 2019(1) KLJ 149 has held that the SIT has jurisdiction to register the FIR and to investigate into the alleged offences and therefore, the said contention does not survive for consideration.
14. Regarding the validity of the cognizance order and the summoning order made by the Special Judge, the learned Special Public Prosecutor would submit that in compliance of requirement of Section 22 of the MMDR Act, requisite complaint has been filed by the Authorized Officer before the Special Judge 26 in all of the above cases and as such, there is substantial compliance of the requirements of Section 22 of the MMDR Act.
15. Regarding prosecution of the petitioners in their capacity as partner/s of the involved firms, the learned Special Public Prosecutor would submit that the allegations in the charge sheet are directed against the petitioners in their capacity as the partner/s of the involved firms as well as in their personal capacity. Further referring to Section 23 of the MMDR Act, the learned Special Public Prosecutor would submit that in view of the proviso to Section 23 of the MMDR Act, it is for the petitioners to establish during trial that the alleged offences were committed by the company or the firm without their knowledge or that they exercised all due diligence to prevent the commission of such offences and therefore, the said contention does not furnish a ground to the petitioners to seek quashment of the proceedings.
16. Regarding the merits of the case, the learned Special Public Prosecutor would submit that the material collected by the 27 Investigating Agency and the statement of witnesses would clearly disclose the transactions alleged against the petitioners and as such, there being prima-facie material to proceed against the petitioners, none of the contentions urged by the petitioners merit acceptance.
17. Considered the submissions and perused the record.
18. Regarding the jurisdiction and the authority of SIT to investigate into the alleged offences and to submit the charge sheet is concerned, the said issue is already decided by me by referring to the directions issued by the Hon'ble Supreme Court in its Order dated 16.09.2013 in W.P.(Civil) No.562/2009 and the CEC report dated 05.09.2012 as well as the Government Order dated 22.11.2013 in W.P.Nos.14220-14224/2018 (DD 01.10.2018) between R.P.TRIVIKRAM AND OTHERS VS. STATE OF KARNATAKA reported in 2019(1) KLJ 149. In view of this order, the first contention urged by the learned Senior Counsel is liable to be rejected and is accordingly rejected. 28
19. The submission of the learned Senior counsel that by order dated 16.09.2013, the State Government was directed to take action only in relation to the iron ore extracted from the forest area, is misconceived. A reading of the orders passed by the Hon'ble Supreme Court in W.P(Civil).No.562/2009 would clearly indicate that in its first order dated 07.09.2012, the Hon'ble Supreme Court issued directions to the CBI. The said direction reads as under:
"We accept the report and in light of the recommendations made in it, we direct the CBI to immediately institute FIR(s) and to investigate the case(s) relating to the illegal extraction of about 50.79 lakh MT of iron ore from the forest areas of Karnataka during the period January 1, 2009 to May 31, 2010, the illegal transport of the aforesaid quantity of iron ore from the area(s) of extraction to Belekeri Port and from there its illegal export to other countries."
The directions issued to the State Government finds place in the order dated 16.09.2013, which reads as under: 29
"(d) We direct the State of Karnataka to take further necessary action under the relevant laws as recommended by the CEC in its Report dated 5th September, 2012 with regard to those exporters who have exported less than 50,000 MT and report compliance within a period of four weeks from the date of receipt of communication of this order."
There is nothing in this order to indicate that the State Government was directed to take action to investigate only with regard to the export of the iron ore from the forest areas as contended by the learned Senior Counsel. Even otherwise, this issue having already considered by the Hon'ble Supreme Court in THE STATE OF KARNATAKA Vs. LINGANAGOUDA IN SLP Nos.6244-6251/2017 (D.D.12.10.2017), no further order is necessary on the objection raised by the learned Senior Counsel.
20. 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 petitioners indicate that on perusal of the FIR, Charge Sheet, 30 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.
21. However, the difficulty arises in respect of the offences under the provisions of MMDR Act. 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."
22. Learned Senior Counsel for the petitioners/accused has placed heavy reliance on the decision of the Hon'ble Apex 31 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) 32
23. 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 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 offences based on the said complaint as mandated in Section 22 of the MMDR Act?
24. Though it is vehemently argued by the learned Senior counsel for the petitioners/accused that such exercise has 33 not been done by the Special Court as the impugned orders of cognizance does 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 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.
25. 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 offence 34 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."
26. 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 order that the Magistrate is satisfied that: (i) the facts alleged in the complaint 35 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."
27. 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.
28. 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) of CrPC or to postpone the process and hold an enquiry in terms of Section 202 of CrPC. In the instant cases, detailed investigation 36 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 offences 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 follows that when the police have the power to 37 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 Senior 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 38 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.
29. In the light of these principles and for the reasons discussed above, and especially keeping in mind the peculiarities of the present cases 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 petitioner. Since the petitioners were notified of the offences at 39 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.
30. As a result, I hold that the impugned orders of cognizance and the consequent orders of summons issued by the learned Special Judge do not suffer from any error or illegality vitiating the proceedings pending against the petitioners.
31. The next contention urged by learned Senior 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 partner/s of the involved firms, but also in their personal capacity. 40
32. 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 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 41 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 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."
33. 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 42 the partner/s 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 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 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.
43
34. 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, 465, 468, 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 proceedings. Accordingly, rejecting the contentions urged by the learned Senior counsel for the petitioners, Criminal Petition Nos.3774/2017, 3775/2017, 3776/2017, 3832/2017, 3833/2017, 3834/2017, 3835/2017, 3836/2017, 3837/2017 and 3689/2017 are dismissed.
In view of dismissal of main petitions, all pending I.As are also dismissed.
Sd/-
JUDGE sac/rs*