Karnataka High Court
Sri. K V N Govindraju vs Central Bureau Of Investigation on 16 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.155 OF 2018
BETWEEN:
SRI. K V N GOVINDRAJU
AGED ABOUT 41 YEARS
S/O K. GOPAL SETTY
RESIDING AT NO 101
"R K GARDEN", NEW BEL ROAD
BANGALORE - 560054
...PETITIONER
(BY SRI: K SUMAN, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH
GANGANAGAR
BELLARY ROAD
BANGALORE
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 01.
...RESPONDENT
(BY SRI: P PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO A. QUASH THE ORDER DATED 10.11.2016 (I.E.
2
ANNEXURE-A) PASSED IN SPL.C.C.NO.38/2014 ON THE FILE OF
THE XXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR CBI CASES, BANGALORE (CCH-34) PASSED
IN I.A.NO.III/2015 FILED BY THE PETITIONER. B.FURTHER BE
PLEASED TO DISCHARGE THE PETITIONER-ACCUSED NO.4
FROM THE SPL.C.C.NO.38/2014 ON THE FILE OF THE XXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR CBI CASES, BANGALORE (CCH-34).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/accused No.4 Sri. K.V.N. Govindraj is before this Court seeking to quash the order dated 10.11.2016 (Annexure-A) passed in Spl.C.C.No.38/2014 on the file of XXXII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru and to discharge him of the alleged offences punishable under section 120(B) r/w sections 409 and 420 of IPC.
2. The allegations against the petitioner is that he had issued a provisional commercial invoice for sale and export of 42207 MTs of iron fines to Elite Brillant Ltd., Hongkong by Vessel MV. Mary F. 3
3. Learned counsel for the petitioner at the outset submitted that the petitioner has been implicated in the alleged offences without any basis and without any prima-facie material to show his involvement in the alleged transaction or in the conspiracy alleged by the prosecution. Learned counsel would submit that the name of the petitioner did not figure in the earliest FIR lodged in FOC 17/2009-10. His name did not even find place in the FIRs registered by CBI. The report submitted by the Central Empowered Committee(CEC) based on which CBI has instituted the instant FIR also did not refer to the petitioner. In the said circumstances, the impugned order passed by the learned Special Judge directing framing of charge against the petitioner for the alleged offences under sections 120(B), 409 and 420 of IPC is patently illegal and amounts to abuse of process of Court.
4. Further, the learned counsel would submit that as on the date of registration of FIR in RC No.17(A)/2012, already an FIR was registered for the very same offence before the Special Judge, Ankola in Cr.No.189/2010. It is settled law that second 4 FIR is not permissible on the same set of facts and for the same offence and therefore, the very initiation of criminal action against the petitioner being illegal and without jurisdiction is liable to be set-aside and for the same reason, it has to be held that the learned Special Judge has no jurisdiction to take cognizance of the alleged offences insofar as petitioner is concerned. In support of this submission, learned counsel has placed reliance on the decision in T.T. Antony v. State of Kerala and Ors., (2001) 6 SCC 181.
5. Assailing the order of taking cognizance, learned counsel pointed out that the said order is bereft of application of mind. Even though no prima-facie material was available against the petitioner, the learned Special Judge has proceeded to take cognizance against the petitioner mechanically without considering the material on record. Except the order of the Hon'ble Supreme Court in W.P.(Civil) No.562/2009 dated 07.09.2012 , no independent material was available on record to show the involvement of the petitioner in the alleged offences. Even with regard to the order passed by the Hon'ble Supreme 5 Court is concerned, the petitioner herein was not a party to the said order and there was no direction by the Hon'ble Supreme Court to register the second FIR when the earlier FIR in respect of very same offence was pending before the jurisdictional court. The trial Judge failed to consider all these contentions urged by the petitioner in the application submitted by him seeking his discharge under 239 of Cr.P.C. and contending that the learned Special Judge has not appreciated the contention of the petitioner in proper perspective, learned counsel has sought indulgence of this court to interfere in the impugned order and to discharge the petitioner.
6. Learned counsel further pointed out that no material is available on record to show that the petitioner was a party to the alleged conspiracy and the invoice relied on by the prosecution has nothing to do with the alleged offence propped up by the prosecution.
7. Learned Special Public Prosecutor however argued in support of the impugned order and prayed for dismissal of the petition.
6
8. Considered the submissions and perused the records.
9. Even though, the petitioner has contended that he has been prosecuted for the alleged offences without there being any prima-facie material in proof of his involvement in the alleged offences, yet the learned Special Judge in the impugned order at para 21 has observed as under:-
"Prosecution material also makes it clear that the entire sale of iron ore took place after the iron ore material was seized by the Forest Department. Both A.2-Co. who sold the iron ore & A.5-Co. who purchased the same were knowing it very well that the iron ore was seized by the Forest Dept. Further, A.5- Co. was the stevedore to store the iron ore material at Belekeri Port and as such, both of them are criminally liable for this act. In addition, A.2-Co. itself has exported 42207 MTs of iron ore in the month of April- 2010, much after the seizure of iron ore material. A.3/Sri K.V. Nagaraj & A.4/Sri. K.V.N.Govindraj are the Directors of A.2-Co- M/s. Swastik Steel (Hospet) Pvt. Ltd. Prosecution material also discloses that Sri. K.V.N. Govindraj-A.4 used to look after the business of iron ore at Belekeri Port and he issued Provisional 7 commercial Invoice Dt.21.04.2010 for USD 2526019.99 for the sale and export of 42207 WMTs of iron ore fines to M/s. Elite Brilliant Ltd., Hongkong by the Vessel-M.V.Mary-F. My attention is drawn by the learned Spl. PP to the document in D.168 which is copy of the Provisional Commercial Invoice raised by A.2-Co. on M/s. Elite Brilliant Ltd., Hongkong for export of 42207 WMTs of iron ore fines in this respect which is signed by A.4-Sri. K.V.N. Govindraj."
10. The learned magistrate has also referred to document No.168 viz., the commercial invoice raised by A-2-Co. on M/s. Elite Brilliant Ltd., Hongkong for export of 42207 WMTs of iron ore fines in this respect which is signed by A-4-Sri K.V.N. Govindraj. In the wake of this material, the contention urged by the petitioner that he is sought to be prosecuted without any material cannot be accepted.
11. Insofar as the contention urged by learned counsel for the petitioner that on account of the pendency of the FIR in Cr.No.189/2010 by Ankola police, the registration of the second FIR in R.C.No.17(A)/2012 and the consequent proceedings 8 initiated against him are vitiated also cannot be considered as a ground to quash the proceedings initiated against him. Undisputedly, the FIR in R.C.No.17(A)/2012 is registered pursuant to the direction of the Hon'ble Supreme Court in Writ Petition (Civil) No.562/2009 dated 07.09.2012. A close reading of the order of the Hon'ble Supreme Court indicates that the CBI was directed to investigate the case(s) relating to (i) illegal extraction of about 50.79 lakhs MT of Iron Ore from the forest areas of Karnataka during the period from 01.01.2009 to 31.05.2010; (ii) the illegal transport of the aforesaid quantity of iron ore from the area(s) of extraction to Belekeri Port and (iii) illegal export of aforesaid quantity of iron ore to other countries.
12. Based on this direction, R.C.No.17(A)/2012 is registered for the offences under sections 120(b) r/w 406, 409, 379, 411 IPC and section 13(2) r/w 13(1) (c) and (d) of Prevention of Corruption Act and section 24 of Karnataka Forest Act, 1963.
13. Cr.No.189/2010 is stated to have been registered by Ankola police for the alleged offence punishable under sections 9 406 and 379 IPC. Though copy of the said FIR is not produced by the petitioner to substantiate his contention that the two FIRs are registered for the same offences, yet the observations made in the impugned order goes to show that these FIRs are registered for distinct offences and only section 379 and 406 of IPC are overlapping in both FIRs. It is now well settled that where two different offences are made up of different ingredients, the bar under section 26 of the General Clauses Act or for that matter, embargo under section 21 of the Constitution of India has no application, though the offences may have same overlapping features.
14. That apart, a reading of the impugned order reveals that the petitioner claimed discharge on the ground that the material produced along with the charge sheet did not prima facie disclose his involvement and that he has been falsely implicated in the alleged offences. Petitioner did not seek for discharge on the ground of second FIR as contended before this Court. Even though the learned Counsel appearing for petitioner has vehemently argued with reference to the decided case law 10 that second FIR in respect of the same offence is not legally tenable, yet, petitioner has not produced the copy of the FIR registered in either of the cases to support his contention that in respect of the very same offence, a second FIR has been submitted. In the absence of any such material, solely based on the oral submission of learned counsel for petitioner, petitioner cannot be discharged. Mere contention urged by learned Counsel cannot be a ground to quash the proceedings or to set aside the well considered order passed by learned Special Judge. Even otherwise the law is well settled that, in order to examine the impact of one or more FIRs, court has to rationalize the facts and circumstances of each case and then apply the test of "sameness" to find out whether both FIRs relate to the same incident and to the same occurrence or the part of the same transaction or relate completely to two distinct occurrences. As held in the very same decision relied on by the learned Senior Counsel in ANJU CHAUDHARY vs. STATE OF UTTAR PRADESH & Another, (2013) 6 SCC 384, "If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of 11 the second FIR is different and they are in respect of two different incidents/ crimes, the second FIR is permissible, this is the view expressed by this Court in BABUBHAI vs. STATE OF GUJARAT, (2010) 12 SCC 254. This position of law, therefore, makes it clear that merely on the basis of the contention urged by petitioner or his counsels, the case of the prosecution cannot be thrown out nor the petitioner can be discharged of the alleged offences based on the plea set up by the petitioner. Petitioner having failed to produce two FIRs and having failed to establish that the alleged FIR in Spl.C.C. No.17(A)/2017 arise out of the same incident or in respect of the same transaction, the plea is liable to be rejected.
15. That apart, the investigation in the instant case was undertaken pursuant to the orders of the Hon'ble Supreme Court in Writ Petition (Civil) No.562/2009 dated 07.09.2012. In the said order, there was a specific direction to the CBI to immediately institute FIR(s) and to investigate the case(s) relating to (i) illegal extraction of about 50.79 lakhs MT of Iron Ore from the forest areas of Karnataka during the period from 12 01.01.2009 to 31.05.2010; (ii) the illegal transport of the aforesaid quantity of iron ore from the area(s) of extraction to Belekeri Port and (iii) from there its illegal export to other countries. Pursuant to this direction, separate FIRs were registered by the CBI. R.C.No.14(A) of 2012 relates to the illegal mining in the forest area and transportation thereof without payment of royalty and forest development tax. R.C.No.17(A) of 2012 is registered in respect of iron ore which was under seizure in FOC.17/2009-10. This order and the FIRs registered in respect of the alleged offences therefore make it evident that the scope of investigation essentially related to the period subsequent to the seizure and the consequent order passed by learned Magistrate entrusting the seized material to the custody of accused No.1 namely the Conservator of Ports. In the said circumstances, the illegality, if any, committed by the forest officials in effecting the seizure of the iron ore and even if the said seizure was effected without jurisdiction, it does not concern the CBI, since the investigation was undertaken by the CBI only in respect of the acts committed by the petitioner and other accused subsequent to the seizure and subsequent to the 13 entrustment of the seized property to the custody of accused No.1. Even otherwise, the above FIRs having been registered and investigation having been conducted pursuant to the orders of the Hon'ble Supreme Court, the contention urged by the petitioner in this regard does not furnish a ground to the petitioner to seek discharge under Section 239 Cr.P.C.
In the light of the above discussion, I do not find any justifiable reason to interfere in the impugned order. The petition being devoid of merit is liable to be dismissed and is accordingly dismissed.
SD/-
JUDGE *mn/-