Karnataka High Court
Sri. B. S. Nanda Kumar Singh vs The State on 20 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2268
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION No.18280/2016
C/w
CRIMINAL PETITION Nos.2896/2016, 9178/2016,
9278/2016, 9277/2016, 277/2017
IN W.P.No.18280/2016:
BETWEEN:
SRI. B.S. NANDA KUMAR SINGH
@ NANDA SINGH,
S/O. SRI. SUBBARAJ SINGH,
42 YEARS, PARTNER,
M/S. S.V.K. MINERALS,
NO.275, 4TH CROSS,
BASAVESHWARA EXTENSION,
HOSPETE, BELLARY DISTRICT
AND ALSO RESIDING AT
MANGALYA RESIDENCY,
NO.007, BENSON TOWN,
BENGALURU - 560 052. ...PETITIONER
(BY SRI. MURTHY D. NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTHA,
2
SPECIAL INVESTIGATION TEAM,
BELLARY MAIN ROAD, HEBBAL,
BENGALURU - 560 024. ...RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPL.PP &
SRI. B.S. PRASAD, SPL.PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS INITIATED
IN SPL.C.C.NO.601/2015 ON THE FILE OF THE XXIII ADDL. CITY
CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT, BENGALURU
CITY, FOR OFFENCES PUNISHABLE UNDER SECTIONS 379, 420,
409 R/W 120B OF IPC AND UNDER SECTION 21 READ WITH 4(1),
4(1A) OF MMDR ACT AND RULE 165 R/W 144 OF THE
KARNATAKA FOREST RULES, 1969, WHICH IS ARISING OUT OF
CR.NO.12/2015 OF SIT, LOKAYUKTA, BENGALURU AND ETC.
IN CRL.P.No.2896/2016:
BETWEEN:
SRI. B.S. NANDA KUMAR SINGH
@ NANDA SINGH,
S/O. SRI. SUBBARAJ SINGH,
42 YEARS, PARTNER,
M/S. S.V.K. MINERALS,
NO.275, 4TH CROSS,
BASAVESHWARA EXTENSION,
HOSPETE, BELLARY DISTRICT
AND ALSO RESIDING AT
MANGALYA RESIDENCY,
NO.007, BENSON TOWN,
BENGALURU - 560 052. ...PETITIONER
(BY SRI. MURTHY D. NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
3
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTHA,
SPECIAL INVESTIGATION TEAM,
BELLARY MAIN ROAD, HEBBAL,
BENGALURU - 560 024. ...RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPL.PP &
SRI. B.S. PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED IN SPL.C.C.NO.53/2016 ON THE FILE OF THE XXIII
ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT,
BENGALURU CITY, FOR OFFENCES PUNISHABLE UNDER
SECTIONS 420, 409 R/W 120B OF IPC AND UNDER SECTION 21
READ WITH 4(1), 4(1A) OF MMDR ACT AND RULE 165 R/W 144
OF THE KARNATAKA FOREST RULES, 1969, WHICH IS ARISING
OUT OF CR.NO.24/2014 OF SIT, LOKAYUKTA, BENGALURU AND
ETC.
IN CRL.P.No.9178/2016:
BETWEEN:
1. SRI. NANDAKUMAR SINGH,
S/O. SRI.SUBBARAJ SINGH,
AGED ABOUT 42 YEARS,
PARTNER,
S.V.K.MINERALS,
HOSAPETE,
R/AT NO.07, STRING BLOCK,
MANGALYA RESIDENCY,
BENSON TOWN,
BENGALURU - 560 052.
2. ALEEM S. AHAMED,
S/O. SYED RAHEEMUDDIN PASHA,
AGED ABOUT 73 YEARS,
OCC: MANAGING PARTNER,
M/S. MUNEER ENTERPRISES,
HOSPET,
4
R/AT 3RD CROSS, 16TH WARD,
BASAVESHWARA LAYOUT,
HOSPET - 583 201.
3. PRABHAKARA MANJA DEVADIGA,
S/O. MANJU DEVADIGA,
AGED ABOUT 36 YEARS,
OCC: PARTNER,
M/S. ORIENTAL LOGISTICS COMPANY,
HOSAPETE - 583 222
ADDRESS: AYYAPPANAGARA,
NEAR APMC YARD,
HUBLI ROAD,
SIRSI - 581 402.
UTTARA KANNADA DISTRICT.
4. SRI. PRAKASH GOPALKRISHNA HEGDE,
S/O. LATE GOPALKRISHNA HEGDE,
AGED ABOUT 39 YEARS,
PARTNER,
M/S. ORIENTAL LOGISTICS COMPANY,
HOSAPETE - 583 222
LINGADABAIL, YALLAPURA,
UTTARA KANNADA DISTRICT.
5. SRI. MOHAMMAD IMAM NIYAZI,
S/O. SRI. FAKRUDDIN SAB,
AGED ABOUT 42 YEARS,
PROPRIETOR,
M/S. PARVAZ MINING MINERAL INDUSTRY,
SANKALAPURA STOCKYARD,
HOSAPETE,
RESIDENT AT PARVEZ MANZIL,
NO.15/732, DEVI NAGARA,
CHITTAVADAGI,
HOSAPETE - 583 222. ... PETITIONERS
(BY SRI. MURTHY D.NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
5
SUPERINTENDENT OF POLICE, S.I.T
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032. ... RESPONDENT
(BY SRI. VENKATESH S. ARABATTI, SPL.PP &
SRI.B.S.PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS INITIATED IN
SPL.C.C.NO.471/2016 ON THE FILE OF THE XXIII ADDL. CITY
CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT, BENGALURU
CITY, FOR OFFENCES PUNISHABLE UNDER SECTIONS 379, 420,
465, 468, 471, 409 R/W 120B OF IPC AND UNDER SECTION 21
READ WITH 4(1), 4(1A) OF MMDR ACT AND RULE 165 R/W 144
OF THE KARNATAKA FOREST RULES, 1969, WHICH IS ARISING
OUT OF CR.NO.1/2014 OF SIT, LOKAYUKTA, BENGALURU AND
ETC.
IN CRL.P.No.9278/2016:
BETWEEN:
SRI. NANDAKUMAR SINGH,
S/O. SRI. SUBBARAJ SINGH,
AGED ABOUT 42 YEARS,
PARTNER,
S.V.K.MINERALS,
HOSAPETE,
R/AT NO.07, STRING BLOCK,
MANGALYA RESIDENCY,
BENSON TOWN,
BENGALURU - 560 052. ... PETITIONER
(By Sri. MURTHY D.NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
6
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032. ... RESPONDENT
(BY SRI. VENKATESH S. ARABATTI, SPL.PP &
SRI.B.S.PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED IN SPL.C.C.NO.468/2016 ON THE FILE OF THE XXIII
ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT,
BENGALURU CITY, FOR OFFENCES PUNISHABLE UNDER
SECTIONS 420, 409, 465, 468 R/W 120B OF IPC AND UNDER
SECTION 21 READ WITH 4(1A) OF MMDR ACT AND RULE 165
R/W 144 OF THE KARNATAKA FOREST RULES, 1969, WHICH IS
ARISING OUT OF CR.NO.8/2015 OF SIT, LOKAYUKTA,
BENGALURU AND ETC.
IN CRL.P.No.9277 OF 2016:
BETWEEN:
SRI. NANDAKUMAR SINGH,
S/O. SRI. SUBBARAJ SINGH,
AGED ABOUT 42 YEARS,
PARTNER,
S.V.K.MINERALS,
HOSAPETE,
R/AT NO.07, STRING BLOCK,
MANGALYA RESIDENCY,
BENSON TOWN,
BENGALURU - 560 052. ... PETITIONER
(BY SRI. MURTHY D.NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
7
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032. ... RESPONDENT
(BY SRI. VENKATESH S. ARABATTI, SPL.PP &
SRI. B.S.PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED IN SPL.C.C.NO.470/2016 ON THE FILE OF THE XXIII
ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT,
BENGALURU CITY, FOR OFFENCES PUNISHABLE UNDER
SECTIONS 420, 409 R/W 120B OF IPC AND UNDER SECTION 21
READ WITH 4(1), 4(1A) OF MMDR ACT AND RULE 165 R/W 144
OF THE KARNATAKA FOREST RULES, 1969, WHICH IS ARISING
OUT OF CR.NO.04/2015 OF SIT, LOKAYUKTA, BENGALURU AND
ETC.
IN CRL.P.No.277/2017:
BETWEEN:
1. SRI. B.S. NANDAKUMAR SINGH,
S/O. LATE SUBBARAJ SINGH,
AGED ABOUT 43 YEARS,
MANAGING PARTNER,
M/S. S.V.K.MINERALS,
NO.275, 4TH CROSS,
BASAVESHWARA BADAVANE,
HOSAPETE,
BELLARY DISTRICT - 583 201
AND PARTNER
M/S. S.V.MINERALS,
HOSPETE - 583 201
PRESENT ADDRESS
MANGALYA RESIDENCY APARTMENT,
R/AT NO.007, BASEMENT,
BENSON TOWN,
BENGALURU - 560 052
8
PERMANENT ADDRESS:
NO.275, 4TH CROSS,
BASAVESHWARA BADAVANE,
HOSPETE - 583 201.
2. SRI. KABOOLI MOHAMMED ASGAR KHAN,
S/O. SRI. KABOOLI MOHAMMED AKTHAR KHAN,
AGED ABOUT 45 YEARS,
OWNER,
M/S. ARSHAD EXPORTS,
OFFICE AND R/AT NO.3/224,
VIJAYANAGARA COLLEGE ROAD,
2ND CROSS, KHAN BUILDING,
HOSAPETE - 583 201,
PRESENT ADDRESS
NO.424, 4TH 'C' MAIN, NGEF EAST,
KASTURI NAGAR,
BANGALORE - 560 043. ... PETITIONERS
(BY SRI. MURTHY D.NAIK, ADVOCATE)
AND:
THE STATE,
REPRESENTED BY
SUPERINTENDENT OF POLICE, SIT,
KARNATAKA LOKAYUKTA,
BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032. ... RESPONDENT
(BY SRI. VENKATESH S.ARABATTI, SPL.PP &
SRI. B.S.PRASAD, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED IN SPL.C.C.NO.534/2016 ON THE FILE OF THE XXIII
ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR P.C. ACT,
BENGALURU CITY, FOR OFFENCES PUNISHABLE UNDER
SECTIONS 420, 409, 471 R/W 120B OF IPC AND UNDER
SECTION 21 READ WITH 4(1), 4(1A) OF MMDR ACT AND RULE
165 R/W 144 OF THE KARNATAKA FOREST RULES, 1969, WHICH
9
IS ARISING OUT OF CR.NO.05/2015 OF SIT, LOKAYUKTA,
BENGALURU AND ETC.
THESE WRIT / CRIMINAL PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 19.10.2020,
20.10.2020 & 21.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO
CONFERENCE, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioners in this batch of petitions have challenged the order of taking cognizance and issuance of summons to them by the Special Judge and have sought to quash the proceedings initiated against them. The details of the proceedings, rank of the petitioners and the gist of the allegations made in the charge sheets are detailed in the table herebelow:-
Writ/ Rank
Criminal of the Crime Gist of the allegations
Spl.CC.No.
Petition No. parties No.
18280/2016 A3 12/2015 601/2015 Petitioner being the partner of M/s. S.B. Minerals
& S.V.K. Minerals entered into criminal
conspiracy with other lease holders namely A4, A5, A7 and A8 and the sellers namely A2 and A6 and exporter A1 to export illegally extracted iron ore and in furtherance thereof extracted iron ore from the forest area and transported the same without valid permit and without paying the royalty, to the stock yards of A3 and A4 and sold 13,244.84 MT to A1 and caused total loss of Rs.2,41,46,592.2/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 r/w 120B of IPC and under Section 21 read with 4(1), 4(1-A) of MMDR Act 10 and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969.
2896/2016 A6 24/2014 53/2016 Petitioner being the partner of M/s. S.B. Minerals and M/s. S.V.K. Minerals was involved in the sale of 27706 MT of Iron ore without valid permit and had facilitated the transportation of the above quantity of the iron ore to Belekeri Port and caused loss of Rs.3,45,63,395/- 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 Rule 165 r/w 144 of the Karnataka Forest Rules, 1969. 9178/2016 A10 1/2014 471/2016 (i) Petitioner No.1/Accused No.10 - Sri A13, Nandakumar Singh being the Managing Partner A15, of M/s S.V.K Minerals entered into a criminal A16 & conspiracy with M/s Eagle Traders and Logistics A33 and in furtherance of the said conspiracy sold 3770 metric tons of Iron Ore to M/s Akshatha Minerals without valid permit and without payment of royalty and caused a loss of Rs.1,04,09,864/- to the State Exchequer thereby committed the offences punishable under Sections 379, 420, 471, 409 and 120(B) of IPC, Section 21 r/w 4(1), 4(1)(A) of MMRD Act.
(ii) Petitioner No.2/Accused No.13 -
Sri.Aleem S.Ahmad being the Managing Partner of M/s Muneer Enterprises sold an excess quantity of 1313 metric tones of Iron Ore to M/s Rajmahal Vilas Silks without valid permit and without payment of royalty and caused a loss of Rs.20,00,849/- to the State Exchequer and committed the offences punishable under Sections 379, 420, 409 of IPC, Section 21 r/w 4(1), 4(1)(A) of MMRD Act.
(iii) Petitioner No.3/Accused No.15 -
Sri.Prabhaka Devadiga being the Partner of M/s Oriental Logistics Company purchased totally 10,000 metric tons of Iron Ore i.e,. 5,000 metric tons each from M/s Venkateshwara Transport and M/s Akshata Minerals and sold the same to M/s Muneer Enterprises without valid permit and without payment of royalty and caused a loss of Rs.1,25,26,217/- and committed offences punishable under Sections 471, 420 of IPC, Section 21 r/w 4(1), 4(1)(A) of MMRD Act.
(iv) Petitioner No.4/Accused No.16 -
Sri.Prakash Hegde being the Partner of M/s 11 Oriental Logistics purchased totally 10,000 i.e, 5,000 metric tones of Iron Ore from M/s Akshata Minerals and 5,000 metric tones of Iron Ore from M/s Venkateshwara Transport and sold the same to M/s Muneer Enterpirses by fabricating false documents and without valid permit and without paying the royalty and caused a loss of Rs.1,25,26,217/- to the State Exchequer and committed offences punishable under Sections 471, 420 of IPC, Section 21 r/w 4(1), 4(1)(A) of MMRD Act.
(v) Petitioner No.5/Accused No.33 -
Sri.Mohammad Imam Niyagi entered into criminal conspiracy with accused No.32 and in furtherance thereof sold illegally extracted 609.13 metric tons of Iron Ore by fabricating false documents without payment of royalty and caused a loss of Rs.8,38,728/- and committed the offences punishable under Sections 379, 420, 471, 409, 120B of IPC, Section 21 r/w 4(1), 4(1)(A) of MMRD Act.
9278/2016 A3 8/2015 468/2016 Petitioner being the Managing Partner of M/s.
S.V.K Minerals and M/s S.B Minerals engaged in the sale of Iron Ore entered into a criminal conspiracy with the other accused and in furtherance of the said conspiracy fabricated false documents and on the strength of said documents transported 9500 metric tons of Iron Ore to Belekeri Fort without valid permit and without payment of royalty contrary to the Forest laws and caused a loss of Rs.72,41,673/- to the State Exchequer and committed the offences punishable under Sections 409, 420, 465, 468 r/w 120B of IPC and Section 21 r/w 4(1A) of MMRD Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
9277/2016 A3 4/2015 470/2016 Petitioner was Managing Partner of M/s S.V.K Minerals and M/s S.B Minerals engaged in the sale of Iron Ore. Between 1.1.2009 and 31.5.2019 sold 1893 metric tons of Iron Ore to M/s Kaveri Coffee Traders through M/s.Akshata Minerals Private Limited without valid permit, also facilitated export of said Iron Ore and caused a loss of Rs.28,12,394/- to State Exchequer and committed the offences punishable under Sections 409, 420 r/w 120B and Section 21 r/w 4(1), 4(1-A) of MMRD Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
12277/2017 A3 5/2015 534/2016 Petitioner No.1/accused No.3 - Sri Nandakumar A1 Singh being the Managing Partner of M/s S.V.K Minerals and accused No.1 - Kabooli Mohammed Asgar Khan being the Proprietor of M/s Arshad Exports entered into a criminal conspiracy with the other accused and in furtherance of the said conspiracy fabricated false documents and on the strength of the said documents transported 16976 metric tons of Iron Ore each to Belekeri Fort without valid permit and without payment of royalty contrary to the Forest laws and caused a loss of Rs.2,04,85,106/- to the State Exchequer and committed the offences punishable under Sections 409, 420 471 r/w 120B of IPC and Section 21 r/w 4(1A) of MMRD Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969. In respect of accused No.3, it is stated that he has committed the offence under Section 4(1) of MMRD also.
2. Learned counsel for petitioners has raised the following contentions:
IN W.P.No.18280/2016, CRL.P.Nos.2896/2016, 9278/2016, 9277/2016 & 277/2017:
(i) Two FIRs and two charge sheets have been filed in respect of the same allegations contrary to Article 20(2) of the Constitution of India and Section 300 of Cr.P.C. Dilating on this aspect, learned counsel for petitioners has referred to the allegations made against the petitioner/accused No.3 in W.P.No.18280/2016 arising out of Crime No.12/2015 registered by the Special Investigation Team, wherein the 13 allegations leveled against petitioner/accused No.3 read as under:
"DgÉÆæ:-3 ²æÃ. £ÀAzÁPÀĪÀiÁgï ¹AUï, ¥Á®ÄzÁgÀgÀÄ, ªÉÄ|| J¸ï.©.«Ä£ÀgÀ¯ïì ªÀÄvÀÄÛ J¸ï.«.PÉ.«Ä£ÀgÀ¯ïì gÀªÀgÀÄ EvÀgÉ UÀtÂUÀÄwÛUÉzÁgÀgÁzÀ DgÉÆæ-4, 5, 7 ªÀÄvÀÄÛ 8, ºÁUÀÆ C¢gÀÄ ªÀiÁgÁlUÁgÀgÁzÀ DgÉÆæ - 2 ªÀÄvÀÄÛ 6 ºÁUÀÆ gÀ¥sÀÄÛ zÁgÀgÁzÀ DgÉÆæ-1 gÀªÀgÉÆA¢UÉ ¸ÉÃj CPÀæªÀÄ UÀtÂUÁjPÉ ªÀiÁrzÀ C¢gÀ£ÀÄß gÀ¥sÀÄÛ ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ M¼À¸ÀAZÀ£ÀÄß gÀƦ¹, M¼À¸ÀAa¤AzÀ ¸ÀPÁðgÀ¢AzÀ CgÀtå E¯ÁSÉUÉ ¸ÉÃjzÀ ¨sÀÆ«ÄAiÀÄ°è UÀtÂUÀÄwÛUÉ ¸ÀASÉå: 2550 (©) ¨sÁUÀ zÀ°è DgÉÆæ - 4 jAzÀ 5 gÀªÀgÉÆA¢UÉ £ÀA©PÉ zÉÆæúÀ¢AzÀ CPÀæªÀÄUÀtÂUÁjPÉ £Àqɹ C¢gÀ£ÀÄß vÉUÉzÀÄ, C¢gÀ£ÀÄß ¸ÁUÁluÉ ªÀiÁqÀ®Ä UÀt ªÀÄvÀÄÛ ¨sÀÆ «eÁÕ£À E¯ÁSÉ ªÀÄvÀÄÛ CgÀtå E¯ÁSÉAiÀÄ ¥ÀgÀªÁ¤UÉUÀ¼À£ÀÄß ¥ÀqÉAiÀÄzÉ ¸ÁQë-29 ªÀÄvÀÄÛ 30 gÀªÀgÀÄUÀ¼À ¸ÀA¸ÉܬÄAzÀ C¢gÀ£ÀÄß DgÉÆæ - 3 gÀªÀgÀ ºÉ¸Àj£À°ègÀĪÀ ªÀÄvÀÄÛ ¸ÁQë-29 gÀªÀgÀ ºÉ¸Àj£À°ègÀĪÀ ¨sÀÆ«ÄAiÀÄ°è ¸ÁQë-18 gÀªÀjAzÀ vÀÆPÀzÀ «Ä¶£À£ÀÄß C¼ÀªÀr¹ ¥ÀgÀªÁ¤UÉAiÀÄ£ÀÄß ¥ÀqÉAiÀÄzÉ DgÉÆæ-3 ªÀÄvÀÄÛ 4 gÀªÀgÀÄ ¤«Äð¹PÉÆArgÀĪÀ ¸ÁÖPïAiÀiÁqÀðUÉ ¸ÁUÁluÉ ªÀiÁr Ej¹PÉÆArzÀÝ 13,244.84 JA.n. C¢gÀ£ÀÄß DgÉÆæ-1 gÀªÀjUÉ ªÀiÁgÁl ªÀiÁr ¸ÀéAvÀPÉÌ ¯Á¨sÀ ªÀiÁrPÉÆAqÀÄ, UÀt ªÀÄvÀÄÛ ¨sÀÆ «eÁÕ£À E¯ÁSÉ ºÁUÀÆ CgÀtå E¯ÁSÉUÀ¼À ¥ÀgÀªÁ¤UÉ ¥ÀqÉAiÀÄzÉ EgÀĪÀÅzÀjAzÀ, 1) CzÀj£À ªÀiË®å `:
2,18,80,475.6 UÀ¼ÀÄ, 2) gÁdå zsÀ£À `: 21,88,047.6 UÀ¼ÀÄ & 3) n.¹.J¸ï vÉjUÉ `: 58,202.00 UÀ¼À£ÀÄß ªÀÄvÀÄÛ CgÀtå E¯ÁSÉUÉ ¸ÀA§A¢ü¹ ¥sÁgɸÀÖ ¥Á¸ÀμÀ ªÉÆvÀÛ `: 19,867.00 UÀ¼À£ÀÄß ¨sÀj¸ÀzÉà ¸ÀPÁðgÀzÀ ¨ÉÆPÀ̸ÀPÉÌ `: 2,41,46,592.2 UÀ¼ÀµÀÖ£ÀÄß £ÀµÀÖªÀÅAlÄ ªÀiÁr PÀ®A: 409, 420 ¸À»vÀ 120B ¨sÁ.zÀA.¸ÀA., PÀ®A: 21 ¸À»vÀ 4(1) & 4(1A) JA.JA.r.Dgï 14 PÁAiÉÄÝ 1957 ªÀÄvÀÄÛ gÀƯï 165 ¸À»vÀ 144 PÀ. CgÀtå PÁAiÉÄÝ 1960 jÃvÁå C¥ÀgÁzsÀªÉ¸ÀVgÀÄvÁÛgÉ."
It is contended that in respect of the very same offence, CBI has filed RC No.15(A)/2012 and has laid charge sheet against several accused. In the said proceedings, one of the partner of the petitioner-firm Sri. Shyamraj Singh has been arrayed as accused No.14. In order to show that even in the said charge sheet identical allegations are leveled, the learned counsel has referred to Annexure-I of the said charge sheet, which reads as under:
"15. Shri. Shyamraj Singh (A-14) is the partner of M/s S.V.K. Minerals, Hospet, which is a trading firm in iron ore. He was managing all the affairs of Mining lease No.2550. He was also managing the day to day activities of iron ore plots i.e., Ghoshala Plot, Jaisighpur and S.V.K. Plot Jaisinghpur. Shri. Shyamraj Singh sold qty. 5081 MT of illegal iron ore to M/s Arshad Exports by receiving cash payment. The said material was sold and delivered by Shri. Shyamraj Singh to M/s.Arshad Exports at Ghoshala Plot situated in Jaisinghpur village, without valid permits issued by the Departments of Mines & Geology and Forest Department of Karnataka State. The transportation 15 of the said iron ore qty. 5081 MT was made by M/s.D.B. Roadlines from Ghoshla Plot, Jaisinghpur to Belekeri port on the basis of fake transportation records issued by M/s.S.V.K. Minerals and the firms belonging to Shri. Swasthik Nagaraj (A-5) and Shri.Kharapudi Mahesh (A-6). Shri. Shyamraj Singh is also involved in the illegal transportation of iron ore in other mining related cases filed before this Hon'ble Court on the orders of Supreme Court of India."
Based on the above allegations, it is contended that in all the above matters, identical allegations are leveled against the petitioners. In RC No.15(A)/2012, Sri.B.S.Nandakumar Singh has been cited as witness No.13, whereas in the instant cases, he is cited as accused Nos.3, 6 and 10. Therefore, registration of FIRs and submission of charge sheets on the basis of same facts, is legally untenable and is violative of Article 20(2) of the Constitution of India and Section 300 of Cr.P.C. In support of this submission, learned counsel has relied on the decisions of the Hon'ble Supreme Court in AMITBHAI ANILCHANDRA SHAH Vs. CBI & ANOTHER, (2013) 6 SCC 348 and T.T. 16 ANTONY Vs. STATE OF KERALA AND OTHERS, (2001) SCC (Crl.) 1048.
IN W.P.No.18280/2016, CRL.P.Nos.2896/2016, 9178/2016, 9278/2016, 9277/2016 & 277/2017:
(ii) It is contended in W.P.No.18280/2016 and Crl.P.No.2896/2016 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; it does not specify the offences for which the cognizance has been taken by the Court. In support of this submission, 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; Constitution Bench decision in SARAH MATHEW Vs. INSTITUTE OF CARDIO VASCULAR DISEASES AND OTHERS, (2014) 2 SCC 62 and MEHMOOD UL REHMAN Vs. KHAZIR MOHAMMAD TUNDA & OTHERS, (2015) 12 SCC 420. It is contended that the order taking cognizance being illegal, the 17 subsequent proceedings initiated against the petitioners are liable to be quashed.
(iii) The third contention urged by the learned counsel for petitioners is that the registration of FIRs for the offences under the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'M.M.D.R. Act') and the charge sheets filed for the alleged offences, is illegal in view of the bar contained in 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.
(iv) The charge sheets filed by the respondent do not disclose the basic ingredients constituting 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.
18
IN CRL.P.Nos.9178/2016, 9278/2016, 9277/2016, 277/2017:
(v) It is further contended that the allegations made in the charge sheets are directed against the Company/Firm of which the petitioners are Managing Partners / Partners, prosecution of petitioners without making the Company/Firm an accused is illegal and unsustainable as held by the Apex Court in the following decisions;
(i) (2009)1 SCC 516, R.KALYANI V/s. JANAK
C.MEHTA AND OTHERS
(ii) (2017) 5 SCC 725, K.SITARAM AND
ANOTHER V/s. CFL CAPITAL FINANCE
SERVICE LIMITED AND ANOTHER
(iii) (2015) 12 SCC 781, SHARAD KUMAR
SANGHI V/s SANGITA RANE.
(iv) ILR 2010 Kar. 3287, SRI RAJESH ADANI
AND ANOTHER V/s ASSISTANT LABOUR
COMMISSIONER AND ANOTHER, and
(v) (2012) 5 SCC 661, ANEETA HADA V/s
GODFATHER TRAVELS AND TOURS PRIVATE
LIMITED.
19
(vi) Finally, the allegations made in the charge sheets do not prima facie constitute the ingredients of the criminal offences so far as petitioners are concerned. As per the averments made in the charge sheets, petitioners were only Traders. They were not under any legal obligation to obtain permit or to pay royalty in terms of Section 9(2) of MMRD Act, 1957 and also in view of Rule 4(2) of the Karnataka (Mineral Rights) Tax Act, 1984 and therefore, invocation of the provisions of MMRD Act against the petitioners is contrary to the material on record. In support of this submission, the learned counsel placed reliance on following decisions;
(i) (2014) 6 SCC 590, GOA FOUNDATION V/s
UNION OF INDIA AND OTHERS
(ii) AIR 2008 All 75, VIRENDRA GIRI V/s
STATE OF U.P AND OTHERS
3. Meeting these arguments, the learned Spl.P.P. appearing for respondent would submit that the allegations made in RC.No.15(A)/2012 are entirely different from the allegations made in the instant FIRs and therefore, the 20 submission of the learned counsel for petitioners that they have been sought to be prosecuted on the basis of two identical FIRs is factually incorrect. Learned Spl.P.P. also pointed out that the transactions referred in the FIRs are different and even the set of accused in the cases are different and moreover, petitioner/accused No.3 (Sri. Nandakumar Singh) is arrayed as witness No.13 in RC No.15(A)/2012, whereas in the instant cases, the petitioners themselves being miners, they are prosecuted for the alleged contraventions of the provisions of the M.M.D.R. Act and therefore, there is no illegality in the registration of the FIRs against the petitioners and the consequent submission of charge sheets by the respondent for the alleged offences.
4. Further, the learned Spl.P.P. would submit that petitioners are prosecuted in their individual capacity as well as partners of the Company. Referring to paragraphs 40 and 41 of the Sunil Bharti Mittal's case, the learned counsel would submit that alleged offences having been 21 committed by the petitioners as partners of the relevant company, petitioners are also liable to answer the said charges.
5. Further, the learned Spl. P.P. pointed out that the petitioners are sought to be prosecuted for the offences under Sections 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 traders, involved in purchase and exportation of iron ore. Under the said circumstances, the allegations made against the petitioners clearly fall within the ambit of Section 4(1A) of the M.M.D.R. Act, as such, there no illegality in the proceedings initiated against the petitioners.
6. Regarding the alleged defect in the cognizance orders as highlighted by the learned counsel for petitioners is concerned, the learned Spl.P.P. would submit that the orders passed by the learned Special Judge taking cognizance of the alleged offences meets the legal 22 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 report filed under Section 173 of Cr.P.C. In the instant cases, the learned Special Judge having taken cognizance on the basis of the police report/final report as well as in terms of the written complaints filed by the authorized officer in terms of Section 22 of the M.M.D.R. Act, no fault could be found with the orders taking cognizance by the learned Special Judge. For the same reason, the learned Spl.P.P. would submit that the decisions relied on by the learned counsel for petitioners on this aspect, are not applicable to the facts of the cases.
7. The contention raised by the learned counsel for petitioners regarding offences under the provisions of the M.M.D.R. Act is concerned, the learned Spl.P.P. has referred to the notification dated 21.01.2014 issued by the 23 Government of Karnataka enclosed to the Statement of Objections filed on behalf of the respondent and would submit that under the said notification, the police officer above the rank of the Sub-Inspector of Police are constituted as authorized officers for the purpose of Section 22 of the M.M.D.R. Act. In the instant cases, FIRs are registered by the Superintendent of Police and investigation has been conducted by the Inspector of Police. These officers are duly authorized under the above notification, to investigate and to lay the charge sheets including for the offences under the M.M.D.R. Act and there is no bar contemplated to investigate under Section 22 of the M.M.D.R. Act. Therefore, the charge sheets laid before the Court do not suffer from any illegality as pointed out by the learned counsel for petitioners. Further, the learned Spl.P.P. pointed out that to obviate any legal issues, complaints as required under Section 22 of the M.M.D.R. Act were also filed before the learned Special Judge and as such, there is substantial compliance of the requirements of the M.M.D.R. Act.
24
8. Lastly, with regard to the facts constituting ingredients of the offences alleged against the petitioners are concerned, the learned Spl.P.P. submitted that the allegations made in the complaints, charge sheets as well as the documents filed in support thereof clearly disclose the ingredients of the offences alleged against the petitioners, as such, there is no illegality whatsoever in the proceedings initiated against the petitioners and thus, sought for dismissal of the petitions.
Considered the submissions and perused the records. Reg: Validity of Order of Cognizance and Summons:
9. On perusal of the order sheets maintained by the Special Court in the respective proceedings, it is noticed that in Crl.P.Nos.9178/2016, 9278/2016, 9277/2016 & 277/2017 detailed orders have been passed by the Special Court taking cognizance of the offences and issuing summons to the petitioners. However, in other matters, a 25 brief order as in Spl.C.C.No.601/2015 is passed, which reads as under:
"Perused the final report. Cognizance is taken against accused No.2 to 8. Register the case against the accused No.2 to 8. Register the case and issue summons to accused No.2 to 8 returnable by 27-02-2016."
10. As rightly submitted by the learned counsel appearing for the petitioners/accused, this order does not specify the offences in respect of which cognizance has been taken by the Special Court. It is also not forthcoming in this order as to whether cognizance has been taken in respect of the offences under IPC or under the provisions of MMDR Act or Forest Rules. Nonetheless, it is submitted at the Bar that the summons issued to the respective accused contained the details of the offences for which the summons were issued. Records also indicate that on appearing before the learned Special Judge, the petitioners moved for bail based on the offences mentioned in the summons. Therefore, it is clear that right from the inception, petitioners were aware of the offences for which summons were issued to them. It 26 is in this background, the objection raised by the petitioners/accused questioning the correctness and legality of the order of cognizance and the consequent summoning orders issued by the Special Court requires to be considered.
11. What is taking cognizance is not defined in the Criminal Procedure Code. But, it is now well settled that any Magistrate who takes cognizance of an offence must apply his mind to the facts of the case for the purpose of proceedings in a particular way. In R.R.CHARI vs. STATE OF UTTAR PRADESH, AIR(38) 1951 SC 207, the Hon'ble Supreme Court relying on the dicta on GOPAL MARWARI AND OTHERS vs. EMPEROR, AIR (30) 1943 Pat. 245, has observed that, "the word 'cognizance' was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings". Section 209 of the Code also provides for taking cognizance of the offence by the Magistrate while committing the case to the Sessions Court 27 for trial but, the cognizance taken by the Magistrate under Section 209 is quite different from the cognizance taken by the Magistrate under Section 190(1)(a) of the Code or the cognizance taken by the Sessions Court before commencing the trial after committal. In the instant cases, undisputedly, the learned Special Judge has proceeded to take cognizance of the alleged offences after the submission of the final reports by SIT.
12. The reading of the cognizance orders passed by the learned Special Judge clearly indicate that on perusal of the charge sheets submitted by the SIT, learned Special Judge has taken cognizance of the alleged offences purportedly under Section 190(1)(a) of the Code and has proceeded to issue summons to the petitioners/accused, as such, there cannot be any difficulty in holding that by considering the facts of the cases as borne on the final reports, the learned Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act.
28
13. It is trite law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 of the Code, law does not require the Magistrate to pass elaborate order recording reasons for issuance of summons; though the order must reflect that he has considered the final report and satisfied himself that there is sufficient ground for proceeding against the accused named in the final report.
14. In BHUSHAN KUMAR vs. STATE OF (NCT OF DELHI), (2012) 5 SCC 424, the Hon'ble Supreme Court has reiterated the requirement of application of mind in the process of taking cognizance and following the decision in CHIEF ENFORCEMENT OFFICER vs. VIDEOCON INTERNATIONAL LIMITED, (2008) 2 SCC 497, has held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs 12 and 13 of the decision in CHIEF ENFORCEMENT OFFICER, read as under:-
"12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying 29 an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued."
15. In the backdrop of the above principle, if the order of cognizance and the summons issued by the learned Magistrate in the instant cases are analyzed, it is clear from the above order that on consideration of the final reports submitted by SIT, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioners. Therefore, there can be no difficulty in 30 upholding the validity of the cognizance taken by the learned Special Judge and the summons issued to the petitioners insofar as the IPC and Forest offences are concerned.
16. 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."
17. Learned Counsel for the petitioners/accused has placed heavy reliance on the decision of the Hon'ble Apex Court in the case of STATE (NCT OF DELHI) vs. SANJAY, (2014) 9 SCC 772, in paragraph 70, wherein it is held as under:
31
" 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)
18. What emerges from the above decision is that based on the final report filed under Section 173 of the Code, the Special Court cannot take cognizance of the offences under the provisions of the MMDR Act. Apparently, to get over this restriction, the respondent appears to have filed a complaint in each of the proceedings before the Special court in terms of Section 22 of the MMDR Act. The 32 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 sheets 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 complaints as mandated in Section 22 of the MMDR Act?
19. Though it is vehemently argued by the learned counsel for the petitioners/accused that such exercise has not been done by the Special Court as the impugned 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 33 petitioners/accused in the final reports 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 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.
20. 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 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 34 he must have taken notice of accusations and applied his mind to allegations made in complaint or in police report or information received from a source other than a police report, as the case may be, and material filed therewith. It is only when the Magistrate applies his mind and is satisfied that allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offenders, that it can be positively stated that he has taken cognizance of the offence."
21. Similar view is taken in MEHMOOD UL REHMAN vs. KHAZIR MOHAMMAD TUNDA AND OTHERS, (2015) 12 SCC 420, wherein it is held that "though no formal or speaking or reasoned orders are required at the stage of Ss.190/204 Cr.P.C., there must be sufficient indication in the order that the Magistrate is satisfied that: (i) the facts alleged in the complaint constitute an offence, and (ii) these facts when considered along with the statements recorded under S.200 CrPC and the result of inquiry or report of 35 investigation under S.202 CrPC, if any, prima facie make the accused answerable before the criminal court."
22. As the impugned orders and the records of the proceedings disclose that the learned Special Judge has considered the material placed before him namely, the charge sheets which contain identical allegations as found in the complaints filed by the authorized officer under Section 22 of the Act, I hold the cognizance taken by the learned Special Judge and the summons issued by him in respect of MMDR offences is in accordance with Section 22 of MMDR Act.
23. Viewed from another angle, on filing a complaint either under Section 200 Cr.P.C., 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 Cr.P.C., or to postpone the process and hold an enquiry in terms of Section 202 of Cr.P.C. In the instant cases, detailed investigation into the alleged 36 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 reports. It is not the case of the petitioners that the reports 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 37 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.P.C., 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 38 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.
24. 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 reports submitted by SIT, in my view, the course adopted by the learned Special Judge in considering the final reports 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 39 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.
25. 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.
Reg: Non-prosecution of Firms:
26. The contention urged by learned counsel for the petitioners that the allegations leveled in the charge sheets are directed only against the Firms 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 40 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.
27. 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 firm/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 41 INVESTIGATION, (2015)4 SCC 609 (paras 40, 42 and 43), which is extracted herebelow:-
"40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company.
42. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if 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 42 of vicarious liability, by specifically incorporating such a provision."
28. In the instant cases, the allegations are directed only against the petitioners. The role played by the petitioners have 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 Firms 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 43 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.
Reg: Applicability of Section 4(1A) of the MMDR Act:
29. Regarding the contention urged by learned counsel for petitioners that the petitioners being the traders were not required to obtain 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 44 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.
Reg: Registration of Multiple FIR's:
30. Insofar as the contention urged by learned counsel for the petitioners that on account of the registration of R.C.No.15(A)/2012 by the CBI, the registration of the FIRs in Crime Nos.12/2015, 24/2014, 1/2014, 8/2015, 4/2015, 5/2015 by Superintendent of Police, SIT, Karnataka Lokayukta, is illegal and violative of Section 300 Cr.P.C. is concerned, it is noticed that FIR in R.C.No.15(A)/2012 is registered pursuant to the directions 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 case(s) relating to (i) illegal 45 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.
31. Based on this direction, R.C.No.15(A)/2012 is registered for the offences under Sections 120(b) r/w 420, 379, 411, 447 IPC and Sections 13(2) r/w 13(1) (d) of Prevention of Corruption Act and Sections 21 , 23 r/w 4(1), 4(1A) of the MMDR Act and Section 24 of Karnataka Forest Act, 1963.
32. FIRs in Crime Nos.12/2015, 24/2014, 1/2014, 8/2015, 4/2015 and 5/2015 are registered by Superintendent of Police, SIT, Karnataka Lokayukta, for the alleged offences punishable under Sections 379, 409, 420, 465, 468, 471 r/w 120B IPC and Section 21 r/w 4(1), 4(1A) of the MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969. A perusal of these FIRs go to show that 46 these FIRs are registered for distinct offences and only Sections 379, 420, r/w 120B IPC and Sections 21 r/w 4(1), 4(1A) of the MMDR Act are overlapping in the 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 Article 20(2) of the Constitution of India has no application, though the offences may have same overlapping features.
33. Even though the learned Counsel appearing for petitioners has vehemently argued with reference to the decided case laws that second FIR in respect of the same offence is not legally tenable, yet 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 decision relied on by the learned counsel in ANJU 47 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 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 petitioners or their counsel, the case of the prosecution cannot be thrown out nor the petitioners can be discharged of the alleged offences based on the plea set up by the petitioners. It is also noticed that in RC No.15(A)/2012, Sri. Nandakumar Singh was only a witness and not an accused in that case. Petitioners having failed to establish that the alleged FIR in R.C.No.15(A)/2012 arise out of the same incident or in respect of the same transaction, this plea is also liable to be rejected.
34. The allegations made in the complaints which are duly supported by the materials collected by SIT during 48 investigation, undoubtedly make out the ingredients of the offences under Sections 379, 409, 420, 465, 468, 471 r/w 120B IPC and Section 21 r/w 4(1), 4(1A) of the MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969. In the course of the arguments, the learned Spl.P.P. 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, Writ Petition No.18280/2016, Criminal Petition Nos.2896/2016, 9178/2016, 9278/2016, 9277/2016, 277/2017 are dismissed.
In view of dismissal of main petitions, all pending I.As., are also dismissed.
Sd/-
JUDGE nd/sv/bss/mn