Karnataka High Court
Shyamraj Singh vs State Of Karnataka on 1 October, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.21756 OF 2018 (GM-RES)
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,
HOSPET-583201.
BALLARY DISTRICT. ... PETITIONER
(BY SRI: HASHMATH PASHA, ADVOCATE)
AND
STATE OF KARNATAKA
BY SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTHA,
BENGALURU-560001.
REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR. ... RESPONDENT
(BY SRI:A.S.PONNANNA, AAG A/W
SRI: P GOVINDAN, SPL.PP )
THIS WRIT PETITION ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CRIMINAL PROCEDURE CODE PRAYING TO
DIRECT, QUASH THE FIR REGISTERED IN CRIME NO.31/2015
FOR OFFENCES PUNISHABLE UNDER SECTIONS 379, 409, 420,
447, 468 AND 471 READ WITH SECTION 120B OF IPC AND
2
UNDER SECTION 13[2] READ WITH SECTION 13[1][D] OF
PREVENTION OF CORRUPTION ACT, 1988 AND SECTIONS 21, 23
READ WITH SECTION 4[1] AND 4[1][A] OF MINES AND
MINERALS [DEVELOPMENT AND REGULATION] ACT, 1957 ON
THE FILE OF THE SPECIAL INVESTIGATION TEAM, KARNATAKA
LOKAYUKTHA, BENGALURU VIDE ANNEXURE-A AS ABUSE OF
PROCESS OF LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.08.2018 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
In this petition, the FIR in Crime No. 31/2015 registered by the respondent-SIT for offences punishable under sections 379, 409, 420, 447, 468 and 471 read with 120B of Indian Penal Code and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and sections 21, 23 read with section 4(1) and 4(1)(A) of Mines and Minerals (Development and Regulation) Act, 1957 is sought to be quashed.
2. The main contention of the petitioner is that M/s. S.B.Minerals, a Partnership Firm initially was granted mining lease in M.L.No.1301 for a period of 30 years w.e.f. 17.01.1976 and the same was extended for a further period of 20 years w.e.f. 17.01.2006 under M.L.2550 and this lease and this lease area consists of 110 acres. On passing of time, the family 3 members of M/s S.B.Minerals divided this lease area into A and B Block. 'A' Block is controlled by Smt.Rani Samyuktha and her relative Yerri Babu and 'B' Block was under the control of S.B.Jairaj Singh and Shri. Nanda Singh and whatever iron ore material produced under 'B' Block was traded through the firm M/s S.V.K. Minerals of Jaisinghpura, Hospet and for this firm M/s SVK Minerals two partners by name Shri Nanda Kumar Singh (Managing Partner) and this petitioner Shri.Shyamraj Singh, is another partner. It is further contended that M/s S.V.K. Minerals, Jaisinghpura, Hospet, which is only dealer of iron ore and this firm consists of Mr.Nandakumar Singh as Managing partner and the petitioner is only a nominal partner. Sri.Nandakumar Singh was in charge of day to day business affairs of M/s S.V.K. Minerals Firm. In this FIR, Investigation Officer without ascertaining the real and correct facts has named this petitioner Shri. Shyamraj Singh as one of the partners of M/s S.B.Minerals, partnership firm. Infact, this petitioner is not one of the partners of M/s S.B.Minerals. Therefore, without any basis and on misconception of facts, FIR is registered against the petitioner and hence the petitioner has sought to quash the FIR in Cr.No.31/2015 and the consequent investigation thereon. 4
3. The petition is opposed by the learned Additional Advocate General contending that the petitioner is a Partner in M/s.S.V.K. Minerals who have made an agreement to sell the extracted iron ore from M/s.S.B.Minerals M.L. No.2550, the investigation has revealed the active participation of the petitioner in the illegal mining operations. Specific allegations are found in the FIR with regard to the involvement of the petitioner and therefore, there is no justifiable reason to quash the complaint.
4. Having heard the learned counsels appearing for the parties, the points that arise for consideration are, (1) Whether the SIT, Karnataka Lokayukta is authorized to register the FIR and to investigate into the alleged offences?
(2) Whether the allegations made against the petitioner prima facie constitute the ingredients of the offences alleged against the petitioner in the FIR?
5(i) Point No.1:
The material on record indicates that Government of Karnataka referred several issues concerning illegal mining in the State to the Hon'ble Karnataka Lokayukta for investigation under 5 section 7(2-A) of the Karnataka Lokayukta Act 1984 vide its order dated 12.03.2007 and 09.09.2008. Pursuant to the second report of the Hon'ble Lokayukta dated 27.07.2011, the State Government constituted a High Level Committee for implementation of the recommendations and observations made in the Lokayukta Report in the Government Order dated 18.08.2011.
(ii) The Hon'ble Lokayukta has dealt with a large number of cases pertaining to illegal mining issues in several Chapters in the second report dated 27-7-2011 and has recommended further investigations on several issues by competent agencies. The High Level Committee after examining the detailed investigation report part - II recommended various measures and actions to be taken by the State Government. One of the recommendations of the High Level Committee was to form a Special Investigation Team (SIT). Accordingly a Special Investigation Team (SIT) under the chairmanship of Sri.Deepak Sharma, Additional Principal Chief Conservator of Forests, an inter-disciplinary team of experts comprising of Heads of various Departments was constituted vide order dated 09.01.2012 to carry out further investigation in a total of 26 issues pertaining to illegal mining in the State.
6
(iii) In the meanwhile, the Hon'ble Supreme Court in its order dated 16.09.2013 in an Interlocutory Application No.189 of Writ Petition 562/2009 has permitted the CBI to refer the matters with respect to the exporters who had exported less than 50,000 MTs and were not enquired into in the preliminary enquiry and also has permitted the CBI to refer the cases of exporters who had exported less than 50,000 MTs of iron ore without valid permits to refer to the Government of Karnataka for taking further necessary action under the relevant laws as recommended by the Central Empowered Committee report dated 5-9-2012.
(iv) Accordingly, the Government took a Cabinet decision to refer all the issues mentioned in the annexure to Government Order No:CI 282 MMM 2011 dated 09.01.2012 to the Hon'ble Lokayukta for further investigation by the Lokayukta Police except three issues. Accordingly, the Government issued order NO.CI.282:MMM.2011(P), Bengaluru dated 22.11.2013 which reads as follows:
GOVERNMENT ORDER NO.CI.282:MMM.2011(P), BENGALURU, DATED:22.11.2013 The State Government, after considering the recommendations of Hon'ble Lokayukta in the second part of the report dated: 27-7-2011 for cases where there is need for further enquiry, and as per the Order passed by the Hon'ble Supreme Court dated: 16.09.2013 in I.A.No.189 of Writ Petition No.562/2009, The Government in 7 Suppression of the earlier orders No.CI 282 MMM 2011 Dated:09.01.2012 and 25.06.2012 hereby entrusts such cases enumerated comprehensively in the Annexure-A of this Government Order for detailed investigation to the Hon'ble Karnataka Lokayukta for further investigation by the Lokayukta Police and to proceed with criminal prosecutions if necessary.
BY ORDER AND IN THE NAME OF THE GOVERNOR OF KARNATAKA (K.VENKATESH), Under Secretary to Government (Mines) (I/c) Commerce & Industries Department.
(v) As could be seen in Annexure-'A' appended to the said order, the issues referred to the Hon'ble Lokayukta for further investigation are listed therein. The illegalities pertaining to the petitioner herein find mention in the said Annexure-'A'.
Therefore, the argument of the learned counsel for the petitioner that the SIT, Karnataka Lokayukta has no jurisdiction to register FIR and investigate into the alleged offences is liable to be rejected. Accordingly, said contention is rejected.
6. In so far as the investigation into the offences under the provisions of the MMDR Act is concerned, it is also a matter on record that the registration of the FIR in Crime No.32/2014 was challenged by one of the accused Linganagouda and others in Criminal Petition Nos.5684/2015, 5686/2015, 5945/2015 and 6689/2015. A prayer was made therein for quashing the entire proceedings and FIR in Crime No.32/2014. This court vide order 8 dated 28.03.2017 quashed the entire proceedings and FIR in Crime No.32/2014. Aggrieved by the said order, the SIT, Karnataka Lokayukta preferred an appeal before the Hon'ble Supreme Court of India in Special Leave to Appeal (Criminal) Nos.6244-6251 of 2017 and the Hon'ble Supreme Court of India (Criminal Appellate Jurisdiction) has passed an order in Criminal Appeal Nos.1777-1784/2017 (arising out of SLP (Crl.) Nos.6244- 6251 of 2017) on 12.10.2017 setting aside the order passed by this Court which reads as under:
"The Deputy Superintendent of Police, Karnataka Lokayukta, filed a complaint dated 30.05.2014 addressed to Police Inspector, Karnataka Lokayukta Police Station, making allegations of illegal mining by certain private persons in collusion with the public servants. When the said allegation was being investigated, the respondents filed a petition before the High Court under section 482 of Code of Criminal Procedure 1973 challenging the proceedings on the ground that the cognizance of the offence under section 22 of the Mines and Minerals (Development and Regulation) Act,1957 can be taken only a complaint of a specifically authorized person. This plea has been upheld by the High Court and proceedings quashed.
We find that the stage of cognizance will arise only after investigation is completed and there is no bar to the investigation being carried out by the Lokayukta Police on the complaint in question particularly when the allegation include offence under the Prevention of Corruption Act, 1988. In this view of matter, the impugned order cannot be sustained.9
Accordingly, the impugned order is set aside and appeals are allowed. The concerned Police may carry out the investigation and proceed in accordance with law."
In the light of the above order, even the contention urged by the petitioner that the SIT has no jurisdiction to register the FIR and investigate into the alleged offences is liable to be rejected.
7. Point No.2.
Coming to the allegations made in the FIR are concerned, on careful reading of the FIR, it is noticed that before registering the FIR, a preliminary enquiry was conducted and a source report was prepared and it was ascertained that illegal quarrying activities, extraction of iron ore and transportation was being carried on by the Company in violation of the terms of lease. There are specific allegations in the complaint that the mining group comprising of Shri G.Janardhan Reddy, Shri K.M. Ali Khan, Shri Madhu Kumar Verma, Shri.K.V.Nagaraju @ Swastik Nagaraj, Shri Karapudi Mahesh, Shri B.Nagendra and Shri.K.Nagaraju, both partners of M/s.Eagle Traders and Logistics, and others and other unknown public servants conspired together and as a result of the said conspiracy M/s.S.B.Minerals (ML 2550) represented by Shri Jayaraj Singh, Shri Shamraj Singh, Shri Nanda Singh, Smt.Rani Samyukta and 10 Shri Yerribabu entered into illegal agreement for extraction and sale of iron ore with M/s. Lakshmi Aruna Minerals and other firms belonging to the above mentioned mining group. As a result of these agreements, the mine belonging to M/s.S.B. Minerals (ML No.2550) was virtually taken over by the said mining group leading to large scale illegal extraction, transportation and trading of iron ore causing huge loss to the State Government exchequer. During the period from April 2009 to December 2009, about 12,33,964 MT of iron ore was thus illegally extracted, transported and traded by resorting to encroachment, theft and misappropriation, thereby cheating Government of Karnataka and causing it huge financial loss to the extent of Rs.3,08,49,10,000/- (@Rs.2,500/- per MT) resulting from loss of iron ore and corresponding loss of royalty and other taxes.
8. Therefore, in the wake of the above allegations, it cannot be said that the FIR did not disclose any ingredients of the offences or that the investigation was commenced without any basis. Relevant documents are also seen to have been produced in support of the allegations made in the FIR. All these allegations necessarily require to be investigated. 11
9. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
10. In MACHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others, 1988 Cri.L.J. 853, it is held that:
"The legal position is well settled that when a prosecution at the initial stage is asked to be 12 quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."
11. In the instant case, as already stated above, the criminal action is initiated after due enquiry based on the source report which prima facie makes out serious violation and contravention of the statutes. The Magnitude of the transactions and the ramification of the offences are required to be unearthed in a thorough and penetrating investigation. On careful consideration of the allegations made in the FIR and the material produced by the respondent before the Court, I do not find any justifiable reason to interfere with the FIR and the investigation initiated thereon. The allegations made in the FIR prima facie make out ingredients of the offences alleged therein. The SIT is duly authorized and competent to investigate into the matter. No prejudice would be caused to the petitioner if the alleged violations are investigated by the respondent. The exact role of the petitioner in the respective Firms which were involved in the alleged offences could be ascertained only after 13 investigation. If the investigation leads to the final opinion that the alleged offences are committed without the knowledge and connivance of the petitioner, the charges against the petitioner would naturally be dropped. Therefore, the apprehension of the petitioner that the proceeding initiated in Cr.No.31/2015 has resulted in abuse of process of court is ill-founded. The petitioner has failed to make out any justifiable ground to quash the FIR and the consequent investigation. As a result, the petition is liable to be dismissed.
Accordingly, the petition is hereby dismissed.
Sd/-
JUDGE Bss.