Karnataka High Court
Sri B P Anand Kumar @ Anand Singh vs State Of Karnataka By on 13 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.3405/2017
C/w
CRIMINAL PETITION Nos.3406/2017, 3407/2017,
3525/2017 to 3527/2017, 3575/2017 to 3577/2017,
3899/2017 & 4012/2017,
BETWEEN:
Sri. B.P. Anand Kumar @ Anand Singh,
S/o. Late Prithviraj Singh,
Aged about 49 years,
Director: M/s. Vaishnavi Anand
Project Private Limited and
Partner of M/s. S.B. Minerals,
M.L.No.2515,
Residing at K.R. Road,
Ranipet,
Hospet - 583 201.
Bellary District. ...Petitioner
(Proprietor of M/s. Vaishnavi Minerals (Common)
in Crl.P.No.3899/2017 and Crl.P.No.4012/2017)
(By Sri. Hashmath Pasha, Senior Advocate)
AND:
State of Karnataka,
By Special Investigation Team,
Karnataka Lokayukta,
Bengaluru - 560 001.
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(Represented by learned
Special Public Prosecutor) ...Respondent
(Common)
(By Sri. Venkatesh S. Arbatti, Spl.PP &
Sri. B.S. Prasad, Spl.PP)
IN CRL.P.No.3405/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the 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, 409, 471,
120B of IPC and under Section 21 read with 4(1), 4(1)(A) of
MMDR Act, which is arising out of Cr.No.1/2014 of SIT,
Lokayukta, Bengaluru.
IN CRL.P.No.3406/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in Spl.
C.C. No.19/2016 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 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, which is arising out of Cr.No.10/2014 of
SIT, Lokayukta, Bengaluru.
IN CRL.P.No.3407/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in Spl.
C.C. No.12/2016 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 409, 420 read with
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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, which is arising out of Cr.No.19/2014 of
SIT, Lokayukta, Bengaluru.
IN CRL.P.No.3525/2017:
This Criminal Petition is filed u/s 482 Cr.P.C praying to
quash the proceedings initiated in Spl.C.C.No.469/2016 on
the file of the XXIII Additional City Civil and Senior Judge
and Special Judge for P.C. Act, Bengaluru City, for offences
punishable under Sections 409 and 420 read with 120(B) of
IPC and Section 21 read with 4(1) and 4(1A) of MMDR Act
and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969,
which is arising out of Cr.No.17/2015 of SIT, Lokayukta,
Bengaluru.
IN CRL.P.No.3526/2017:
This Criminal Petition is filed u/s 482 Cr.P.C praying to
quash the proceedings initiated in Spl. C.C. No.53/2016 on
the file of the XXIII Additional City Civil and Senior Judge
and Special Judge for P.C. Act, Bengaluru City, for offences
punishable under Sections 409 and 420 read with 120(B) of
IPC and Section 21 read with 4(1) and 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.
IN CRL.P.No.3527/2017:
This Criminal Petition is filed u/s 482 Cr.P.C praying to
quash the proceedings initiated in Spl. C.C. No.551/2015 on
the file of the XXIII Additional City Civil and Senior Judge
and Special Judge for P.C. Act, Bengaluru City, for offences
punishable under Sections 409 and 420 read with 120(B) of
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IPC and 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.28/2014 of SIT, Lokayukta, Bengaluru.
IN CRL.P.No.3575/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in
Spl.C.C. No.597/2015 on the file of the XXIII Additional City
Civil and Sessions Judge and Spl. Judge for Prevention of
Corruption Act, Bengaluru City, for offences punishable
under Sections 409 and 420 read with 120(B) of IPC and
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.23/2014 of SIT, Lokayukta, Bengaluru.
IN CRL.P.No.3576/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in
Spl.C.C. No.459/2016 on the file of the XXIII Additional City
Civil and Sessions Judge and Spl. Judge for Prevention of
Corruption Act, Bengaluru City, for offences punishable
under Sections 409 and 420 read with 120(B) of IPC and
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.18/2015 of SIT, Lokayukta, Bengaluru.
IN CRL.P.No.3577/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in Spl.
C.C. No.596/2015 on the file of the XXIII Additional City
Civil and Sessions Judge and Spl. Judge for Prevention of
Corruption Act, Bengaluru City, for offences punishable
under Sections 409 and 420 read with 120(B) of IPC and
Section 21 read with 4(1), 4(1A) of MMDR Act and Rule 165
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r/w 144 of the Karnataka Forest Rules, 1969, which is
arising out of Cr. No.22/2014 of Special Investigation Team,
Lokayukta, Bengaluru as 'an abuse of process of law'.
IN CRL.P.No.3899/2017:
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the proceedings initiated in Spl.
C.C. No. 467/2016 on the file of the XXIII Additional City
Civil and Sessions Judge and Spl. Judge for Prevention of
Corruption Act (CCH-24), Bengaluru City, for offences
punishable under Sections 409 and 420 read with 120(B) of
IPC and 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.15/2015 of Special
Investigation Team, Lokayukta, Bengaluru.
IN CRL.P.No.4012/2017:
This Criminal Petition is filed under Section 482
Section 482 Cr.P.C. praying to quash the proceedings
initiated in Spl. C.C. No. 488/2016 on the file of the XXIII
Additional City Civil and Sessions Judge and Spl. Judge for
Prevention of Corruption Act, Bengaluru City, for offences
punishable under Sections 409 and 420 read with 120(B) of
IPC and 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.14/2015 of Special
Investigation Team, Lokayukta, Bengaluru.
These Criminal Petitions having been heard and
Reserved for Orders on 09.11.2020 and coming on for
Pronouncement of Order, through Video Conference, this
day, the Court made the following:
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ORDER
A common petitioner in this batch of petitions has challenged the order of taking cognizance and issuance of summons to him by the Special Judge and has sought to quash the proceedings initiated against him. The details of the proceedings, rank of the petitioner and the gist of the allegations made against him are detailed in the table herebelow:-
Criminal Rank
Petition of the Crime Gist of the allegations
Spl.CC.No.
No. parties No.
3405/2017 A5 1/2014 471/2016 Petitioner being the partner of M/s. S.B. Minerals
entered into criminal conspiracy with other partners namely A6, A7 and A8 and the partners of M/s. Eagle Traders and Logistics namely A11 and A12 and by fabricating false documents purported to have been issued by the Department of Mines and Geology, Andhra Pradesh sold 19,855 MT of illegally extracted iron ore without payment of royalty and necessary charges and thereby caused loss of Rs.2,65,25,936/- to the State Exchequer and thereby 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.
3406/2017 A5 10/2014 19/2016 Petitioner being the partner of M/s. S.B. Minerals entered into criminal conspiracy with M/s. Eagle Traders and Logistics and M/s. Sri. Lakshmi Balaji Export and Import and in furtherance thereof transported 8,562 MT of iron ore without valid dispatch permit and without payment of royalty and thereby caused loss of Rs.1,02,13,989/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read 7 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. 3407/2017 A5 19/2014 12/2016 Petitioner being the proprietor of M/s. Vaishnavi Minerals and partner of M/s. S.B. Minerals sold 20,000 MT of iron ore in favour of M/s. Eagle Traders and Logistics without invoice and without obtaining the dispatch permit through M/s.Ramgopal and Vaishnavi Minerals, in the mining area. Out of the said quantity, 1809 MT of iron ore was illegally transported and exported and thereby caused loss of Rs.19,85,457.66/- 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. 3525/2017 A6 17/2015 469/2016 Petitioner being the proprietor of M/s. Vaishnavi Minerals and partner of M/s. S.B. Minerals, failed to produce invoice or permit for sale of 6,002 MT of iron ore by M/s. S.B. Minerals in favour of M/s.ILC Industries Ltd., and transported the same to Belekeri Port and thereby caused loss of Rs.72,42,658/- 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.
3526/2017 A12 24/2014 53/2016 Petitioner being the partner of M/s. S.B. Minerals and M/s. Ramgopal Minerals and proprietor of M/s.Vaishnavi Minerals and Director of M/s.Vaishnavi Anand Project Pvt. Limited, collected the sale proceeds of iron ore sold by M/s.S.B.Minerals to M/s. Ramgopal Minerals and then to M/s.Vaishnavi Minerals and thereafter to M/s. Eagle Traders and Logistics, without valid permit and without payment of royalty and credited the proceeds to his own bank account and thereby caused loss of Rs.1,04,72,820/- 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. 3527/2017 A9 28/2014 551/2015 Petitioner being the partner of M/s. S.B. Minerals and M/s. Ramgopal Minerals entered into criminal conspiracy with M/s. Eagle Traders and Logistics, 8 Bellary and M/s. Oriental Logistic Company, Hospete and M/s. Muneer Enterprises, Hospete and in furtherance thereof sold 18,206.27 MT of iron ore to M/s. Eagle Traders and Logistics and from M/s. Eagle Traders and Logistics to M/s.Oriental Logistics Company and from M/s.Oriental Logistics Company, the same was transported to Belekeri port and sold to M/s.Muneer Enterprises and thereby facilitated the export of the above iron ore and thereby making profit to the tune of Rs.3,13,66,926/- and equal loss 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(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969. 3575/2017 A2 23/2014 597/2015 Petitioner being the partner of M/s. S.B. Minerals entered into criminal conspiracy with accused Nos.1, 3, 4 and 5 and in furtherance thereof sold 10,146 MT iron ore to accused No.1-M/s.
Trimechs Industries through M/s. Vaishnavi Minerals of which the petitioner himself was the proprietor, without obtaining valid permit and facilitated the export thereof and thereby caused loss of Rs.1,22,03,534/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Sections 4(1) and 4(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969.
3576/2017 A4 18/2015 459/2016 Petitioner being the partner of M/s. S.B. Minerals and M/s. Ramgopal Minerals and proprietor of M/s.Vaishnavi Minerals, entered into criminal conspiracy with accused Nos.3, 5, 6 and 7 and in furtherance thereof sold 10,571.020 MT iron ore to accused No.3-Ghous Khan without obtaining prior permit and without payment of royalty and fees and thereby caused loss of Rs.1,61,24,782/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Sections 4(1) and 4(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969. 3577/2017 A5 22/2014 596/2015 Petitioner being the partner of M/s. S.B. Minerals entered into criminal conspiracy with other partners namely accused Nos.6, 7 and 8 and in furtherance thereof sold 25,111 MT iron ore without valid permit and without payment of royalty and other charges to the concerned 9 department to and accused Nos.3 and 4 of M/s. Eagle Traders and Logistics and thereby caused loss of Rs.3,83,03,720/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Sections 4(1) and 4(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969.
3899/2017 A4 15/2015 467/2016 Petitioner being the partner of M/s. S.B. Minerals sold illegally stacked 9501.710 MT iron ore without obtaining prior permit and without payment of royalty to M/s. Eagle Traders and Logistics and got credited the sale proceeds to the bank account of M/s. Vaishnavi Minerals, of which the petitioner is the proprietor and thereby caused loss of Rs.8,68,21,925/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Sections 4(1) and 4(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969.
4012/2017 A2 14/2015 488/2016 Petitioner being the partner of M/s. S.B. Minerals and M/s. Ramgopal Minerals and proprietor of M/s.Vaishnavi Minerals, Hospete illegally sold 16,987.69 MT of iron ore without prior permit and without payment of royalty and other charges to M/s. Eagle Traders & Logistics and thereby caused loss of Rs.1,53,26,395/- to the State Exchequer and thereby committed offences punishable under Sections 409, 420 read with 120B of IPC and under Section 21 read with Sections 4(1) and 4(1A) of MMDR Act and Rule 165 r/w 144 of the Karnataka Forest Rules, 1969.
2. Sri. Hashmath Pasha, learned Senior Counsel for petitioner has raised the following contentions:
(i) The Special Investigating Team (SIT) has no jurisdiction to investigate and to file the charge sheet against the petitioner in respect of the alleged offences.10
Referring to the orders of the Hon'ble Supreme Court in WP (Civil) No.562/2009 dated 07.09.2012, the learned Senior Counsel pointed out that by the said order, the CBI was directed to institute FIR(s) and to investigate the case(s) relating to illegal extraction of about 50.79 lakhs MT of iron ore from the forest areas of Karnataka during the period from 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. He further pointed out that the Hon'ble Supreme Court in the aforesaid petition, by order dated 16.09.2013, directed the State Government to take necessary action under the relevant laws as recommended by the CEC in its Report dated 05.09.2012, with regard to those exporters who have exported less than 50,000 MT of iron ore, which was illegally extracted from the forest area. Therefore, there was no scope for investigation by the SIT in respect of the mining of iron ore in a lease area which is not a forest area.
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(ii) The learned Special Judge has committed serious error in taking cognizance of the alleged offences based on the charge sheet submitted by the SIT. The learned Special Judge had no jurisdiction to take cognizance of the offences under the provisions of the MMDR Act in view of the bar contained in Section 22 of the MMDR Act. Primary offence alleged against the petitioner being punishable under the provisions of the MMDR Act, the other offences alleged in the charge sheet were inseparable and therefore, the summons issued to the petitioner to face trial for the offences punishable under the IPC and Karnataka Forest Rules are also vitiated and bad in law.
(iii) In view of the explanation appended to Section 23 of the MMDR Act, "firm" includes the Company. All the allegations leveled in the charge sheet are directed against the company, but the company having not been made an accused in any of the above cases, prosecution of the petitioner in his capacity as partner of the aforesaid firms, is legally untenable in view of the law laid down by the Hon'ble 12 Supreme Court in STANDARD CHARTERED BANK AND OTHERS Vs. DIRECTORATE OF ENFORCEMENT AND OTHERS reported in (2005) 4 SCC 530; SHARAD KUMAR SANGHI Vs. SANGITA RANE reported in (2015) 12 SCC 781 and ANEETA HADA Vs. GODFATHER TRAVELS & TOURS PRIVATE LIMITED reported in (2012) 5 SCC 661.
(iv) The allegations leveled in the charge sheet do not prima-facie make out the ingredients of the offences charged against the petitioner. No prima-facie material is produced to show that the petitioner herein was instrumental in the sale or transport of iron ore. On the other hand, the materials produced by the Investigating Agency disclose that the iron ore was extracted from the mining lease area. The alleged sale was not effected by the petitioner either as proprietor of M/s. Vaishnavi Minerals or as Director of M/s. Vaishnavi Anand Project Private Limited or as partner of M/s. S.B. Minerals.
(v) The allegations leveled against the petitioner are without any basis and no supporting material is 13 produced in support of the charges leveled against the petitioner. The charge sheet does not prima-facie disclose the material constituting the above offences so as to take cognizance and to issue summons to the petitioner. As a result, the impugned proceedings are liable to be quashed.
3. Meeting 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.
4. 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, 14 requisite complaint has been filed by the Authorized Officer before the Special Judge in all of the above cases except in Crl.P.No.3525/2017, and as such, there is substantial compliance of the requirements of Section 22 of the MMDR Act.
5. Regarding prosecution of the petitioner in his capacity as partner of the involved firms, the learned Special Public Prosecutor would submit that the allegations in the charge sheet are directed against the petitioner in his capacity as the partner of the involved firms as well as in his 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 petitioner to establish during trial that the alleged offences were committed by the company or the firm without his knowledge or that he exercised all due diligence to prevent the commission of such offences and therefore, the said contention does not furnish a ground to the petitioner to seek quashment of the proceedings. 15
6. Regarding the merits of the case, the learned Special Public Prosecutor would submit that the material collected by the Investigating Agency and the statement of witnesses would clearly disclose the transactions alleged against the petitioner and as such, there being prima-facie material to proceed against the petitioner, none of the contentions urged by the petitioner merit acceptance.
7. Considered the submissions and perused the record.
8. 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. 16 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.
9. 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 17 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:
"(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 18 (D.D.12.10.2017), no further order is necessary on the objection raised by the learned Senior Counsel.
10. 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 petitioner is concerned, a perusal of the order sheets produced by the petitioner indicate that on perusal of the FIR, Charge Sheet, Seizure mahazar and documents collected by the Investigating Officer, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioner. 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.
11. 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 19 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."
12 Learned Senior Counsel for the petitioner/accused has placed heavy reliance on the decision of the Hon'ble Apex Court in the case of STATE (NCT OF DELHI) vs. SANJAY, (2014) 9 SCC 772, in paragraph 70, wherein it is held as under:
" 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance 20 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)
13. 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 (except in Criminal Petition No. 3525/2017 (Special C.C.No.469/2016) 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 21 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?
14. Though it is vehemently argued by the learned Senior counsel for the petitioner/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 petitioner/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 petitioner/accused under IPC as well as 22 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.
15. 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 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 23 decides to initiate proceedings against the alleged offenders, that it can be positively stated that he has taken cognizance of the offence."
16. 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 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."
17. 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 24 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.
18. 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 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 petitioner that the report submitted by the SIT is without authority of law. Even otherwise, 25 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 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, 26 provided a complaint as required under Section 22 is filed by the authorized officer. If the argument of the learned Senior counsel for the petitioner 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 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.
19. In the light of these principles and for the reasons discussed above, and especially keeping in mind 27 the peculiarities of the present case and the special circumstances arising on account of the investigation report submitted by SIT, in my view, the course adopted by the learned Special Judge in considering the final report for issuing process to the petitioner cannot be faulted with. Likewise, as held in the above decisions, non recording the reasons by the Special Court while issuing summons to the petitioner also cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioner. 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 petitioner was notified of the offences at the earliest point of time before his 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.
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20. 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 petitioner.
21. The next contention urged by learned Senior counsel for the petitioner that the allegations leveled in the charge sheet are directed only against the firm and therefore the prosecution of the petitioner 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 petitioner is sought to be prosecuted not only as the partner of the involved firms, but also in his personal capacity.
22. As could be seen from the above narration, petitioner has been implicated in the alleged offences in his individual capacity and not as alter ego of the company. There are no allegations in the entire charge sheets that the 29 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 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.30
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."
23. In the instant cases, the allegations are directed only against the petitioner. The role played by the petitioner has been narrated. It is not the case of the respondent that the alleged acts were committed by the petitioner for and on behalf of the company. He is not prosecuted in his capacity as the partner of the firm because he is a partner. When the notion of the company 31 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 petitioner ingeniously has 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 petitioner that the prosecution launched against him is bad for non-prosecution of the firm or the company does not hold water. 32
24. 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, 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 petitioner in the alleged offences. Under the said circumstances, the criminal action having been rightly initiated against the petitioner, 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 petitioner, Criminal Petition Nos.3405/2017, 3406/2017, 3407/2017, 3526/2017, 3527/2017, 3575/2017, 3576/2017, 3577/2017, 3899/2017 and 4012/2017 are dismissed. 33
Criminal Petition No.3525/2017 is allowed-in-part. The cognizance taken by the learned Special Judge and the summons issued to the petitioner is set aside only insofar as the offences under the provisions of the MMDR Act are concerned. It is made clear that the trial against the petitioner (Accused No.6) in respect of the offences under IPC and the Karnataka Forest Rules, shall continue in accordance with law.
Liberty is reserved to the respondent to make necessary complaint in terms of Section 22 of the MMDR Act, if desired, in respect of the alleged offences punishable under the provisions of the MMDR Act.
In view of dismissal of main petitions, all pending I.As are also dismissed.
Sd/-
JUDGE SV/mn/-