Karnataka High Court
Mr B S Puttaraju vs State Of Karnataka on 1 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1247
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
CRIMINAL PETITION No.564 OF 2017
c/w.
CRIMINAL PETITION No.847 OF 2017
CRIMINAL PETITION No.564 OF 2017
BETWEEN:
1. MR B S PUTTARAJU
SON OF SRI SHIVANNA
AGED 53 YEARS,
DIRECTOR
MATHA MINERALS LTD
NO.13, 60 FEET ROAD,
SANGOLLIRAYANNA ROAD
AMARJYOTHI NAGAR
BANGALORE-560 040
2. DR ARUN
SON OF SRI V SOMANNA
AGED ABOUT 35 YEARS
EX DIRECTOR
MATHA MINERAL LTD
NO.191, 13TH CROSS,
RMV 2ND STAGE
DOLLARS COLONY
BANGALORE-560 094 ... PETITIONERS
(BY SRI: L M CHIDANANDAYYA, ADVOCATE A/W
SMT: KUSUMA R.PRASAD, ADVOCATE)
AND
STATE OF KARNATAKA
2
REPRESENTED BY ITS
DEPUTY SUPERINTENDENT OF POLICE
SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA, HEBBAL
BENGALURU CITY
BENGALURU-560 064 ... RESPONDENT
(BY SRI: A.S.PONNANNA, AAG A/W
SRI:P GOVINDAN SPL PP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE FIR AND COMPLAINT ON THE FILE OF 23RD ADDL. CITY CIVIL
AND S.J., BENGALURU, IN SO FAR AS THE PETR. IS CONCERNED IN
CR.NO.33/2015 FILED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 379,409,420,447 R/W 120(B) OF IPC, U/S 13(2) R/W
13(1)(d) OF P.C.ACT, 1988 AND U/S 21,23 R/W 4(1), 4(1)(A) OF
MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT, 1957.
CRIMINAL PETITION No.847 OF 2017
BETWEEN
DR NAVEEN B S
S/O SOMANNA V
AGE:38 YEARS
OCC:PHYSICIAN
R/AT NO.608, A BLOCK
BRIGADE GATEWAY
DR.RAJKUMAR ROAD
SUBRAMANYANAGAR
BENGALURU-560 085 ... PETITIONER
(BY SRI: K V THIMMAIAH, ADVOCATE)
AND
STATE OF KARNATAKA
BY SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA
HEBBAL
3
BENGALURU CITY
BENGALURU -560 064
REPRESENTED BY
THE SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001
... RESPONDENT
(BY SRI: A.S.PONNANNA, AAG A/W
SRI:P GOVINDAN SPL PP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
FIR DATED 30.11.2015 IN CR.NO.33/2015 REGISTERED ON THE FILE
OF SPECIAL INVESTIGATION TEAM, KARNATAKA LOKAYUKTA,
BANGALORE FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
379,409,420,447 R/W 120B OF IPC AND SEC.13(2) R/W 13(1)(d) OF
PC ACT AND SEC.21,23 R/W 4(1),4(1)(A) OF MMDR ACT, (PENDING
ON THE FILE OF XXIII ADDL. CITY CIVIL AND S.J., BANGALORE) IN SO
FAR AS PETITIONER IS CONCERNED.
THESE CRIMINAL PETITIONS 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 these petitions, the FIR in Crime No.33/2015 registered by the respondent-Special Investigation Team ("SIT" for short) for the offences punishable under sections 379, 409, 420, 447 read with section 120B of Indian Penal Code and under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act 4 1988 and under sections 21, 23 read with sections 4(1), 4(1)(A) of Mines and Minerals (Development and Regulation) Act 1957 is sought to be quashed.
2. Learned counsel for the petitioners submits that the respondent registered the FIR in Crime No.33/2015 after 15 years of rectification of sketch of ML.No.1975 in favour of accused No.4 Sri.B.R.Amar Singh and after 13 years of transfer of mining lease in favour of M/s.Matha Minerals Pvt. Ltd. at the instance of accused No.4 Sri.B.R.Amar Singh without jurisdiction. He further submits that Chapter XX pertaining to M/s.Matha Minerals Pvt. Ltd., was not referred for investigation by SIT by the Government Order dated 22.11.2013. The report pertains to violation of section 5(1) of MMDR Act. No complaint can be filed before the police for undertaking investigation for violation of section 5(1) of the MMDR Act. The offence, if any, under the provisions of the MMDR Act can be presented before the learned Magistrate under section 200 of the Code.
3. It is further contended that the SIT has no jurisdiction to investigate into the alleged illegalities pertaining 5 to the illegal mining and transportation of the quantity of less than 50,000 MT.
4. It is also contended that petitioners in both the petitions are the Directors of M/s.Matha Minerals Private Limited. SIT was constituted to investigate only those matters which are referred by the State Government. The matter pertaining to M/s.Matha Minerals Private Limited is not one of the subjects referred by the State Government for investigation by SIT. Hence, the SIT has no jurisdiction to register FIR against the petitioners.
5. Dilating on the contention, learned counsel for the petitioners has referred to the proceedings of the Government of Karnataka dated 22.11.2013 wherein it is specifically mentioned that pursuant to the orders of the Hon'ble Supreme Court dated 16.09.2013 in Interlocutory Application No. 189 of WP No. 562/2009, the CBI was permitted to refer the matters with reference to exporters who had exported less than 50,000 MT without valid permits to the Government of Karnataka for taking further necessary action. Accordingly, the Government decided 6 to disband the said investigation team and entrust the investigation to the Hon'ble Lokayukta for further investigation including the issue of illegal export of iron ore less than 50,000 MT.
6. It is the further submission of the learned counsel for the petitioners that since common investigation was undertaken, the total quantity put together would exceed 50,000 MT. Therefore, the SIT having not been empowered to investigate into the alleged offences, investigation conducted by the SIT is illegal on that score. In support of his argument, the learned counsel has relied on a decision of the Hon'ble Supreme Court of India in MS MAYAWATHI vs UNION OF INDIA and Others ((2012) 8 SCC 106) and with reference to paragraph 30, would submit that the SIT having been specifically constituted to investigate into the offences not exceeding 50,000 MT, ought not to have embarked upon investigation exceeding the limits.
7. Further the learned counsel has referred to paragraph 15 of the decision of the Hon'ble Supreme Court in 7 SAMAJ PARIVARTANA SAMUDAYA and Ors. vs. STATE OF KARNATAKA and Ors ((2013) 8 SCC 154), which reads as under:
15. The first is with regard to investigations in respect of alleged criminal offences by lessees which have been ordered by this Court to be investigated by CBI. As investigations have already been ordered by this Court and such investigations would necessarily have to follow the procedure prescribed by law we do not wish to delve upon the same save and except to say that each of such investigation shall be brought to its logical conclusion in accordance with law and any aggrieved party would be entitled to avail of all legal remedies as may be available.
8. Based on these materials, it is contended that the registration of the FIR and the consequent investigation undertaken by the respondent SIT is illegal, without authority of law and an abuse of the process of court and therefore, the action initiated against petitioners pursuant to FIR in Cr.No.33/2015 is liable to be quashed.
8
9. Refuting the above contentions, learned Additional Advocate General at the outset would submit that the SIT had undertaken investigation in three categories of cases. In the first set of cases the investigation was undertaken pursuant to the directions issued by the Hon'ble Supreme Court of India. The Hon'ble Supreme Court had specifically directed the SIT to investigate into the allegations pertaining to the illegal export of iron ore of the quantity of less than 50,000 MT. In the instant case, the allegations are arising out of the report submitted by the Karnataka Lokayukta. The Government Order dated 22.11.2013 referred to by the learned counsel does not specify the limits in terms of quantity. The investigation in the instant case is undertaken by the Lokayukta pursuant to the notification dated 22.11.2013 and the subsequent notification dated 06.06.2017. The notification dated 22.11.2013 reads as under:
"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. 9 562/2009, The Government in Suppression of the earlier orders No. CI 282 MMM 2011 dated 09.01.2013 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 Lokayuktha Police and to proceed with criminal prosecutions if necessary."
10. Further the learned Additional Advocate General has contended that the petitioners being the Directors of M/s.Matha Minerals Pvt. Ltd., have signed the transfer indenture on behalf of the Company which clearly shows that petitioners are not only a nominal Directors, but participated in the day today affairs of the Company and hence, prosecution of the petitioners is justified.
11. It is further argued that SIT, Karnataka Lokayuktha is declared as Police Station vide notification No.HD 129 POP 2014, Bangalore dated 29.5.2014 issued under section 2(2) of the Cr.P.C. and thereby, SIT is authorized to investigate the cases pertaining to illegal mining of "minerals" and "minor minerals" having jurisdiction throughout the State of Karnataka. 10
12. In the light of the above contentions, the points that arise for consideration are as under:
(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 petitioners prima facie constitute the ingredients of the offences alleged against the petitioners in the FIR?
13(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 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 18.08.2011.11
(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.
(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 12 MT 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 MT 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 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 13 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 petitioners herein find mention in the said Annexure-'A'.
Therefore, the argument of the learned counsel for the petitioners 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.
14. 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 14 proceedings and FIR in Crime No.32/2014. This court vide order 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 15 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.
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 petitioners that the SIT has no jurisdiction to register the FIR and investigate into the alleged offences is liable to be rejected.
15. 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 that during the period from 2004- 2005 to 2009-2010, about 1,79,219 MT of iron ore was 16 extracted without obtaining valid permits, causing huge loss to the State Government Exchequer. Therefore, 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.
16. 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 17 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.
17. 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 quashed, the test to be applied by the court is as to whether the uncontroversial 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."
18. 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 18 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 charge-sheet 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 petitioners if the alleged violations are investigated by the respondent. Petitioners are not shown as accused in the FIR. The exact role played by the petitioners could be ascertained only after investigation. If the investigation leads to the final opinion that the alleged offences are committed without the knowledge and connivance of the petitioners, the charges against the petitioners would naturally be dropped. Therefore, the apprehension of the petitioners that the proceeding initiated in Cr.No.33/2015 has resulted in abuse of process of court is ill-founded. The petitioners have failed to make out any justifiable ground to quash the FIR and the 19 consequent investigation. As a result, the petitions are liable to be dismissed.
Accordingly, the petitions are hereby dismissed.
Sd/-
JUDGE Bss.