Karnataka High Court
N Mruthunjaya @ Muthu vs State Represented By Joint Director on 3 April, 2013
Equivalent citations: 2013 (2) AKR 767
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 03RD DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.3575 of 2010
CONNECTED WITH
CRIMINAL PETITION No.3576 of 2010
CRIMINAL PETITION No.3577 of 2010
CRIMINAL PETITION No.3578 of 2010
BETWEEN:
N. Mruthunjaya @ Muthu,
Son of Sri. M.R. Nanjundappa,
49 years, No.12,
Mother Teresa Road,
Near COD Police Quarters,
Austin Town,
Bangalore - 560 0407. ...PETITIONER
[common]
(By Shri. S.G. Bhagwan, Advocate)
2
AND:
"State represented by
Joint Director General of
Foreign Trade,
Bangalore."
(As stated in the complaint) ...RESPONDENT
[common]
(By Shri. R. Sharath Chandra, Central Government Counsel and
Shri. Ajoy Kumar Patil, Central Government Counsel)
*****
IN CRL.P.NO.3575 OF 2010
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings including the order dated 12.7.2010 in
C.C.No.1221/2003 pending in the Special Court (Economic
Offences), Bangalore.
IN CRL.P.NO.3576 OF 2010
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings including the order dated 12.7.2010 in
C.C.No.1222/2003 on the file of the Presiding Officer and
Special Court (Economic Offences), Bangalore.
IN CRL.P.NO.3577 OF 2010
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings including the order dated 12.7.2010 in
C.C.No.1223/2003 on the file of the Presiding Officer and
Special Court (Economic Offences), Bangalore.
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IN CRL.P.NO.3578 OF 2010
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings including the order dated 12.7.2010 in
C.C.No.1224/2003 on the file of the Presiding Officer and
Special Court (Economic Offences), Bangalore.
These petitions are coming on for Admission this day,
the court made the following:
ORDER
These petitions coming on for admission, are considered for final disposal having regard to the similar issue involved. The background to these petitions are as follows:
2. The petitioner is common. The petitioner is said to be the accused in pending cases before the Special Court for Economic Offences, Bangalore, and the complainant, namely, the Joint Director General of Foreign Trade has alleged offences punishable under Sections 420, 468, 471 and Section 120-B of the Indian Penal Code (hereinafter referred to as 'the IPC' for brevity) read with Section 5 of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as 'the Imports & 4 Exports Act', for brevity). The complaint was lodged as on 28.10.2003 and the court had taken cognizance on the very day and had issued process against the petitioner. The petitioner has appeared before the court below and has obtained bail. The proceedings are at the stage of evidence before the trial court and it is then that the present petitions are filed. The petitions proceed primarily on the ground that the complainant who is said to be the Joint Director General of Foreign Trade, is not duly authorised to lodge any such complaint. In this regard, Section 6 of the Imports & Exports Act is cited, which reads as follows:
"6. Cognizance of offences - No court shall take cognizance of any offence punishable under section 5 except upon complaint in writing made by an officer authorised in this behalf by the Central Government by general or special order and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any such offence"5
Therefore, the petitioner had filed an application seeking a direction to the complainant to produce the original authorization referred to by him in the complaint. The respondent in response to the same, had filed a memo to the following effect:
".....Now the Complainant represented by P.K. Bhowmick, Deputy Director General of Foreign Trade, who is authorised by the previous officer. The said officer is well conversant with the facts of the case and is ready to give evidence. As such this Hon'ble Court may be pleased to permit the Complainant to give its evidence through the said P.K. Bhowmick Deputy Director, General of Foreign Trade, in the ends of justice."
However, the petitioner raised a serious objection as to the same establishing the authority of the complainant to present the complaint in terms of Section 6. Thereafter the respondent had produced the order bearing No.98/85-88, New 6 Delhi, dated 29.02.1988, which is at Document No.5 to the petition and which reads as follows:
"In exercise of the powers, conferred by section 6 of the Imports and Exports (Control) Act, 1947 (18 of 1947) and in supersession of the Ministry of Commerce Order No.10/65 dated the 1st December, 1965, the Central Government hereby authorizes the Joint Chief Controllers of Imports and Exports, the Deputy Chief Controllers of Imports and Exports, the Customs Collectors and the Officers of Customs under the Customs Act, 1962 (52 of 1962), the Development Commissioner for Iron and Steel, the Deputy Development Commissioner for Iron and Steel and the Superintendents of Police in the Economic Offences Wing of the Central Bureau of Investigation to make complaints in writing in Courts in respect of any offence punishable under section 5 of the said Act.
Sd/-
B.L. Misra, Chief Controller of Imports & Exports"7
The trial court, on the basis of the above controversy, has passed an order dated 12-07-2010, which is under challenge in the present petition.
3. The learned counsel for the petitioner Shri S.G. Bhagavan contends that Section 6 of the Imports & Exports Act inhibits the court from taking cognizance of any offence punishable under Section 5 except upon complaint in writing made by an officer duly authorised in this behalf by the Central Government, by general or special order. Therefore, in the absence of an authorization to file a complaint to any officer by the Central Government, the court is prohibited from taking cognizance of the alleged offences, as there is no authorization by the Central Government placed on record. The documents that are produced cannot be construed as having emanated from the Central Government in the absence of anything to reflect that it is in compliance with the mandate under Article 77 of the Constitution of India. Therefore, the Court has acted without 8 jurisdiction in taking cognizance of the offences alleged, without there being an authorised complainant before the court.
Elaborating on this, the learned counsel would submit that the Central Government means the President of India, as defined under Section 3(8)(b) of the General Clauses Act, 1897 and the Executive power of the Union - Central Government, vests in the President of India under Article 53(1) of the Constitution of India. Any order issued by the President shall comply with the requirements of Article 77 of the Constitution of India to raise the presumption that it is issued by him and not otherwise. The signatory to the complaint is not an officer envisaged in Document No.4 and also, the same is not in compliance with the requirements of the law envisaged under Article 77 of the Constitution of India. The assumption made by the court below is therefore without basis and the continuation of the proceedings before the court below would tantamount to an abuse of process and hence, would submit that 9 in the light of the decision of the Apex Court in a recent judgment in the case of Jaipur Development Authority & Others. Vs. Vijay Kumar Data & Another (2012 AIR SCW 1140), the Apex Court, in so many words has declared that all executive actions of the Government of India and the Government of the State are required to be taken in the name of the President or the Governor of the state concerned as the case may be. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in the rules to be made by the President or the Governor, as the case may be. With reference to Article 77(3) and Article 166, the Apex Court has held that, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of the letter dated 6.12.2001 which was the subject matter before the Apex Court would show that 10 it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. The letter merely speaking of the discussion made by the Committee and the decision taken by it, cannot be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution. The learned counsel therefore drawing sustenance on the said judgment, would point out that the so called authorization in the present case by any stretch of imagination be said to have emanated from the Government of India and therefore, there is no valid authorization to enable the complainant to file the complaint.
4. On the other hand, the learned Central Government counsel would submit that the petitions are misconceived. Firstly, the petitioner has belatedly raised this objection as regards want of authorization. The petitioner is guilty of serious offences, whereby on the basis of forged documents, the petitioner has sold material which was meant for export and has 11 not exported the goods which were meant to have been exported, under several documents that were purchased by him. It is in that background that proceedings have been initiated against the petitioner. The complaint was of the year 2003 and it is in the year 2010 that a preliminary objection as regards the want of authorization of the complainant is lodged. Apart from the mala fides that are apparent in this regard, the very contention raised is also not tenable. It is pointed out that insofar as the contention that the complainant does not fall within the named officers as per the authorization that is relied upon at Document No.5 in the petition is concerned, the very first sentence in the complaint would indicate that the Joint Director General of Foreign Trade was formerly known as the Chief Controller of Imports and Exports. Therefore, the authorization which does indicate that the Joint Chief Controller of Imports and Exports was competent to lodge a complaint, would take away any such objection as to the complainant not being the designated officer contemplated 12 under the said authorization. It is secondly sought to be pointed out that it is not always necessary that the Union Government itself should issue such an order authorizing the competent officers who could bring a complaint under Section 5 of the said Act. In this regard, he would place reliance on a Constitution Bench judgment of the Apex Court in the case of A. Sanjeevi Naidu, etc. vs. State of Madras and Another (1970 (1) SCC 443)) and would point out that the question therein was with regard to the validity of a draft scheme under the Motor Vehicles Act which was not framed by the State Government, but by the Secretary to the Government in the Industries, Labour and Housing Department, acting in pursuance of the powers conferred by him under Rule 23-A of the Madras Government Business Rules and in this regard, it was urged that the Parliament had conferred power under Section 68(C) of the Motor Vehicles Act to a designated authority. That power could be exercised only by that authority and by no one else. The authority concerned was the State Government. The State 13 Government could not have delegated its statutory functions to any one else. The Government means the Governor sided and advised by his Ministers. Therefore, the required opinion should have been formed by the Minister to whom the business had been allocated by the Rules. It was also urged that if the functions of the Government can be discharged by any one else, then the doctrine of ministerial responsibility which is the very essence of the cabinet form of Government disappears; such a situation is impermissible under our Constitution.
Negating this argument, the Supreme Court has held that under our Constitution, the Governor is essentially a constitutional head. The administration of the State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty, the Constitution has authorised the Governor under sub-article (3) of the Article 166 to make rules 14 for the more convenient transaction of the business of the Government of the State and for the allocation amongst its Ministers. All matters, excepting those in which Governor is required to act in his discretion, have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules, on the advice of his Council of Ministers, for more convenient transaction of business. He cannot only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.
The cabinet is responsible to the Legislature for every action taken in any of the Ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Council of Ministers 15 to discharge all or any of the Governmental functions. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day-to-day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry 16 regarding the disposal of Government business, either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.
(Emphasis supplied)
5. The learned Central Government counsel Shri Ajoy Kumar Patil would contend that in the present case on hand, the competent authority was not acting as a delegate of the Government but was acting as a limb of the Government, as has been expressed in the Apex Court. It is further pointed out that Article 77 is analogous to Article 166. Therefore, the decision and the ratio laid down in Sanjeevi Naidu's case would apply on all fours to the present case on hand. It is further pointed out that the text of the order at Document No.5, to the petition, would indicate that the competent authority is merely declaring 17 the authorization of the Central Government acting as the limb of the Central Government and the competent authority is exercising statutory power and it is not an executive act on the part of the competent authority. Therefore, to imply that any such action ought to have emanated from the Central Government through the President is therefore, misconceived and would not be applicable to the present case on hand.
Though the Imports and Exports Act has been repealed, he would submit that Section 20 of the Foreign Trade Development Regulation Act, 1992, would save the action initiated in terms of Section 6 of the Imports and Exports Act and hence, there is no infirmity insofar as the proceedings that are on before the court below and the present endeavour of the petitioner is merely to scuttle the proceedings and hence, the petition may be dismissed with exemplary costs on the petitioner.
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6. Given the above circumstances, the question as already pointed out is, whether the validity of the authorization in favour of the complainant could be held to be invalid on the argument put forth by the counsel for the petitioner. As rightly pointed out by the learned counsel Shri Patil, the authorization issued is in exercise of statutory power and is not an executive act which requires to be done in the name of the Government. The decision that is relied upon by the learned counsel for the petitioner in the case of Jaipur Development Authority may not be applicable to the case on hand. The facts of that case were that by a notification dated 13.05.1960 issued under Section 4 of the Rajasthan Land Acquisition Act, 1953, the State Government proposed the acquisition of vast extents of land for planned development of Jaipur city. The land was to be utilized for purposes mentioned therein. A declaration under Section 6 of the Land Acquisition Act was issued on 3.5.1961 and a notice was issued to the land owners on 18.07.1961 under Section 9(1) and (3). Initially, 65 kathedars filed claims for 19 compensation but this figure swelled to more than 137 because, those who had purchased land from kathedars after the publication of the notification issued under Section 4 and their nominees / sub-nominees also filed claims for compensation. The Land Acquisition Officer, Jaipur, passed an unusual award whereby he not only determined the amount of compensation payable to the landowners and the beneficiaries of illegal transfers, but also directed allotment of plots measuring 1000 to 2000 square yards to the owners, their transferees and nominees/sub-nominees out of the acquired land. After the award was passed, execution applications were filed and the applicants succeeded in getting delivery of possession as such beneficiaries. A revision was filed against the order of the Executing Court which was dismissed by the High Court and in that sense, the order passed by the Executing Court became final. However, in view of a judgment of the Supreme Court in the case of Jaipur Development Authority vs. Radhey Shyam (1994) 4 SCC 370, all such orders were deemed to have become 20 a nullity. In the meanwhile, 12 of the awardees filed applications for enhancement of compensation. The District Judge accepted their claim. Simultaneously, an objection by the State Government that the Land Acquisition Officer did not have jurisdiction to allot the land in lieu of or in addition to the monetary compensation was rejected. Appeals were filed against that judgment which were disposed of by the High Court on the basis of a compromise arrived at. The State Government deliberately omitted to challenge the direction contained in the award of the Land Acquisition Officer. However, when large number of execution applications were filed by the beneficiaries, the functionaries of the State and the Trust became alive to the grave consequences which would have ensued by implementing the direction issued by the Land Acquisition Officer and the matters were taken up again before the High Court. During the pendency of the litigation, another attempt was made by the functionaries of the State to confer legitimacy on the illegal transactions involving purchase of the 21 acquired land. The then Minister of Urban Development of Housing, who was also Chairman of the Trust, constituted a Committee for suggesting the methodology for allotment of land in terms of the directions given by the Land Acquisition Officer. The members of the Committee obliged their master i.e. the Minister and recommended that land be allotted to the beneficiaries of illegal transaction at the rate of Rs.8/- per square yard. Thereafter, a circular disguised as a policy decision was issued in 1978 for allotment of land to sub- awardees and their nominees / sub-nominees at the rate of Rs.8/- per square yard. In furtherance of the so called policy decision, draw of lots was held for allotment of plots to the awardees and beneficiaries of illegal transfers of the acquired land and those who were successful were allotted plots. This exercise did not satisfy all and those who could not get plots filed writ petitions questioning the draw of lots. The Division Bench of the High Court held that the directions given by the Land Acquisition Officer and the Minister for allotment of plots 22 were ex facie illegal and had the effect of defeating the public purpose for which the land was acquired. Notwithstanding this, the High Court granted relief to the writ petitioners on the ground of violation of the equality clause enshrined in Article 14 of the Constitution and directed that they should also be allotted plots as per their entitlement. In the meanwhile, the Lokayukta of Rajasthan made inquiry under Section 10 of the Rajasthan Lokayukta and Up-Lokayuktas Act, 1973 in the matter of illegal allotments of plots and submitted a report. No tangible action was taken on the report though it was an adverse report. The question whether the Land Acquisition Officer could issue directions for allotment of land to awardees having been considered by the Apex Court in Radhey Shyam case. The above case ultimately was before the Apex Court.
In any event, the above was the broad background in which the matter was before the Supreme Court and it is in those serious circumstances that court was required to consider 23 whether the direction issued by the Land Acquisition Officer on the basis of a decision taken by a Committee which is referred to hereinabove was in order and whether it could be said to be in accordance with the Constitution of India. It is in that context that the Supreme Court has pointed out that the manner in which executive action of the Union Government could be discharged. The same cannot be pressed into service in the present case on hand.
7. Therefore, the argument canvassed by the learned Central Government counsel would clearly cover the case on hand, as the exercise of power by the competent authority is as a limb of the Union Government and not as a delegate thereof. The authorization in favour of the complainant to bring the complaint is perfectly in order and there is no ground for interference. Consequently, the petitions are rejected.
Having regard to the circumstances of the case, costs of Rs.5,000/- is imposed in each of these petitions. The said costs 24 of Rs.5,000/- in each of these petitions shall be deposited within two weeks hence before the trial court, favouring the respondent.
Sd/-
JUDGE KS