Karnataka High Court
Mr. M. Abdul Zahid vs The State on 1 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1267, 2018 (4) AKR 781
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.52478 OF 2015 (GM-RES)
BETWEEN:
MR. M. ABDUL ZAHID
DIRECTOR,
VEEYEM PRIVATE LIMITED,
AGED ABOUT 52 YEARS,
S/O LATE ABDUL RAHIM,
R/AT ANJUMAN SHADI MAHAL,
NO.1 & 4, ARVIND NAGAR,
HOSPET,
ALSO R/AT APARTMENT NO.988/2615,
ELEGANT DAVIS APARTMENT,
RICHARD TOWN,
BENGALURU. ... PETITIONER
(BY SRI: MURTHY D NAIK, ADVOCATE)
AND:
THE STATE
REPRESENTED BY
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTHA,
SPECIAL INVESTIGATION TEAM,
BELLARY MAIN ROAD, HEBBAL
BENGALURU-560 024. ... RESPONDENT
(BY SRI: A.S.PONNANNA, AAG A/W
SRI:P GOVINDAN, SPL. PP)
2
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C., PRAYING TO QUASH FIR NO.30/2015 DT.28.9.2015
VIDE ANNX-A FILED FOR THE OFFENCES U/S 379, 409, 420,
447, 468 & 471 R/W 120-B OF IPC AND SECTIONS 13(2) R/W
13(1)(d) OF THE P.C.ACT AND SECTIONS 21 & 23 R/W 4(1),
R4(1a) OF THE MMDR ACT, 1957, REGISTERED BY THE
RESPONDENT SIT AND WHICH IS FILED AND PENDING BEFORE
THE 23RD ADDL. CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTION OF CORRUPTION ACT CASES,
BENGALURU.
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.30/2015 registered by the respondent-SIT is sought to be quashed on two grounds.
(i) First, the SIT has no jurisdiction to investigate into the alleged illegalities pertaining to the illegal mining and transportation of the quantity of less than 50,000 MT.
(ii) Second, in respect of the very same allegations, the CBI had conducted an investigation in FIR No.RC 3 18(A)/2011 wherein the petitioner and his brother M.Abdul Aleem have been cited as two of the witnesses Nos.43 and 44. After investigation, a preliminary charge sheet and two supplementary charge sheets came to be laid against the accused therein. In the said proceedings, there were no allegations of any illegalities by the instant petitioner. Therefore, there could not have been investigation in respect of the same offences by two different agencies.
2. Dilating on the first contention, learned counsel for the petitioner 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 in respect of 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 to disband the said 4 investigation team and entrusted the matter to the Hon'ble Lokayukta for further investigation including the issue of illegal export of iron ore less than 50,000 MT. The learned counsel has also referred to the statement of objections filed by the respondent wherein it is stated in paragraph-1 that in view of the orders of the Hon'ble Supreme Court directing the Government of Karnataka to investigate into the allegations of illegalities committed in export of iron ore of less than 50,000 MT, the Government of Karnataka had created a Special Investigation Team. Thus it is contended that SIT has no jurisdiction to investigate into the illegalities pertaining to illegal mining and transportation of the quantity of more than 50,000 MT.
3. On the second point, the learned counsel has emphasized on the following portion of the column No.9 of the FIR which reads as under:
"During the period from October 2009 to May 2010, about 2,15,838 MT of iron ore was extracted without obtaining valid permits from this mine and another 9,83,162 MT was 5 similarly illegally extracted by encroaching into a neighbouring mining lease owned by M/s.Dalmia Mines (ML 2010). Of this, during November to December 2009, 25,682 MT was dispatched to M/s. SMSK Enterprises belonging to Sri. M.A.Zahid, 42,612 MT to M/s. S.B. Logistics, 989 MT to M/s. TBS Logistics and 46,720 MT to M/s. Devi Enterprises belonging to Shri. K.M. Ali Khan. Further during January and February 2010, 9669.98 MT was dispatched to M/s.
Satavahana Ispat Ltd. M/s. Devi Enterprises received payment of Rs. 6,37,50,000/- from M/s. Satavahana Ispat Ltd. for the sale of 9,669.98 MT. Further during June 2010, about 1,07,070 MT was extracted by encroaching into the mining area belonging to M/s. Dalmia Mines (ML No. 2010). The dispatches made to M/s. SMSK Enterprises, M/s. S.B. Logistics and M/s. TBS Logistics were made through M/s. Eagle Traders and Logistics for which payment was received by the latter in its Axis Bank a/c No. 267010200007740 during the same period. It is also revealed that M/s. Devi Enterprises purchased weigh bridges from M/s. Avery India Pvt. Ltd. and M/s. Essae Digitronic and installed the same in this mine. The payment 6 for the same was made through its bank account held with ING Vysya Bank."
4. Based on the above averments, it is submitted that since common investigation was undertaken by the respondent, the total quantity of the subject matter of all the investigations put together would exceed 50,000 MT. Therefore, the SIT has no jurisdiction to investigate into the matter. In support of this argument, the learned counsel has relied on a decision of the Hon'ble Supreme Court of India in the case of 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 investigated into the alleged complaint lodged by the respondent.
5. Further the learned counsel has referred to paragraph 15 of the decision of the Hon'ble Supreme Court in SAMAJ PARIVARTANA SAMUDAYA and Ors. vs. STATE OF KARNATAKA and Ors ((2013) 8 SCC 154), which reads as under: 7
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.
6. 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 petitioner pursuant to FIR in Cr.No.30/2015 is liable to be quashed.
7. 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 8 the directions of 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 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.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 9 the Hon'ble Karnataka Lokayukta for further investigation by the Lokayuktha Police and to proceed with criminal prosecutions if necessary."
8. Further the learned Additional Advocate General has drawn my attention to Hon'ble Lokayukta's report dated 27.07.2011 and would contend that the present case is registered on the basis of Chapter IX of the Lokayukta report Part II which does not stipulate any bar on SIT to investigate cases for more than 50,000 MT and therefore, there is no illegality whatsoever in the investigation undertaken by the Lokayukta based on which the FIR has been registered against the petitioner. Hence, the contention urged by the petitioner in this regard cannot be sustained.
9. Disputing the contentions regarding overlapping of investigation by the CBI and the Karnataka Lokayukta, the learned Additional Advocate General would submit that the investigation in RC 18(A)/2011 was undertaken by the CBI in relation to the illegalities committed in respect of mining lease ML No.988/2615 over an extent of 20.23 ha., in NEB forest 10 range of Sandur Taluk and in the said case, two charge-sheet were filed in which the present petitioner and his brother Sri.M.Abdul Aleem, on behalf of M/s.VEEYEM Pvt. Ltd., were cited as witnesses, whereas the instant case pertains to the illegalities committed by VEEYEM Mines of which the petitioner is the representative. Therefore, the contention urged by the petitioner that in respect of the same subject matter, two agencies have conducted investigation is palpably false.
10. 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 petitioner prima facie constitute the ingredients of the offences alleged against the petitioner in the FIR?
11(i) Point No.1:11
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.
(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 12 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 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 13 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 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'.14
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.
12. 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 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- 15 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.
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 16 FIR and investigate into the alleged offences is liable to be rejected.
13. 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 October 2009 to May 2010, about 2,15,838 MT of iron ore was extracted without obtaining valid permits from the mine and another 9,83,162 MT was illegally extracted by encroaching into a neighboring mining lease owned by M/s.Dalmia Mines. Of this, during November to December 2009, 25,682 MT was dispatched to M/s.SMSK Enterprises belonging to Shri M.A.Zahid, 42,612 MT to M/s.S.B.Logistics, 989 MT to M/s.TBS Logistics and 46,720 MT to M/s.Devi Enterprises belonging to Shri K.M.Ali Khan. Further during January and February 2010, 9669.98 MT was dispatched 17 to M/s.Satavahana Ispat Ltd. During June 2010, about 1,07,070 MT was extracted by encroaching into the mining area belonging to M/s.Dalmia Mines. There are also allegations that M/s.VEEYEM Private Ltd., entered into illegal agreement of extraction and sale of iron ore with M/s.Devi Enterprises. As a result of this agreement, the mine belonging to M/s.VEEYEM Private Limited was virtually taken over by the said mining group leading to large scale illegal extraction, transportation and trading of iron ore of about 3,22,908 MT 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.
14. The contention of the petitioner that the investigation in FIR No.30/2015 is overlapping with the investigation conducted by the CBI in RC 18(A)/2011 also does not merit acceptance. As rightly submitted by the learned 18 Additional Advocate General, the copy of the FIR and the charge- sheets in the RC 18(A)/2011 indicate that the CBI had investigated into the allegations relating to the illegal mining and transportation in relation to the illegalities committed in respect of mining lease ML No.988/2615 over an extent of 20.23 ha., in NEB forest range of Sandur Taluk and in the said case, two charge-sheet were filed in which the present petitioner and his brother Sri.M.Abdul Aleem, on behalf of M/s.VEEYEM Pvt. Ltd., were cited as witnesses, whereas the instant case pertains to the illegalities committed by VEEYEM Mines of which the petitioner is the representative. Therefore, even on this score, the petitioner cannot seek to scuttle the investigation into the alleged offences arising out of FIR in Cr.No.30/2015.
15. 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 19 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.
16. 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 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 20 case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."
17. 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 charge-sheets 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. Petitioner is not shown as accused in the FIR. The exact role played by the petitioner could be ascertained only after investigation. If the investigation leads to the final opinion that the alleged offences 21 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.30/2015 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.