Karnataka High Court
Sri Muthappa P vs The State Of Karnataka on 1 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1246
Author: John Michael Cunha
Bench: John Michael Cunha
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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.8000 OF 2017
C/W
CRIMINAL PETITION NO.439 OF 2018
CRIMINAL PETITION NO.8000 OF 2017
BETWEEN:
SRI MUTHAPPA P
AGE MAJOR,
S/O PALAYYA, GEOLOGIST,
KOPPAL, BELGAUM DISTRICT. ... PETITIONER
(BY SRI: S N HATTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
SUPERINTENDENT OF POLICE,
SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
UAS BUILDING, VETERINARY COLLEGE,
HEBBAL, BANGALORE-20. ... RESPONDENT
(BY SRI: A.S.PONNANNA, AAG A/W
SRI: P GOVINDAN, SPL PP)
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS INITIATED AGAINST THE
PETITIONER IN CRIME NO.32/2014 FILED FOR THE OFFENCES
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PUNISHABLE UNDER SECTION 21 FOR THE ALLEGED VIOLATION
OF SUB-SECTION (1) OF SECTION 4 OF MINES AND MINERALS
REGULATION AND DEVELOPMENT ACT 1957 AND FOR THE
VIOLATION OF RULES 43 AND 46 OF THE KARNATAKA MINES
AND MINERALS CONCESSION RULES, 1994 AND ALSO UNDER
SECTION 13(1)(C)(D) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND SECTION 120(B) AND 420 OF THE
IPC, 1860, ALLEGED ON THE FILE OF XXIII CITY CIVIL AND
SPECIAL JUDGE, BANGALORE CITY.
CRIMINAL PETITION NO.439 OF 2018
BETWEEN:
UMESHGOUDA L MALIPATIL
AGE:MAJOR,
S/O.LINGANNAGOWDA,
WORKING AS FDA,
ASSISTANT COMMISISONER'S OFFICE,
KOPPAL. ... PETITIONER
(BY SRI: S N HATTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
SUPERINTENDENT OF POLICE,
SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
UAS BUILDING, VETERINARY COLLEGE,
HEBBAL, BANGALORE-20.
REP BY SPL PP.
HIGH COURT, BANGALORE. ... RESPONDENT
(BY SRI: A.S.PONNANNA, AAG A/W
SRI: P GOVINDAN SPL PP)
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THIS CRL.P IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE ENTIRE PROCEEDINGS INITIATED AGAINST THE
PETITIONER IN CRIME NO.32/2014 FILED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 21 FOR THE ALLEGED VIOLATION
OF SUB-SECTION (1) OF THE SECTION 4 OF MINES AND
MINERALS (DEVELOPMENT AND REGULATION) ACT AND FOR
THE VIOLATION OF RULES 43 AND 46 OF THE KARNATAKA
MINES AND MINERALS CONCESSION RULES, AND ALSO UNDER
SECTION 13(1)(C)(D) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT, AND SECTIONS 120(B) AND 420 OF THE IPC,
ON THE FILE OF XXIII ADDITIONAL CITY CIVIL AND SPECIAL
JUDGE BANGALORE CITY.
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.32/2014 registered by the respondent-Special Investigation Team ("SIT" for short) for the offences punishable under section 21, section 4(1) of Mines and Minerals (Development and Regulation) Act 1957; Rules 43 and 46 of the Karnataka Mines and Minerals Concession Rules, 1994 and section 13(1)(c)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and section 120(b) and 4 420 of Indian Penal Code on the file of XXIII City Civil and Special Judge, Bengaluru city.
2. Learned counsel for the petitioners submits that the petitioner in Crl.P.No.8000/2017 is working as a Geologist in the Department of Mines and Geology at Koppal and petitioner in Crl.P.439/2018 is working as a Revenue Inspector in the Department of Revenue at Yelaburga Taluk, Koppal District. Eventhough petitioners were not connected with the mining work, they have been falsely implicated and FIR has been registered against the petitioners on the ground that they being officers of Department of Mines and Geology and Revenue Department, failed to take any steps to prevent illegal mining. The allegations made in the complaint do not specify the role of the petitioners. FIR has been registered in the year 2014 and till date, the complainant police have not filed the charge-sheet against the petitioners and therefore, the proceedings against them are liable to be quashed.
3. Learned counsel submits that registration of criminal case against the petitioners and the consequent investigation 5 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.32/2014 is liable to be quashed.
4. Refuting the above contentions, learned Additional Advocate General would submit that preliminary inquiry has revealed that petitioners did not discharge their lawful duties and by willfully colluding with other accused, permitted them to extract granite blocks without payment of royalty to the Government. With regard to the jurisdiction of the SIT to investigate into the alleged matter, the 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 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 6 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 said notification dated 22.11.2013 and the subsequent continuation notification dated 06.06.2017. The order 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 the Hon'ble Karnataka Lokayukta for further investigation by the Lokayuktha Police and to proceed with criminal prosecutions if necessary."
5. It is further argued that SIT, Karnataka Lokayuktha is declared as Police Station vide notification 7 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.
6. 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?
7(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 8 of the Hon'ble Lokayukta dated 27.07.2011, the State Government constituted a High Level Committee for implementation of the recommendations and observations made in the Lokayukta Report in the Government Order dated 18.08.2011.
(ii) The Hon'ble Lokayukta has dealt with a large number of cases pertaining to illegal mining issues in several Chapters in the second report dated 27-7-2011 and has recommended further investigations on several issues by competent agencies. The High Level Committee after examining the detailed investigation report part - II recommended various measures and actions to be taken by the State Government. One of the recommendations of the High Level Committee was to form a Special Investigation Team (SIT). Accordingly a Special Investigation Team (SIT) under the chairmanship of Sri.Deepak Sharma, Additional Principal Chief Conservator of Forests, an inter-disciplinary team of experts comprising of Heads of various Departments was constituted vide order dated 09.01.2012 to 9 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 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:
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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 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. 11
8. 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- 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.12
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 petitioners that the SIT has no jurisdiction to register the FIR and investigate into the alleged offences is liable to be rejected.
9. 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 13 report was prepared and it was ascertained that illegal quarrying activities, extraction of granite and transportation was being carried on by 26 Companies in violation of the terms of lease. It is alleged therein that petitioners did not discharge their lawful duties and by willfully colluding with other accused persons, permitted them to extract granite blocks without payment of royalty to the Government and 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. All these allegations necessarily require to be investigated.
10. 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 14 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.
11. 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 case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."15
12. 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-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 16 naturally be dropped. Therefore, the apprehension of the petitioners that the proceeding initiated in Cr.No.32/2014 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 consequent investigation. As a result, the petitions are liable to be dismissed.
Accordingly, the petitions are hereby dismissed.
Sd/-
JUDGE Bss.