Karnataka High Court
B Basavaraju vs State Of Karnataka By on 17 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.6840/2018
C/W
W.P. NOS.6845/2018, 6846/2018, 6848/2018,
6850/2018 (GM-RES)
AND CRL.P.No.6602/2019
IN W.P. NO.6840/2018:
BETWEEN
1. B BASAVARAJU
S/O DUSHYANTHAPPA,
AGED ABOUT 36 YEARS
PROPRIETOR:M/S SRI MANJUNATHESHWARA MINERALS,
24TH WARD,NEAR AMBEDKAR SCHOOL,
BELLARY ROAD CIRCLE, HOSAPETE
R/AT SRI VEERABHADRESHWARA NILAYA,
1ST CROSS, BEHIND KSRTC BUS DEPOT,
22ND WARD,RAJAJINAGARA,
HOSAPETE-583 201
BELLARY DISTRICT
2. MAHESH KUMAR @ KHARAPUDI MAHESH KUMAR
S/O K NAGARAJ,
AGED ABOUT 38 YEARS
MANAGING DIRECTOR
M/S LAKSHMI VENKATESHWARA MINERALS,
BELLARY ROAD CIRCLE,21ST WARD,
NEAR KATTANANJAPPA SCHOOL,
BELLARY ROAD CIRLCE,J.P NAGAR,
2
HOSAPETE TALUK,
BELLARY DISTRICT-583 201
3. K SADASHIVA
S/O K NAGARAJ,
AGED ABOUT 40 YEARS
PARTNER:M/S LAKSHMI VENKATESHWARA MINERALS,
BELLARY ROAD CIRCLE,
21ST WARD, HOSAPETE
R/AT NO.847,BELLARY ROAD CIRCLE,
21ST WARD,
NEAR KARAKUTTA FLOUR MILL,
HOSAPETE TALUK,
BELLARY DISTRICT-583 201
4. K KUMAR
S/O K NAGARAJ,
AGED ABOUT 35 YEARS
PARTNER:M/S LAKSHMI VENKATESHWARA MINERALS,
BELLARY ROAD CIRCLE,
21ST WARD, HOSAPETE
R/AT NO.847,BELLARY ROAD CIRCLE,
21ST WARD,
NEAR KARAKUTTA FLOUR MILL,
HOSAPETE TALUK,
BELLARY DISTRICT-583 201
5. I YERRISWAMY
S/O I JAMBANNA,
AGED ABOUT 38 YEARS
PARTNER:M/S LAKSHMI VENKATESHWARA MINERALS,
BELLARY ROAD CIRCLE,
21ST WARD, HOSAPETE
R/AT NO.847,BELLARY ROAD CIRCLE,
21ST WARD, NEAR KARAKUTTA FLOUR MILL,
HOSAPETE TALUK,
BELLARY DISTRICT-583 201. :PETITIONERS
(BY SRI: HASHMATH PASHA, SENIOR ADVOCATE)
3
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA POLICE,
BANGALORE-560 001
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
:RESPONDENT
(BY SRI VENKATESH S. ARABATTI SPL. PP AND
SRI B.S. PRASAD, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS INITIATED IN
SPL.C.C.NO.534/2016 ON THE FILE OF THE LEARNED XXIII
ADDITIONAL CITY CIVIL AND SESSIONS COURT, SPEICIAL
JUDGE FOR PREVENTION OF CORRUPTION CASES, BANGALORE
CITY AS PER ANNEXURE-C AS AN ABUSE OF PROCESS OF LAW.
IN W.P. NO.6845/2018:
BETWEEN
MAHESH KUMAR @ KHARAPUDI MAHESH KUMAR
S/O K NAGARAJ
AGED ABOUT 34 YEARS
R/A NO.847, 21ST WARD
NEAR LUCKY TYRES
FRONT OF SHANKAR BUILDING
BELLARY ROAD
HOSPETE-583201
BELLARY DISTRICT :PETITIONER
(BY SRI: HASHMATH PASHA, SENIOR ADVOCATE)
4
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA
BANGALORE-560001
(REPRESENTED BY LEARNED SPECIAL
PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VENKATESH S. ARABATTI SPL. PP AND
SRI B.S. PRASAD, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS INITIATED IN
SPL.C.C.NO.470/2016 ON THE FILE OF THE LEARNED XXIII
ADDITIONAL CITY CIVIL AND SESSIONS COURT, SPEICIAL
JUDGE FOR PREVENTION OF CORRUPTION CASES, BANGALORE
CITY AS PER ANNEXURE-C AS AN ABUSE OF PROCESS OF LAW.
IN W.P. NO.6846/2018:
BETWEEN
1. K. MAHESH KUMAR @ KARAPUDI MAHESH
S/O K NAGARAJ
AGED ABOUT 36 YEARS
R/A NO.847, BELLARY ROAD CIRCLE
OPP.LUCKY TYRES
HOSAPETE-583201
BELLARY DISTRICT
2. BASAVARAJA B
S/O P DUSHYANTHAPPA
AGED ABOUT 36 YEARS
PROPRIETOR M/S SRI MANJUNATEHSHWARA MINERALS
NO.847, BELLARY CIRCLE
5
BEHIND BUS DEPOT
HOSAPETE-583201
BELLARY DISTRICT
...PETITIONERS
(BY SRI: HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA, POLICE
BANGALORE
(REPRESENTED BY LEARNED SPECIAL
PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VENKATESH S. ARABATTI SPL. PP AND
SRI B.S. PRASAD, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS INITIATED IN
SPL.C.C.NO.468/2016 ON THE FILE OF THE LEARNED XXIII
ADDITIONAL CITY CIVIL AND SESSIONS COURT, SPEICIAL
JUDGE FOR PREVENTION OF CORRUPTION CASES, BANGALORE
CITY AS PER ANNEXURE-C AS AN ABUSE OF PROCESS OF LAW.
IN W.P. NO.6848/2018:
BETWEEN:
1. MAHESH KUMAR @ KHARAPUDI MAHESH KUMAR
S/O K. NAGARAJ
AGED ABOUT 34 YEARS
SUPERVISOR
M/S. SRI MANJUNATHESHWARA MINERALS
HOSAPETE, WARD NO.21
NEAR KATTA NANJAPPA SCHOOL
6
J.P. NAGARA, NEAR BELLARY CIRCLE ROAD
HOSAPETE - 583 201.
BELLARY DISTRICT.
2. B. BASAVARAJA
S/O DUSHYANTHAPPA
AGED ABOUT 40 YEARS
PROPRIETOR, M/S. SRI MANJUNATHESHWARA MINERALS
HOSAPETE,
R/AT 1ST FLOOR, RAJAJINAGARA
23RD WARD, BEHIND KSRTC STAND
HOSAPETE - 583 201
BELLARY DISTRICT.
:PETITIONERS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
BENGALURU - 560 001.
(REPRESENTED BY LEARNED SPECIAL
PUBLIC PROSECUTOR)
:RESPONDENT
(BY SRI VENKATESH S. ARABATTI SPL. PP AND
SRI B.S. PRASAD, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH S.482 OF
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS INITIATED IN
SPL. C.C. NO.471/2016 ON THE FILE OF LEARNED XXIII ADDL.
CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR
7
PREVENTION OF CORRUPTION CASES AS PER ANNEXURE-C AS
ABUSE OF PROCESS OF LAW, ETC.
IN W.P.6850/2018:
BETWEEN:
1. BASAVARAJU
S/O DUSHYANTHAPPA
AGED ABOUT 36 YEARS
OWNER: M/S. SRI MANJUNATHESHWARA MINERALS
24TH WARD, NEAR AMBEDKAR SCHOOL
BELLARY ROAD CIRCLE, HOSAPETE
R/A SRI VEERABHADRESHWARA NILAYA
1ST CROSS, BEHIND KSRTC BUS DEPOT
RAJAJINAGARA
HOSAPETE - 583 201
BELLARY DISTRICT.
2. MAHESH KUMAR @ KHARAPUDI MAHESH KUMAR
S/O K. NAGARAJ
AGED ABOUT 37 YEARS
OWNER: M/S. LAKSHMI VENKATESHWARA MINERALS
R/A NO.847, BELLARY ROAD CIRCLE
HOSAPETE - 583 201
BELLARY DISTRICT.
...PETITIONERS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM,
KARNATAKA LOKAYUKTA,
BENGALURU.
:RESPONDENT
(BY SRI VENKATESH S. ARABATTI SPL. PP AND
SRI B.S. PRASAD, SPL. PP)
8
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH S.482 OF
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS INITIATED IN
SPL. C.C. NO.91/2017 ON THE FILE OF LEARNED XXIII ADDL.
CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR
PREVENTION OF CORRUPTION CASES AS PER ANNEXURE- C AS
ABUSE OF PROCESS OF LAW, ETC.
IN CRL.P.NO.6602/2019:
BETWEEN
1. K MAHESH KUMAR @ KARAPUDI MAHESH
S/O K NAGARAJ
AGED ABOUT 39 YEARS
PARTNER:M/S SRI LAKSHMI
VENKATESHWARAPA MINERALS, HOSPET
R/A NO.847, WARD NO.24
BELLARY CIRCLE
HOSPETE
BELLARY DISTRICT-583102.
2. K GOVINDARAJ @ GOVINDANNA
S/O K NAGARAJ
AGED ABOUT 42 YEARS
RESIDING NEAR KATTA NANJAPPA SCHOOL
WARD NO.22, J P NAGAR
HOSPETE
BELLARY DISTRICT-583102
3. K SADASHIVA
S/O K NAGARAJ
AGED ABOUT 41 YEARS
PARTNER OF M/S SRILAKSHMI VENKATESHWARA
MINERALS
R/A NO.847, WARD NO.24
BELLARY CIRCLE
9
HOSPETE
BELLARY DISTRICT-583102
4. K KUMAR
S/O K NAGARAJ
AGED ABOUT 34 YEARS
PARTNER OF M/S SRILAKSHMI VENKATESHWARA
MINERALS
R/A NO.847, WARD NO.24
BELLARY CIRCLE
HOSPETE
BELLARY DISTRICT-583102
5. IDLI YERRISWAMY
S/O G JAMBANNA
AGED ABOUT 37 YEARS
PARTNER OF M/S SRILAKSHMI VENKATESHWARA
MINERALS
R/A NO.1047, WARD NO.25
NEAR SANTOSH BRILLIANT SCHOOL
HOSPETE
BELLARY DISTRICT-583102
6. DADA PEER
S/O SADIQ ALI
AGED ABOUT 28 YEARS
R/A NO.197
OPPOSITE MOMINA MASJID
COWLPET, HOSPETE
BELLARY DISTRICT-583102
7. K NAGARAJ
S/O ANJINAPPA
AGED ABOUT 70 EYARS
PROPRIETOR:M/S SRINIVAS MINERALS
R/ NO.847, WARD NO.24
BELLARY CIRCLE
HOSPETE
BELLARY DISTRICT-583102
10
8. K HANUMANTHA @ K HANUMANTHAPPA
S/O HANUMANTHAPPA
PROPRIETOR :M/S SRIRAM MINERALS
R/A NO.1543, WARD NO.22
AZADNAGARA BUS DEPOT
HOSPETE
BELLARY DISTRICT-583102
9. B BASAVARAJ
S/O DUSHANTHA
AGED ABOUT 37 YEARS
PROPRIETOT: M/S SRI MANJUNATHESHWARA MINERALS
R/A SRI VEERABHADRESHWARA NILAYA
1ST CROSS, BEHIND K S R T C BUS DEPOT
RAJAJI NAGARA, HOSPETE
BELLARY DISTRICT-583102
10 . N KISHORE KUMAR
S/O DEVANNA
PROPRIETOR M/S JAMBUNATHESHWARA LOGISTICS
R/A NO.1/26
WARD NO.24
OPP TO AMBEDKAR SCHOOL
JAMBOONATH ROAD
HOSPETE
BELLARY DISTRICT-583102
...PETITIONERS
(BY SRI: HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA BY
SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA POLICE
BANGALORE CITY-560001
(REPRESENTED BY LEARNED SPECIAL
PUBLIC PROSECUTOR
11
SPECIAL INVESTIGATION TEAM
BENGALURU-560001)
...RESPONDENT
(BY SRI: VENKATESH.S.ARBATTI, SPECIAL PP AND
SRI: B.S.PRASAD, SPECIAL PP)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO:
(A) QUASH THE PROCEEDINGS IN SPL.C.C.NO.710/2018
PENDING ON THE FILE OF THE LEARNED XXIII ADDITIONAL
CITY CIVIL AND SESSION JUDGE FOR PREVENTION OF
CORRUPTION, BENGALURU CITY (CCH-24) WHICH IS ARISING
OUT OF CRIME NO.31/2014 ON THE FILE OF THE SPECIAL
INVESTIGATION TEAM, LOKAYUKTA, BENGALURU FOR OFFENCE
PUNISHABLE UNDER SECTIONS 379, 420, 468, 471 R/W
SEC.120-B IPC AND SECTION 21 R/W 4(1), 4(1)(A) MMRD ACT
AND SECTIONS 7,13(2) R/W SEC.13(1)(A) PC ACT AS AN ABUSE
OF PROCESS OF LAW.
(B) QUASH THE COMPLAINT FILED BY THE RESPONDENT
POLICE UNDER SEC.200 CRPC FOR OFFENCE UNDER SECTION
21 R/W SECTIONS 4(1) AND 4(1)(A) OF THE MMDR ACT AS
ILLEGAL.
THESE PETITIONS HAVING BEEN RESERVED FOR ORDERS
ON 12/11/2020, COMING ON FOR PRONOUNCEMENT OF ORDER
THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE
THE FOLLOWING:
12
ORDER
Petitioners in this batch of petitions have challenged the order of taking cognizance and issuance of summons by the Special Judge and have sought to quash the proceedings initiated against them for the alleged offences punishable under Sections 379, 409, 420, 465, 468, 471, 120(B) of IPC and Sections 21 r/w 4(1) and 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
2. The details of the proceedings and the rank of the petitioners in the respective crime and the gist of the allegations made against them are detailed in the table here below:-
Criminal Rank of Crime Spl.CC.No.
Petition the No. (Before
parties the Gist of the allegations
Special
Judge)
6840/2018 A10 & 3/2015 91/2017 Petitioner No.1 / accused No.10 being
the proprietor of M/s. Sri
12 Manjunatheshwara Minerals entered
into criminal conspiracy with Dilip
Singh, Deepak Singh, Praveen Singh of
M/s. Sai Krishna Minerals Pvt. Ltd.; Mr.
Mohd. Asgar Khan of M/s. Arshad
Exports; Nandakumar Singh,
Shyamaraj Singh, Jairaj Singh of M/s.
SVK Minerals and M/s. SB Minerals;
and with one K.V. Nagaraj, Mahesh
Kumar @ Kharadapudi Mahesh and in
furtherance of said conspiracy, assisted 13 transaction of 16976 MT of iron ore to Belekeri Port on the strength of false and fabricated documents without obtaining prior permit and without payment of royalty and other charges and thereby caused a loss of Rs.2,04,85,109/- to the State Exchequer and committed the offences punishable under Sections 409, 420, 471 read with 120(B) of IPC and Section 21 read with 4(1)(A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act') and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969 (for short, 'Forest Rules').
Petitioner No.2 / accused No.12 being the partner of M/s. Lakshmi Venkateshwara Minerals entered into criminal conspiracy with the aforesaid persons and accused No.10 and in furtherance of the said conspiracy facilitated transaction of 16976 MT iron ore to Belekeri Port without obtaining prior permit and without payment of royalty and other charges to the Government and also sold 1411 MT of stolen iron ore to M/s. AKM Transports & Traders and caused loss of Rs.2,20,31,565/- to the State Exchequer and thereby committed offences punishable under Sections 379, 409, 420, 471 read with 120(B) of IPC and Section 21 read with 4(1)(A) of MMDR Act and Rule 165 read with Rule 144 of the Forest Rules.
6840/2018 A18, 3/2015 91/2017 The petitioners sold 1411 Metric Tons of Stolen Iron Ore without proper A19 & permit and way passes and thereby caused loss of Rs.15,46,456/- to the A20 State Exchequer and committed offences p/u/ss.379 & 420 r/w 120(B) of IPC and Section 21 r/w Sec.
4(1)(A) of MMDR Act, 1957 6845/2018 A10 4/2015 470/2016 The petitioner being the Partner of M/s.
Lakshmi Venkateshwara Minerals between 01.01.2009 and 31.05.2010, received risk money from the purchasers of Iron Ore and facilitated transportation of 1893 Metric Tons of Iron Ore from SVK Minerals and 3768 14 Metric Tons from the Stock Yard of M/s.Herriswamy Minerals, without proper permit and without payment of royalty and caused a loss of Rs.84,04,784/- to the State Exchequer and thereby committed offences p/u/ss.379 & 420 r/w 120(B) of IPC and Section 21 r/w Sec. 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
The petitioners entered into a criminal 6846/2018 A5 & 8/2015 468/2016 conspiracy with Accused Nos.2, 3, 4 & 6 for illegally extracting Iron Ore for A6 the purpose of export and in furtherance thereof provided the fake invoice, fake permit and fake transit trip sheet and facilitated illegal transport and export of illegally extracted 9500 Metric Tons of Iron Ore from the Forest area and transported the same to the Belikeri Port and caused a loss of Rs.8,14,83,159/- to the State Exchequer and thereby committed offences p/u/ss.409, 420, 465, 468 r/w. 120(B) of IPC and Section 21 r/w Sec. 4 (1) & 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
6848/2018 A27 & 1/2014 471/2016 The petitioners entered into a criminal conspiracy and in furtherance thereof, A28 opened a Firm by name of M/s.
Manjunatheshwara Minerals in the name of Accused No.28 and on the strength of fabricated documents purported to have been issued by the Minerals and Geology Department, Andhra Pradesh, sold 5000 Metric Tons of illegally extracted Iron Ore from the Forest Area to M/s. Manjunatheshwara Minerals without permit and without payment of collected risk money and thereby caused a loss of Rs.68,86,112/- to the State Exchequer and committed offences p/u/ss.379, 420, 468, 471, 409, 120(B) of IPC and Section 21 r/w Sec.4(1) & 4(1)(A) of MMDR Act, 1957.
156850/2018 A1 3/2015 91/2017 The petitioner No.1 (A1), the Proprietor of M/s. Manjunatheshwara Minerals, illegally sold 2749.01 Metric Tons of Iron Ore to M/s. Nivya Traders and to M/s Adarsh Associates and to the Proprietor of M/s. Claria Marketing by fabricating false permits and without payment of royalty and other charges to the Government and caused loss of Rs.1,58,98,774.5 and thereby offences p/u/ss.409, 420 r/w. 120(B) and Section 21 r/w Sec. 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
The petitioner No.2 (A12), sold 183.34 Metric Tons of Iron Ore to M/s. Mega 91/2017 Minerals without prior permit and A12 3/2015 without payment of royalty and other charges to the Government and caused loss of Rs.75,280.87/- to the State Exchequer and thereby committed offences p/u/ss.409, 420 r/w. 120(B) and Section 21 r/w Sec. 4(1)(A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969.
6602/2017 Accu 31/2014 710/2018 The petitioners(A1 to A5 & A7 to A11) entered into a criminal conspiracy sed among themselves and other accused persons with the object of cheating the Nos. Government and in furtherance thereof, committed theft of Iron Ore from the 1 to private lands and Illegally received risk money to transport the said Iron Ore to 5 & 7 respective stock yards and illegally transported the same to various places to 11 and sold the same outside the State without proper dispatch permits and without payment of royalty and other charges and caused a loss of Rs.114.60 Crores to State Exchequer and further the petitioners entered into a criminal conspiracy with the Vigilance official Sri.Veerabhadraiah for release of the seized 99 vehicles involved in the transportation of the Iron Ore on payment of lesser fine and thereby caused a loss of Rs.28.31 Lakhs to the 16 State Exchequer and committed offences p/u/ss.379, 409, 420, 468, 471 r/w. 120(B) of IPC and Section 21 r/w Sec. 4 (1) & 4(1)(A) of MMDR Act, 1957.
3. The contentions of the learned Senior Counsel for the petitioners are as follows:
i) The allegations levelled in the charge sheet are directed only against the firm. The firm is not made as a party/accused.
Therefore, the prosecution of the petitioners, without making the firm as accused is illegal and untenable.
ii) The allegations made in the charge sheet do not prima facie disclose the ingredients of the offences so far as the petitioners are concerned; these allegations are not supported by any cogent materials; there is no acceptable evidence to show that the petitioners were involved in the alleged transactions and therefore, the learned Magistrate has committed an error in issuing summons to the petitioners.
iii) Impugned orders passed by the learned Special Judge do not reflect either application of mind or consideration of the material on record by the Special Judge and therefore, solely on 17 this ground, the impugned orders of cognizance and consequent order of summons issued to the petitioners are liable to be quashed.
iv) The order of cognizance passed by the learned Magistrate in relation to the offences under the provisions of MMDR Act is wholly illegal and without jurisdiction in view of the bar contained under Section 22 of the MMDR Act. In the absence of any complaint by the authorized officer, the learned Special Judge was not empowered to take cognizance of the alleged offences.
v) Offences alleged under the provisions of the MMDR Act being the principal offences, in view of the defect in the cognizance order, even the cognizance taken by the learned Special Judge for the offences under the Indian Penal Code and the Forest Act are also bad in law. Thus, the learned Senior Counsel for the petitioners has sought to set aside the respective proceedings initiated against the petitioners and to quash the impugned orders passed by the learned Special Judge. 18
In addition to the above common grounds, individual contentions are urged in the following petitions:
WP 6840/2018:
4. There is nothing on record to show that the petitioners assisted the transportation of the alleged iron ore and therefore, the charges leveled against the petitioners being false and baseless are liable to be quashed.
In so far as accused Nos. 18, 19 and 20 are concerned, they are prosecuted solely on the ground that they were the partners of M/s. Lakshmi Venkateshwara Minerals, but the Managing Director of the said firm having already been prosecuted as accused No.12, the prosecution of the present accused Nos. 18, 19 and 20 is legally untenable particularly when the firm itself is not made as an accused. W.P.6845/2018:
5. Petitioner / accused No.10 being a partner is not entitled to be prosecuted when the firm itself has not been made an accused. Further the allegations leveled in the charge-sheet are vague and do not prima facie disclose the ingredients of the 19 alleged offences. M/s. Lakshmi Venkateshwara Minerals has not effected any sale or transaction of iron ore as alleged in the charge-sheet.
W.P.6846/2018:
6. Petitioner No.1 / accused No.5 is no way connected to the alleged transaction because he is neither the proprietor nor a partner of M/s. Sri Manjunatheshwara Minerals. Therefore, the prosecution of the petitioner No.1 / accused No.5 is wholly illegal and abuse of process of the Court.
In so far as petitioner No.2 / accused No.6 is concerned, he was the proprietor of M/s. Sri Manjunatheshwara Minerals. But the alleged transaction has not been effected by the said concern and no documentary evidence is produced to show the alleged sale, therefore, the prosecution of the petitioner is not legally tenable.
W.P.6848/2018:
7. Petitioner No.1 / accused No.27 is neither the proprietor nor a partner of M/s. Sri Manjunatheshwara Minerals and no material is produced to show that he has entered into a 20 conspiracy with any of the accused for sale and transportation of 5000 MT of iron ore and therefore, the prosecution of petitioner No.1 / accused No.27 is wholly illegal and amounts to abuse of process of court.
Petitioner No.2 / accused No.28, though was the proprietor of M/s. Sri Manjunatheshwara Minerals, yet, the said concern has not effected the sale of alleged quantity of iron ore and no documents with regard to the alleged sale having been produced along with the charge-sheet, the prosecution of petitioner No.2/accused No.28 is also illegal and is liable to be quashed. W.P.6850/2018:
8. Learned Senior Counsel appearing for the petitioners contends that no such sale has taken place at the instance of the petitioner No.1 / accused No.1 as alleged in the charge-sheet and no material is available in proof of the same and therefore, the prosecution of the petitioner No.1 / accused No.1 being false and baseless is liable to be quashed.
In so far as petitioner No.2 / accused No.12 is concerned, learned Senior Counsel would submit that even though the 21 allegations are to the effect that alleged transaction was entered into by two firms i.e. M/s. Lakshmi Venkateshwara Minerals and M/s. Megha Minerals, none of the firms are made as accused and no documents are produced to show the alleged transaction and therefore, the prosecution of the petitioner being an abuse of process of Court is legally untenable and liable to be quashed. CRL.P 6602/2019:
9. No material has been produced by the prosecution to prove the alleged transaction. The allegations are vague and not supported by any documents. Accused No.1 was the Managing Partner of Lakshmi Venkateshwara Minerals. There are no documents to show that he was personally involved in any of the alleged transaction and therefore, the prosecution of accused No.1 is baseless and cannot be sustained. Accused Nos.2 to 5 were the nominal partners. The Managing Partner himself having been prosecuted, accused Nos.2 to 5 cannot be made liable personally to the act of accused No.1 or to the act of the firm and therefore, prosecution of accused Nos.2 to 5 is also bad in law. Accused Nos.6 to 11 were mere employees. No material is 22 available to show that the petitioners were party to the alleged conspiracy or connivance with accused No.1 or other partners of the firm. Moreover the firm itself having not been prosecuted, prosecution of the employees is legally unsustainable.
Further, in respect of the very same allegation, petitioner No.1 is facing trial in Spl.CC.Nos.135/2013, 6/2014, 21/2014 and 105/2014 on the file of the Special Court (CCH-82) and therefore, the prosecution of the petitioner on the same set of allegations cannot be sustained as the same is hit by Section 300 of Cr.P.C.
10. Refuting 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.
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11. 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, requisite complaint has been filed by the Authorized Officer before the Special Judge in all of the above cases and as such, there is substantial compliance of the requirements of Section 22 of the MMDR Act.
12. Regarding prosecution of the petitioners in their capacity as partner/s of the involved firms, the learned Special Public Prosecutor would submit that the allegations in the charge sheet are directed against the petitioners in their capacity as the partner/s of the involved firms as well as in their 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 petitioners to establish during trial that the alleged offences were committed by the company or the firm without their knowledge or that they exercised all due diligence to prevent the commission of such offences and therefore, the said contention 24 does not furnish a ground to the petitioners to seek quashment of the proceedings.
13. 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 petitioners and as such, there being prima-facie material to proceed against the petitioners, none of the contentions urged by the petitioners merit acceptance.
14. Considered the submissions and perused the record.
15. 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. STATE OF KARNATAKA reported in 2019(1) KLJ 149. In view of this 25 order, the first contention urged by the learned Senior Counsel is liable to be rejected and is accordingly rejected.
16. 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 iron ore from the area(s) of extraction to Belekeri Port and from there its illegal export to other countries."26
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 (D.D.12.10.2017), no further order is necessary on the objection raised by the learned Senior Counsel.
17. 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 petitioners is 27 concerned, a perusal of the order sheets produced by the petitioners 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 petitioners. 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.
18. 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 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."
19. Learned Senior Counsel for the petitioners/accused has placed heavy reliance on the decision of the Hon'ble Apex 28 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 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)
20. What emerges from the above decision is that based on the final report filed under Section 173 of the Code, the 29 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 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 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?
21. Though it is vehemently argued by the learned Senior counsel for the petitioners/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 30 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 petitioners/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 petitioners/accused under IPC as well as 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.
22. 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 31 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 decides to initiate proceedings against the alleged offenders, that it can be positively stated that he has taken cognizance of the offence."
23. 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." 32
24. 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 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.
25. 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 33 parallel investigation nor could it have rejected the final report. It is not the case of the petitioners that the report submitted by the SIT is without authority of law. Even otherwise, 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 34 from consideration while taking cognizance of the offence under the Act, provided a complaint as required under Section 22 is filed by the authorized officer. If the argument of the learned Senior counsel for the petitioners 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.
26. In the light of these principles and for the reasons discussed above, and especially keeping in mind the peculiarities 35 of the present cases 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 petitioners cannot be faulted with. Likewise, as held in the above decisions, non recording the reasons by the Special Court while issuing summons to the petitioners also cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioners. 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 petitioners were notified of the offences at the earliest point of time before their 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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27. 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 petitioners.
28. The next contention urged by learned Senior counsel for the petitioners that the allegations leveled in the charge sheet are directed only against the firm and therefore the prosecution of the petitioners 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 petitioners are sought to be prosecuted not only as the partner/s of the involved firms, but also in their personal capacity.
29. As could be seen from the above narration, petitioners have been implicated in the alleged offences in their individual capacity and not as alter ego of the company. There are no allegations in the entire charge sheets that the 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 37 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.
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 38 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."
30. In the instant cases, the allegations are directed only against the petitioners. The role played by the petitioners has been narrated. It is not the case of the respondent that the alleged acts were committed by the petitioners for and on behalf of the company. They are not prosecuted in their capacity as the partner/s of the firm because they are partners. When the notion of the company 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 39 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 petitioners ingeniously have 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 petitioners that the prosecution launched against them is bad for non-prosecution of the firm or the company does not hold water.
31. 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, 465, 468, 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 40 facie disclose the involvement of the petitioners in the alleged offences. Under the said circumstances, the criminal action having been rightly initiated against the petitioners, 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 petitioners, Writ Petition Nos.6840/2018, 6845/2018, 6846/2018, 6848/2018, 6850/2018 and Criminal Petition No.6602/2019 are dismissed.
In view of dismissal of main petitions, all pending I.As are also dismissed.
Sd/-
JUDGE sac/rs*