Judgment Text
(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the charge sheet No.7/2016 dated 06.05.2016 at Document No.1 on the file of the respondent police as against the petitioner and consequently quash the entire proceedings before the XXIII Addl. City Civil and S.J. and Spl. Judge for Lokayukta cases at Bangalore in Spl.C.C.No.469/2016 including the order taking cognizance and issuing summons to the petitioner at Document No.2.This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the charge sheet No.7/2016 dated 06.05.2016 at Document No.1 on the file of the respondent police as against the petitioner and consequently quash the entire proceedings before the XXIII Addl. City Civil and S.J. and Spl. Judge for Lokayukta cases at Bangalore in Spl.C.C.No.469/2016 including the order taking cognizance and issuing summons to the petitioner at Document No.2.This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the charge sheet No.7/2016 dated 06.05.2016 at Document No.1 on the file of the respondent police as against the petitioner and consequently quash the entire proceedings before the XXIII Addl. City Civil and S.J. and Spl. Judge for Lokayukta cases at Bangalore in Spl.C.C.No.469/2016 including the order taking cognizance and issuing summons to the petitioner at Document No.2.)Through Video Conference:1. These three petitions are arising out of Crime No.17/2015 (Spl. C.C. No.469/2016) on the file of XXIII Addl. City Civil and S.J. and Spl. Judge for Lokayukta cases at Bangalore. Petitioners in Crl.P. No.9289/2016 are accused Nos.1 to 3, petitioners in Crl.P. No.9287/2016 and 9288/2016 are accused Nos.4 and 5 respectively.2. The allegations made against the petitioners in the charge sheet are that accused No.1 M/s. ILC Industries Limited sold 6002 MTs of iron ore to M/s. Priyanka Agencies. M/s. Priyanka Agencies, in turn sold the said iron ore to M/s.Amalgiris who in turn sold the same to M/s.Pearl International. According to the prosecution, the petitioners-accused failed to produce invoices or permits relating to the sale and transportation of the said iron ore from S.B. Minerals to Belekeri port, and thus caused a total loss of Rs.72,42,658/- to the State exchequer and thereby, committed the offences punishable under sections 379, 409 and 420 read with 120-B of IPC and Sections 21 and 23 read with 4(1)(A) of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 165 read with Rule 144 of the Karnataka forest Rules, 1969.3.1. The contention of the learned Counsel for the petitioners is that the allegations made in the charge sheet are vague and are not supported by any material; there is no evidence to show the date of sale of iron ore to M/s.Priyanka Agencies; M/s.Priyanka Agencies has not been made as the accused; Accused No.1 is not required to furnish invoices or permits relating to the sale made in favour of M/s.Priyanka Agencies. Mere failure to furnish invoices or permits do not make out the alleged offences.3.2 It is further contended that the order of taking cognizance by the Special Judge is bad in law inasmuch as the learned Special Judge is not empowered to take cognizance of the offences under the MMDR Act in view of the bar contained under Section 22 of the Act. The offences alleged against the petitioners relate to contravention of Section 4 of the MMDR Act, which are punishable under Section 21 of the Act; and therefore, in view of bar contained in Section 22 of the MMDR Act, the Special Court could not have taken cognizance of the alleged offences based on the final report submitted by the Special Investigating Team (SIT) under Section 173 of Cr.P.C. and therefore, initiation of criminal action against the petitioners is illegal and without authority of law, consequently the entire proceedings are liable to be quashed.4.1. Refuting these contentions, learned Special Public Prosecutor appearing appearing for the respondent, by drawing my attention to the charge sheet papers namely, page No.8372 of volume 26 would submit that during the course of investigation, the investigating agency has collected the extract of the statement of accounts relating to M/s.Priyanka Agencies maintained in Axis Bank which clearly discloses that M/s.Priyanka Agencies has made payment of Rs.25,00,000/- and another payment of Rs.5,20,00,000/- to accused No.1-company on 21.01.2010 and as such, there is prima facie material to show the transaction alleged in the FIR.4.2. Further referring to the statements of C.Ws.107, 132, 139 learned Special Public Prosecutor would submit that there is prima facie material even to show transportation of the iron ore from M/s. ILC Industries to Belekeri Port; therefore, the contentions urged by the petitioner are factually incorrect and cannot be sustained.4.3. With regard to the technical objections raised by the learned counsel for the petitioners touching the jurisdiction of the learned Special Judge to take cognizance of the offences, learned counsel for the respondent would submit that the Special Judge has passed a detailed order of cognizance taking into consideration the material on record, which does not suffer from any error or infirmities. Insofar as compliance of section 22 of MMDR Act, the learned Special Public Prosecutor fairly submitted that in the instant case, the complaint, as mandated under Section 22 of MMDR Act, has not been submitted before the court. However, he would submit that even assuming that the cognizance taken by the learned Special Judge in respect of the offences under the provisions of MMDR Act is bad in law for want of complaint by authorized officer, yet, in view of the law laid down by this Court in RAVI @ RAVINDRA AND ANOTHER v. STATE OF KARNATAKA reported in (2019) 3 KLJ 33 (Para-44), the cognizance taken by the Special Judge in relation to all other offences would be valid.4.4. The last submission made by the Special Public Prosecutor is contested by the learned counsel for the petitioners contending that primary offences alleged under the provisions of the MMDR Act being inseparable and cannot be segregated, even the cognizance taken by the Court for IPC and forest offences is also vitiated and therefore, entire order taking cognizance and issuance of summons to the petitioners is liable to be set aside.5. Considered the submissions of the learned counsel for the parties and perused the records.6. Insofar as the factual contentions urged by the learned counsel for the petitioners is concerned, suffice it to note that the documents referred to by the learned Standing counsel for the respondent relating to the bank statement of M/s.Priyanka Agencies prima facie discloses that a sum of Rs.25,00,000/- and Rs.5,20,00,000/- have been transferred to the account of accused No.1. According to the prosecution, the said amount reflects the consideration for the sale effected by accused No.1 in favour of M/s.Priyanka Agencies. In the wake of this allegation, which is supported by the cogent documentary evidence, it cannot be said that the allegations leveled against the petitioners are without any basis as contended.7. Insofar as the allegations concerning the transportation of the alleged material from accused No.1 to Belekeri Port is concerned, the prosecution has rested its case on the statements of C.W.107 - Manager of M/s. Priyanka Agencies, C.W.132-transporter and C.W.139- another transporter. Therefore, the contention of the learned counsel for the petitioners that the petitioners are sought to be prosecuted without any material and without any basis, is liable to be rejected.8. Coming to the cognizance taken by the Special Judge is concerned, a perusal of the order dated 05.11.2016 indicates that the learned Special Judge has considered the final report of the SIT and has taken cognizance of the offences punishable under sections 379, 409, 420 read with 120-B of IPC including the offences under Sections 21, 23 read with 4(1)(A) of the Mines and Minerals (Development and Regulation) Act, 1957 and has issued process to the petitioners.9. Insofar as the offences under the provisions of MMDR Act are concerned, law is well settled that "in case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act", in view of the prohibition contained in Section 22 of the Act against prosecution of a person except on a compliant made by the officer authorized under the Act (see STATE OF NCT OF DELHI VS. SANJAY, (2014) 9 SCC 772, para 70). Undeniably, no such complaint has been filed before the learned Special Judge. As a result, the order of the learned Special Judge takin
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g cognizance and issuing summons to the petitioners in respect of the offences under the provisions of MMDR cannot be sustained. However, Section 22 of the Act does not debar the court from taking cognizance of the offences committed by persons under IPC and Forest Offences.10. As a result, petitions are allowed in part. The impugned orders insofar as taking cognizance and issuing summons to the petitioners for the offences under the provisions of MMDR Act is set aside.11. The proceedings initiated against the petitioners for the offences under Sections 379, 409 and 420 read with Section 120B of IPC and Rule 165 r/w Rule 144 of the Karnataka Forest Rules, 1969 shall continue in accordance with law.Liberty is reserved to the respondent to file necessary complaint in terms of Section 22 of the MMDR Act seeking prosecution of the petitioners for the contraventions under the Act, if desired.In view of dismissal of main petitions, all pending I.As, if any, are also dismissed.