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2020 DIGILAW 2247 (KAR)

H. Sajjad Wahab v. State Of Karnataka

2020-11-12

JOHN MICHAEL CUNHA

body2020
JUDGMENT John Michael Cunha, J. - The petitioner is accused in crime No.6/2015 (Special CC No.463/2016) on the file of XXIII Additional City Civil and Sessions Judge and Special Judge for Lokayukta cases at Bangalore. 2. The material allegations leveled in the charge sheet are that the petitioner-accused No.6 as the Managing Partner of M/s. Suhana Minerals, Hospet, purchased total quantity of 33000 of MTs of iron ore in Belikeri port area and out of this quantity, 2214.52 MTs iron ore was purchased through M/s. Akshata Minerals, 2230.96 MTs from M/s. VKL Enterprises and regarding these transactions, no permits were secured and no transportation details or invoices were obtained by the petitioner. 3. 3.1. The contention of the learned Counsel for the petitioner is that as per the allegations made in the charge sheet, the purchase had taken place within the Port premises and therefore, the question of obtaining the permit does not arise; MMDR Act or any other statute does not cast obligation on the purchaser to obtain prior permit and therefore, the allegations made against the petitioner do not constitute the ingredients of the offences under the provisions of the MMDR Act. 3.2. Further the learned Counsel would submit that even if it is presumed that the offences under the provisions of the MMDR Act are committed, yet, the learned Special Judge did not have jurisdiction to take cognizance of the alleged offences without the complaint having been filed by the Authorized Officer as envisaged under the provisions of the Act. In support of this submission, learned counsel has placed reliance on the decision in JEEWAN KUMAR RAUT AND ANOTHER vs. CBI, (2009) 7 SCC 526 and emphasized that the learned Special Judge having taken cognizance and the consequent issuance of summons to the petitioner is illegal and violative of the provisions of MMDR Act and therefore the entire proceedings are liable to be quashed. 3.4. Further, the learned Counsel would submit that the offences alleged under the provisions of the MMDR Act being primary offences which cannot be segregated from IPC and other offences, the cognizance taken by the learned Magistrate having been vitiated for the above reason, even the cognizance taken by the magistrate in respect of IPC offences also cannot stand the test of law. 3.5. 3.5. Lastly, learned Counsel would submit that the allegations made in the complaint and the materials produced in support thereof do not constitute the ingredients of any of the above offences. The learned Special Judge has not applied his mind to facts of the case and without satisfying himself about the prima facie case has proceeded to issue summons which is wholly illegal and amounts to abuse of the process of Court. 4. 4.1. Refuting the submissions, the learned Special Public Prosecutor appearing for respondent, while drawing my attention to volume No.6 of page Nos.1564 and 1568 of the charge sheet would submit that the transactions entered into by the petitioner are reflected in the invoice raised by M/s. Akshata Minerals and the transportation details are stated in page No.1565 and therefore, the contentions of the learned Counsel for the petitioner that he is prosecuted for the alleged offences without any basis is not correct. 4.2. Further, the learned Special Public Prosecutor would submit that the charge sheet filed by the SIT clearly make out ingredients of the offences alleged against the petitioner. These allegations are supported by cogent evidence. The cognizance order passed by the learned Special Judge clearly indicate that the learned Judge has applied his mind to the facts of the case and issued summons to the petitioner, this order therefore does not warrant any interference by this Court. 4.3. Insofar as the compliance of requirements of section 22 of MMDR Act is concerned, the learned Special Public Prosecutor would submit that necessary complaint as required under Section 22 has been filed before the learned Special Judge by the authorized officer, which contains similar allegations as found in the charge sheet and the learned Special Judge having taken cognizance of the offences disclosed therein, no fault could be found with the order of cognizance as well as the summons issued by the learned Special Judge. 5. This contention is countered by the learned Counsel for the petitioner contending that the post facto submission of the complaint does not cure the illegality committed by the Special Judge. The order of cognizance does not disclose that the learned Special Judge has taken cognizance on the complaint and therefore, there being fundamental defect in the order passed by the learned Special Judge, the entire proceedings deserve to be quashed. 6. The order of cognizance does not disclose that the learned Special Judge has taken cognizance on the complaint and therefore, there being fundamental defect in the order passed by the learned Special Judge, the entire proceedings deserve to be quashed. 6. I have bestowed my anxious thought to the rival submissions canvassed at the Bar and have carefully scrutinized the material on record. 7. Coming to the facts constituting the ingredients of the offences alleged against the petitioner are concerned, the documents referred to by the learned Special Public Prosecutor for the respondent prima facie disclose that the alleged transaction is evidenced by the invoices and the statement of material witnesses and therefore, the contention of the learned Counsel for the petitioner that the facts alleged in the complaint do not prima facie constitute ingredients and these allegations are not supported by reliable document, cannot be accepted. 8. Insofar as the objection raised by the learned counsel for the petitioner regarding the jurisdiction of the learned Special Judge to take cognizance of the alleged offences are concerned, a reading of the order dated 05.11.2016 passed by the learned Special Judge indicates that on considering the charge sheet filed by the SIT and the documents and statements filed alongwith it, cognizance has been taken for the offences under sections 379, 409, 420 read with section 120-B IPC and sections 21 and 23 read with section 4(1) (A) of MMDR Act, 1957 and summons is issued to the petitioner. 9. What is taking cognizance is not defined in the Criminal Procedure Code. But, it is now well settled that any Magistrate who takes cognizance of an offence must apply his mind to the facts of the case for the purpose of proceedings in a particular way. In R.R.CHARI vs. STATE OF UTTAR PRADESH, (1951) AIR SC 207 , the Hon ble Supreme Court relying on the dicta in GOPAL MARWARI AND OTHERS vs. EMPEROR, (1943) AIR Patna 245 , has observed that, the word cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings . It is a different thing from the initiation of proceedings . Section 209 of the Code also provides for taking cognizance of the offence by the Magistrate while committing the case to the Sessions Court for trial but, the cognizance taken by the Magistrate under Section 209 is quite different from the cognizance taken by the Magistrate under Section 190(1)(a) of the Code or the cognizance taken by the Sessions Court before commencing the trial after committal. In the instant case, undisputedly, the learned Special Judge has proceeded to take cognizance of the alleged offences after the submission of the final report by SIT. 10. The reading of the cognizance order passed by the Special Judge clearly indicate that on perusal of the charge sheet submitted by the SIT, learned Special Judge has taken cognizance of the alleged offences purportedly under Section 190(1)(a) of the Code and has proceeded to issue summons to the petitioner/accused, as such, there cannot be any difficulty in holding that by considering the facts of the case as borne on the final report, the learned Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of MMDR Act. 11. It is trite law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 of the Code, law does not require the Magistrate to pass elaborate order recording reasons for issuance of summons; though the order must reflect that he has considered the final report and satisfied himself that there is sufficient ground for proceeding against the accused named in the final report. 12. In BHUSHAN KUMAR vs. STATE OF (NCT OF DELHI), (2012) 5 SCC 424 , the Hon ble Supreme Court has reiterated the requirement of application of mind in the process of taking cognizance and following the decision in CHIEF ENFORCEMENT OFFICER vs. VIDEOCON INTERNATIONAL LIMITED, (2008) 2 SCC 492 , has held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs 12 and 13 of the decision in CHIEF ENFORCEMENT OFFICER, read as under:- 12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. Paragraphs 12 and 13 of the decision in CHIEF ENFORCEMENT OFFICER, read as under:- 12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued." 13. In the backdrop of the above principle, if the order of cognizance and the summons issued by the learned Magistrate in the instant case is analyzed, it is clear from the above order that on consideration of the final report submitted by SIT, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioner. Therefore, there can be no difficulty in upholding the validity of the cognizance taken by the learned Special Judge and the summons issued to the petitioner insofar as the IPC offences are concerned. 14. However, in respect of the offences under the provisions of MMDR Act are concerned, 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.? 14. However, in respect of the offences under the provisions of MMDR Act are concerned, 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. 15. Learned counsel for the petitioner/accused has placed heavy reliance on the decision of the Hon ble Apex 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) 16. What emerges from the above decision is that based on the final report filed under Section 173 of the Code, the Special Court cannot take cognizance of the offences under the provisions of the MMDR Act. Apparently, to get over this restriction, the respondent has filed a complaint before the Special court in terms of Section 22 of the MMDR Act. Apparently, to get over this restriction, the respondent has filed a complaint before the Special court in terms of Section 22 of the MMDR Act. The learned Special Public Prosecutor for the respondent has made available the copy of the complaint 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. This complaint 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? 17. Though it is vehemently argued by the learned counsel for the petitioner/accused that such exercise has not been done by the Special Court as the impugned order of cognizance does not reflect that the learned Special Judge has looked into the averments made in the complaint yet, what is significant to be noted is that the allegations made in this complaint as well as the facts constituting the offences alleged against the petitioner/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 petitioner/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. 18. 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 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. 19. 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. 20. As the impugned order 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 that 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. 21. 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 case, 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 parallel investigation nor could it have rejected the final report. It is not the case of the petitioner 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 offences 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 followed to submit the final report. Therefore, no illegality could be attached to the final report and evidence collected by the police officer in proof of the offences investigated by them under the Act. This report, therefore, cannot be excluded from consideration while taking cognizance of the offences under the Act, provided a complaint as required under Section 22 is filed by the authorized officer. If the argument of the learned counsel for the petitioner is accepted, despite there being a report on investigation, yet the Court has to either order for fresh investigation or hold an enquiry under Section 202 of Cr.PC, which would tantamount to mullifying 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 cardinal principle of law that every law is designed to further the ends of justice and shall not be frustrated on mere technicalities. It is 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. 22. In the light of these principles and for the reasons discussed above and especially, keeping in mind the peculiarities of the present case 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 petitioner cannot be faulted with. Likewise, as held in the above, non recording the reasons by the Special Court while issuing summons to the petitioner also cannot be a reason to set aside the order of cognizance and the summons issued to the petitioner. 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 order illegal or without jurisdiction so as to quash the entire proceedings as sought for by the petitioner. Since the petitioner was notified of the offences at the earliest point of time before his 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, (1956) AIR SC 116 . 23. As a result, I hold that the impugned order of cognizance and the issuance of summons by the learned Special Judge do not suffer from any error or illegality vitiating the proceedings pending against the petitioner. 24. 23. As a result, I hold that the impugned order of cognizance and the issuance of summons by the learned Special Judge do not suffer from any error or illegality vitiating the proceedings pending against the petitioner. 24. The contention urged by the learned counsel for the petitioner that the alleged purchase has taken place within the port premises and therefore, the petitioner cannot be proceeded for the alleged contravention of the provisions of the MMDR Act is concerned, a reading of Section 4(1) of the MMDR Act goes to show that undertaking of any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder, is made punishable under Section 21 of the Act. Likewise, Section 4(1A) of the Act indicates that No personal shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. In view of the above definition, the above contention also is liable to be rejected. As a result, I do not find any merit in the contentions raised by the petitioner. Consequently, the petition being devoid of merits is liable to be dismissed and is accordingly, dismissed. In view of dismissal of main petitions, all pending I.As, if any, are also dismissed.