THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
CRIMINAL REVISION CASE No.721 of 2022
ORDER:
Heard Dr. Susheel Kumar Gupta, learned counsel representing Ms. Jyothi Eswar Gogineni, learned counsel for the petitioner and Mr. N.Nagendran, learned Special Public Prosecutor (PP) for Central Bureau of Investigation (CBI) representing the respondent.
2. This revision case has been filed under Section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C) read with Section 401 thereof assailing the order dated 17.10.2022 passed by the learned Principal Special Judge for CBI cases at Hyderabad ('CBI Court', for short) in Crl.M.P.No.1524 of 2020 in C.C.No.1 of 2012 as well as the consequential order dated 28.10.2022 passed by the CBI Court.
3. Be it stated that by the order dated 17.10.2022, CBI Court has dismissed the petition filed by the petitioner under Section 239 Cr.P.C to discharge him in C.C.No.1 of 2012. On the other hand, by the consequential order dated 2 28.10.2022, the CBI Court has framed charges against the petitioner under Section 120B read with Section 420 of the Indian Penal Code, 1860 (IPC) and Sections 120B, 409, 420, 468 and 471 IPC as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (briefly, 'the PC Act' hereinafter).
4. The then Government of Andhra Pradesh had issued a notification under Section 6 of the Delhi Special Police Establishment Act, 1946, vide G.O.Ms.No.467 dated 17.11.2009, extending the powers and jurisdiction of the members of the Delhi Special Police Establishment (CBI) for registration and investigation of a criminal case relating to illegal mining activities of M/s. Obulapuram Mining Company and M/s. Bellary Iron Ore Private Limited in the Bellary Reserve Forest of Ananthapur District in the State of Andhra Pradesh, including in the disputed boundary region and other related matters. Department of Personnel, Public Grievances and Pensions, Government of India, New Delhi, had also issued a notification dated 01.12.2009 under Section 5 of the Delhi Special Police Establishment 3 Act, 1946, extending the powers and jurisdiction of the members of the Delhi Special Police Establishment (CBI) for registration and investigation of the said case.
5. It may be mentioned that thereafter CBI, Anti Corruption Bureau (ACB), Hyderabad Branch, had registered Crime No.RC.17(A)/2009 on 07.12.2009 under Sections 120B, 420, 379, 411, 427 and 447 IPC as well as under Section 13(2) read with Section 13(1)(d) of the PC Act as well as under Section 26 of the Indian Forest Act, 1927, and Section 21 read with Sections 4(1), 4(1)(A) and 23 of the Mines and Minerals (Development and Regulations) Act, 1957 (briefly, 'the Act' hereinafter), to investigate boundary disputes and illegal mining by M/s. Obulapuram Mining Company Private Limited (hereinafter referred to as, 'Obulapuram') and M/s. Bellary Iron Ores Private Limited (hereinafter referred to as, 'Bellary') in Bellary Reserve Forest of Ananthapur District, Andhra Pradesh.
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6. Obulapuram filed a writ petition before the then combined High Court of Andhra Pradesh, being W.P.No.27120 of 2009, challenging issuance of G.O.Ms.No.467, dated 17.11.2009. A Single Judge of the then High Court of Andhra Pradesh had initially granted interim stay of investigation on 14.12.2009 which order was made absolute on 14.06.2010. Against such stay order, CBI filed W.A.No.532 of 2010. A Division Bench of the Andhra Pradesh High Court vacated the aforesaid stay on 16.12.2010. In the said order, the High Court directed the CBI to limit investigation only to the illegal mining activity of the two firms and not to probe the boundary disputes till the same was decided by the Committee so constituted on orders of the Supreme Court.
7. In view of the aforesaid order, investigation was limited to the allegation of illegal mining activity. In the course of investigation, it was found that Obulapuram was granted three leases which are as follows:
i) Area of 25.98 hectares covered by lease period from 19.02.2002 to 25.04.2017.
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ii) Area of 39.50 hectares covered by lease period from 05.10.2006 to 04.10.2026; and
iii) Area of 68.50 hectares covered by lease period from 18.06.2007 to 17.06.2027.
7.1. In case of Bellari, it was granted a lease of 27.12 hectares covered by the lease period from 19.05.1998 to 18.05.2018.
8. Investigation revealed that Obulapuram in its leased area of 68.50 hectares in Antargangamma Konda area had shifted permanent boundary pillars of Station No.8 towards the western direction by about 40 metres and had constructed a permanent pillar in order to criminally encroach upon un-allotted area for commission of offence i.e., illegal mining. Similarly, permanent pillar of Station No.10 was also removed. This enabled construction of illegal roads for transportation of ore to Station No.7 instead of Station No.8. Besides, illegal roads were constructed near Station No.1 in the reserve forest outside the lease area at a distance of 2.95 kms. Obulapuram at 6 their site of 68.50 hectares had claimed to have dispatched 29.32 lakh metric tones of iron ore. However, from the physical appearance of the site it appeared that not even 40% of the aforesaid quantity could have been extracted from the said place. There was also an allegation that in the lease areas of 39.50 hectares and 25.98 hectares there was illegal dumping of iron ore in the adjacent reserve forest area. There was improper fixation of the location of the mining area in criminal conspiracy with unknown public servants and in the process there was encroachment into adjoining mining leases.
9. Bellary had shown dispatch of 2.5 lakh metric tones of iron ore from its lease area whereafter no active mining activity was found in the said mining area. It was further alleged that Bellary had utilized 1.8 hectare of reserve forest land outside the leased boundary for dumping the mining waste without approval from the competent authority. In this process, one temple located in the reserve forest near the mining leases was destroyed by the 7 accused persons with the intention to carryout mining as the said area was having rich iron ore content.
10. On completion of investigation, CBI filed charge sheet being charge sheet No.10/2011 on 03.12.2011 under Section 173 Cr.P.C. Five persons were named as accused. Petitioner was arrayed as accused No.3. It appears that by way of supplementary charge sheet, in all, nine persons were arrayed as accused.
11. At this stage we may mention that at the relevant point of time petitioner was serving as Director of Mines and Geology in the Government of Andhra Pradesh.
12. Petitioner filed an application before the CBI Court for his discharge under Section 239 Cr.P.C. It was contended that petitioner had merely followed the procedure prescribed under the Act and the Mineral Concession Rules, 1960 (briefly, 'the Rules' hereinafter). No ingredient of any criminal offence could be traceable to the conduct of the petitioner. Petitioner, who had joined the Mines and 8 Minerals Department on 20.01.1977, had retired on attaining the age of superannuation on 30.06.2011 after an unblemished service career. All the ingredients of IPC related offences like Sections 405, 409 and 420 are clearly absent in the present case. There is also no evidence whatsoever to attract Section 120B IPC. Insofar Section 13(2) read with Section 13(1)(d) of the PC Act is concerned, it was contended that Section 13(1)(d) of the Act was omitted from the statute with effect from 26.07.2018. There being no dereliction of duty by the petitioner, not to speak of committing any criminal offence, petitioner sought for his discharge.
13. The said application was registered as Crl.M.P. No.1524 of 2020. By the order dated 17.10.2022 CBI Court dismissed the discharge application holding that there is a prima facie triable case against the petitioner as accused No.3.
14. Thereafter CBI Court passed an order dated 28.10.2022 framing charges against the accused persons. Thus, petitioner has been charged with committing an 9 offence under Section 120B read with Section 420 IPC, Sections 409, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of the PC Act.
15. Aggrieved, the present criminal revision case has been filed seeking the relief as indicated above.
16. Dr. Susheel Kumar Gupta, learned counsel for the petitioner has elaborately taken the Court to various provisions of the Act and the Rules. Thereafter, he has taken the Court to the various charges framed by the CBI Court. He submits that, on facts, no case of even administrative misconduct is made out against the petitioner, not to speak of any criminal culpability. It is not even a case of mala fide exercise of power by the petitioner. He contends that in a criminal case it is hard facts and evidence which are relevant; perception does not matter. Relying upon the decision of the Supreme Court in Union of India v. Prafulla Kumar Samal1, he submits that findings arrived at by the CBI Court are wholly erroneous, arrived at on wrong inferences. Learned counsel for the 1 (1979) 3 SCC 4 10 petitioner submits that CBI Court did not sift and weigh the evidence on record even for the limited purpose of finding out whether or not a prima facie case has been made out against the petitioner. As held in Prafulla Kumar Samal (supra), the CBI Court acted merely as the mouthpiece of the prosecution by restating whatever was said by the CBI.
16.1. Learned counsel for the petitioner further submits that finding recorded by the CBI Court that petitioner being the Director of Mines and Geology had inducted his brother-in-law in A4-company is wholly incorrect. His brother-in-law D.Rajashekar was appointed as Director in A4-company on 11.07.2005, whereas petitioner became Director of Mines and Geology on 01.08.2005. D.Rajashekar, being a lawyer, was being regularly consulted by A4-company since 2004 onwards. 11 16.2. Referring to the Act and the Rules in great details, learned counsel for the petitioner vehemently argued that allegations in the charge sheet and findings recorded by the CBI Court that petitioner had misused his position to eliminate other applicants from getting mining licences are wholly incorrect. Even if there was any procedural omission, the same cannot be considered or construed to be a criminal offence. Some of the applications for mining licences were rejected because those were filed prematurely. Mining licence was granted to A4-company following the laid down procedure and examination of the proposal by a number of officers who had processed the file, including the Joint Director of Mines and Geology. Accused No.6 - Smt. Y.Srilakshmi, had submitted the proposal before the Government of India on 18.01.2007. Only after approval of Government of India vide letter dated 25.05.2007, mining lease was granted to A4-company on 18.06.2007. Though the unsuccessful applicants had either filed revision petitions before Government of India under Rule 54 of the Rules or filed writ petitions before this Court, none of those applicants were successful. 12 Dr. Susheel Kumar Gupta, learned counsel for the petitioner has placed reliance on Section 11 of the Act, more particularly to sub-section (4) thereof as well as to the provisions of Rules 59 and 60 of the Rules.
16.3. All the allegations against the petitioner are factually incorrect, submits learned counsel for the petitioner. 16.4. That apart, learned counsel for the petitioner has meticulously adverted to the charge sheet and submits that charges have been framed without application of mind. He has elaborately referred to Sections 120B, 409, 420, 468 and 471 of IPC and submits that the aforesaid sections are not at all attracted vis-à-vis the petitioner. 16.5. Additionally, learned counsel for the petitioner submits that criminal revision case of accused No.6, being Crl.R.C.No.693 of 2022, was allowed by this Court vide the order dated 08.11.2022 discharging the petitioner from C.C.No.1 of 2012. A coordinate Bench of this Court has held that there are no grounds for framing charges against 13 her for offences punishable under Section 120B read with Section 409 IPC as well as Section 13(2) read with Section 13(1)(d) of the PC Act. Therefore, in view of the aforesaid decision of a coordinate Bench, similar finding is required to be rendered by this Court in the present criminal revision case.
16.6. In support of his contentions, Dr. Susheel Kumar Gupta, learned counsel for the petitioner has placed before the Court a compilation of judgments.
17. Mr. N.Nagendran, learned Special Public Prosecutor for CBI, however, submits that there is no error or infirmity in the view taken by the CBI Court. Referring to the charge sheet and statements made by various witnesses, he submits that the entire proceedings are at a nascent stage. At this stage, it cannot be said from the materials on record that petitioner is innocent or that no offence of criminal culpability is made out against the petitioner. Rather, from the allegations made in the charge sheet and after framing of charges by the CBI Court, it is a fit case for trial. If the 14 petitioner is innocent, the criminal trial will say so. He, therefore, submits that there is no merit in the revision petition which should be dismissed.
18. Submissions made by learned counsel for the parties have received the due consideration of the Court.
19. At the outset, brief facts of the case as summed up by CBI at the end of the investigation may be referred to. The same are as follows:
Government of Andhra Pradesh issued a notification under section 6 of the Delhi Special Police Establishment Act, 1946 vide G.O.Ms.No.467 dated 17.11.2009 extending the powers and jurisdiction of the members of DSPE (CBI) for registration and investigation of criminal case related to the boundary disputes and illegal mining activities of M/s Obulapuram Mining Company & M/s Bellary Iron Ore Pvt. Ltd. in the Bellary Reserve Forest of Ananthapur, AP and other related matters.
Further, the Department of Personnel, Public Grievances and Pensions, Government of India, New Delhi has also issued a notification vide No.228/61/2009-AVD.II dated 01.12.2009 under Section 5 of the Delhi Special Police Establishment Act, 1946 extending the powers and jurisdiction of the members of the Delhi Special Police Establishment (CBI) for the registration and investigation of the said case. 15 This case was registered by CBI, ACB, Hyderabad Branch vide Crime No. RC.17(A)/2009 on 07.12.2009 U/s 120-B, 420, 379, 411, 427, 447 IPC, Sec.13(2) r/w Sec.13(1)(d) of PC Act, 1988, Sec.26 of Indian Forest Act, 1927; Sec.21 r/w Sec.4(1) & 4(1)(A) and Sec.23 of Mines and Minerals (Development & Regulations) Act, 1957, to investigate boundary related disputes and illegal mining by M/s Obulapuram Mining Company Pvt. Ltd (M/s OMCPL) and M/s Bellary Iron Ores Pvt. Ltd (M/S BIOPL) in Bellary Reserve Forest of Ananthapur District of Andhra Pradesh.
Subsequent to the registration of the case, M/s Obulapuram Mining Company Pvt. Ltd (hereinafter referred as M/s OMCPL) filed a Writ Petition in the Hon'ble High Court of Andhra Pradesh vide WP No. 27120/2009 challenging the issuance of GO Ms No. 467 dt.17.11.2009 of Government of AP authorizing CBI for investigation of the aforesaid matter. The learned Single Judge of the Hon'ble High Court of Andhra Pradesh granted an interim stay to the investigation on 14.12.2009 and finally the order was made absolute on 14.06.2010. Aggrieved by the stay order, CBI filed a Writ Appeal No. 532/2010 and the Division Bench of Hon'ble High Court of AP vacated the aforesaid stay on 16.12.2010. However, in the said order, the Hon'ble High Court ordered the CBI to limit the investigation only to the illegal mining activity of the said firms and not to probe into the boundary disputes till the same is decided by the committee so constituted on the orders of the Hon'ble Supreme Court of India.
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In view of the orders of the Division Bench of Hon'ble High Court of Andhra Pradesh, the investigation in this case is limited to the allegation of illegal mining activity. The investigation of boundary disputes would be continued subject to the final outcome of the Writ.
It is alleged that M/s OMCPL (A-4) has been granted three leases on areas of 25.98 Ha (lease period from 19.02.2002 to 25.04.2017); 39.50 Ha (lease period from 05.10.2006 to 04.10.2026) and 68.50 Ha (lease period from 18.06.2007 to 17.06.2027). M/s BIOPL has been granted a lease of 27.12 Ha (lease period from 19.05.1998 to 18.05.2018).
It is alleged that M/s OMCPL (A-4) in its lease area of 68.50 Ha in Antargangamma Konda area had shifted permanent boundary pillars of Station No. 8 to western direction about 40 meters and constructed a permanent pillar in order to criminally encroach upon un-allotted area for commission of offence i.e., illegal mining. Similarly, permanent pillar of Station No. 10 is also mischievously removed. They also formed illegal roads for transportation of ore to join Station No.7 instead of Station No.8. They also formed illegal roads near Station No.1 in the reserve forest area out side the lease area over a distance of 2.95 Kms. It is also alleged that M/s OMCPL (A-5) at their site of 68.50 Ha. lease in Antargangamma Konda area dispatched 29.32 Lakh MTs of iron ore, however, from the physical appearance of the site, it appears that not even 40% of the aforesaid quantity could have been extracted from the said place. There is also an allegation that near the lease area of 39.50 Ha. and 25.98 Ha., there has been illegal dumping 17 of iron ore in the adjacent reserve forest area. It is also alleged that there is improper fixation of location of the mining area in criminal conspiracy with unknown public servants by M/S OMCPL (A-5) at its site of 25.98 Ha and that it has encroached into the adjoining mining leases.
It is further alleged that M/S BIOP had shown dispatch of 2.5 Lakh MTs of Iron Ore from its lease area whereas no active mining activity was found in the said mining area. It is also alleged that M/s BIOP at its area of 27.12 Ha has utilised 1.8 Ha of reserve forest area outside the leased boundary for dumping the overburden/mining waste without approval thereby committing criminal trespass and causing wrongful loss to the Government.
It is alleged that Sugalamma Devi temple located in the reserve forest near their mining leases was destroyed by the accused persons with an intention to carryout illegal mining in that area as the said area is having rich iron ore content.
Investigation is completed in respect of Sri B.V.Sreenivasa Reddy (A-1), Sri Gali Janardhan Reddy (A-2), Sri V.D. Raja Gopal (A-3). M/s Obulapuram Mining Company Pvt. Ltd. (A-4) and Late Sri R. Linga Reddy (since deceased) and hence, this charge sheet is being filed against them.
Investigation in respect of Smt. Y. Srilakshmi and other unknown accused is in progress and supplementary report will be filed against them. 18
20. Insofar grant of mining lease to accused No.4 over an extent of 68.50 hectares in Survey Nos.1 and 2 of Siddapuram and Malapanagudi villages, which is the main allegation, CBI after due analysis and appreciation of the relevant materials concluded as follows:
a. Sri B.V. Sreenivasa Reddy (A-1), Sri Gali Janardhan Reddy (A-2) and M/s OMCPL (A-4) in furtherance of the conspiracy with the then ADMG Late Sri R. Linga Reddy (A-5) ensured that they were the first applicants along with M/s Vinayaka Mining Company to claim priority for consideration of allotment of mining lease.
b. Late Sri R. Linga Reddy (A-5), the then ADMG Sri V.D. Raja Gopal (A-3) and Smt. Y. Srilakshmi, in furtherance of the said conspiracy, abused their official position as public servants to extend pecuniary advantage and projected M/S OMCPL (A-4) as the only meritorious applicant and ensured that no one else would get the aforesaid mining-lease in violation of the established procedures and law.
c. The statements of various mining applicants establish that there was denial of justice to them and the public policy was defeated.
d. M/s SJK Steel, M/s SR Minerals and M/s Satavahana Ispat Ltd confirmed that gross illegalities were committed by the officials while taking the decision of allotting the mining lease to M/s OMCPL (A-4).19
Further, M/s RS Minerals confirmed that pressure was got exerted on them to withdraw the application.
e. Sri V.D. Raja Gopal (A-3) in furtherance of criminal conspiracy and by abusing his official position as a public servant, had taken special interest in filing a mining lease application of M/s APMDC with a malafide intention to stall the claim of M/s SR Minerals who had by then obtained forest clearance for a particular area in the notified area.
f. Sri B.V. Sreenivasa Reddy (A-1) and Sri Gali Janardhan Reddy (A-2) in conspiracy with Sri V.D. Raja Gopal (A-3) had ensured that the mining lease would not be granted to any other company, since such allotment would expose their illegal activities.
21. Thus, insofar petitioner is concerned, according to CBI, petitioner had abused his official position as a public servant to extend pecuniary advantage to accused No.4 by projecting accused No.4 as the only applicant deserving mining lease. It is alleged that petitioner in furtherance of criminal conspiracy and by abusing his official position as a public servant had taken a special interest in filing mining lease application of M/s. APMDC with a mala fide intention to stall the claim of another applicant - M/s. SR Minerals who had by then obtained forest clearance for a 20 particular area. That apart, according to CBI, petitioner along with two others i.e., accused No.1 and accused No.2 had ensured that the mining lease would not be granted to any other company since such allotment would expose their illegal activities.
22. Insofar allotment of mining lease to accused No.4 in 39.50 hectares in Survey No.1/P of Obulapuram village is concerned, at the end of investigation CBI concluded as follows:
a. Late Sri R. Linga Reddy (A-5), the then ADMG, in conspiracy with the other accused persons viz. Sri B.V. Sreenivasa Reddy (A-1) and Sri Gali Janardhan Reddy (A-2) violated all the norms and laid down procedures and gave preferential treatment to M/s OMCPL (A-4) by sidelining the claims of the other individuals.
b. Smt. Y. Srilakshmi by abusing her official position projected that M/s OMCPL (A-4) requires the mining lease for captive purpose and that because of which it deserves preferential treatment when compared to the other applicants. However, in the Government Order, the word 'captive mining' was not mentioned deliberately / intentionally.
c. Pressure tactics were applied by M/s OMCPL (A-
4) in order to get the other applicants out of the race and ensured that their company gets the mining lease.21
Apprehending exposure of their illegal mining activity, they ensured no other person gets into the vicinity of their area subsequent to the allotment of the mining lease to M/S OMCPL (A-4).
d. The various applications and correspondence made by the other applicants regarding illegal encroachments by M/s OMCPL (A-4) were not enquired into by the concerned officials including by Sri V.D. Rajgopal (A-3).
23. Thus, according to CBI, the accused persons by violating all norms and laid down procedures gave preferential treatment to accused No.4 by sidelining claims of other claimants. Applications and correspondence made by other applicants/claimants regarding illegal encroachments by accused No.4 were not enquired into by the concerned officials, including by the petitioner.
24. That apart, CBI investigated into the aspect of illegal mining activity by accused No.4 and found severe irregularities following which recommendations were made. Further allegation against the petitioner is that he in furtherance of criminal conspiracy with accused Nos.1 and 2 had verbally instructed and forced the then Assistant 22 Director of Mines and Geology, Ananthapur, to issue permits to accused No.4 without conducting any inspection. Details have been mentioned by the CBI about the huge profits made by accused No.4 on account of illegal mining.
25. It is not necessary for a detailed reference to the role played by the petitioner in the entire operation of illegal mining by accused No.4. Suffice it to say, from the voluminous charge sheet, a reasonable view can certainly be taken that petitioner, being accused No.3, had played a crucial role in illegal mining carried out by accused No.4 and thereby making unlawful gain.
26. When the discharge petition was filed, CBI Court held as follows:
125. In view of the above discussions and prudent principle laid down by the Hon'ble Supreme Court, the prosecution proved that the petitioner being the Director of Mines has inducted his brother-in-law in A4 company and the forest clearance and the documents were suitably got prepared framed and also mislead the forest officials in getting forest clearance in favour of A4. Apart from that by hook or crook eliminated the other applicants, who desire to get mining lease. Apart from 23 that the nomenclature of the village in which mining lease of the property was demarcated was also not properly corrected and the official record clearly shows that variance in nomenclature, survey number of land in various stages reveals that whether he has wantedly done it or it was a mistake cropped up, which can only be decided in a detailed trial.
126. The manner in which the grant of ML application to A4 to an extent of 39.50 Ha of land clearly shows that he has considered mining land covered under gazette publication in 2000 and 2004, but the said extent was figured as the outcome of the gazette publication made in 2004 in the knowledge of the Central Government. The discrepancies in the nomenclature village survey number, extent of land on par with the forest mapings clearly leads to illegal mining. Those facts relied by the prosecution clearly evident that there is a prima facie case.
127. It is also to be noted that the petitioner/A3 being incharge of APMDC, he applied for mining lease of 25 Ha of land. As per the prosecution, the said application is filed only to defeat the interest of M/s. SJK Steels Corporation Limited. The manner in which the non- processing of the said file in allotting the said extent to APMDC and processing the other files during that period clearly shows that clubbing of 25 Ha of land applied by APMDC with the other prospective lease applications. Later on A2 filed application for allotment of 25 Ha of land for APMDC already applied and the recommendations was made through the then Chief Minister's office for allotment of the said land clearly 24 support the contentions of the prosecution that there is a prima facie case against the petitioner/A3.
128. The documents filed by the prosecution vide Document No.157 clearly shows that the committee constituted by the Government of Andhra Pradesh submitted a report which shows the irregularities in allotting the mines and illegal mining, taking advantage of the nomenclature and survey number mentioned in the G.Os. The map annexed to the documents clearly shows that Siddapuram, Obulapuram and Malapanagudi villages are different and they are having adjacent boundaries to each other, which leads to illegal mining.
129. The petitioner contended that the survey number referred in the G.O. are according to the reports submitted by the forest officials, whereas in G.O.Ms.No.151, it is clearly mentioned that the survey No. 1 and 2 of Anthargangamma Konda of Siddapuram and Malapanagudi villages, D.Hirehal (M), Ananthapur District, to an extent of 68.50 Ha. Whereas in G.O.Ms.No.152, it is mentioned as survey No. 1/P, Obulapuram village (Compartment No.692 Bellary RF, Kalyandurg Range). D. Hirehal Mandal, Anantapur District to an extent of 39.481 Ha. Neither the gazette publication in 2000 or 2004 does not cover the mining lease of survey No. 1/P of Obulapuram Village. The map annexed to the document No.157 clearly shows that the G.Os are issued inconsistent with the survey number and village names with that of Gazette notification, which leads to illegal mining and those irregularities are 25 bonafide or wantonly cropped up will be decided in detailed trial only.
27. Thus, from the above, we find that according to the CBI Court, a prima facie view is possible that petitioner by misusing his official position and in conspiracy with the other accused persons was instrumental in accused No.4 obtaining mining lease. Whether he acted bonafidely or whether he acted with a deliberate intent to favour accused No.4 for making wrongful gain can only be decided in the course of the trial. Therefore, CBI Court dismissed the discharge petition.
28. Section 11 of the Act deals with grant of prospecting licence - cum - mining lease through auction in respect of minerals other than notified minerals. However, with effect from 28.03.2021, the expression "prospecting licence - cum - mining lease" has been substituted by the expression "composite licence". The procedure laid down in Section 11 of the Act at the relevant point of time was that at the first instance, the State Government shall notify the areas in which such licence and lease can be granted for any minerals other than notified minerals as well as the 26 terms and conditions of such grant. As per sub-section (5), for the purpose of granting prospecting licence - cum - mining lease, the State Government shall select through auction by method of competitive bidding, including e-auction, an applicant who fulfils the eligibility conditions as specified in the Act. As per the first proviso, where the State Government has not successfully completed auction for the purpose of granting a prospecting licence - cum - mining lease in respect of any mineral in such notified area or upon completion of such auction, the prospecting licence - cum - mining lease or letter of intent for grant of such licence - cum - mining lease has been terminated or lapsed for any reason, the Central Government may require the State Government to conduct and complete the auction or re-auction process within such period as may be fixed in consultation with the State Government. Sub-section (6) mandates the Central Government to prescribe the terms and conditions as well as the procedure subject to which the auction shall be conducted including the bidding parameters. It is thereafter that the State Government under sub-section (8) shall grant the licence - cum - 27 mining lease to an applicant selected in accordance with the aforesaid procedure. Thus as per the statute, grant of prospecting licence-cum-mining lease is preceded by an auction process.
29. Heading of Rule 59 is 'availability of area for regrant to be notified'. Sub-rule (1) says that no area which was previously held or which is being held under a reconnaissance permit or a prospecting licence or a mining lease etc shall be available for grant unless the conditions in (i) and (ii) are fulfilled. As per the first proviso, nothing in Rule 59 shall apply to the renewal of a lease in favour of the original lessee or his legal heirs notwithstanding the fact that the lease has already expired. However, under sub-rule (2), Central Government may for reasons to be recorded in writing, relax the provisions of sub-rule (1). 29.1. Rule 60 of the Rules deals with premature applications. It says that applications for grant of prospecting licence or mining lease in respect of areas whose availability for grant is required to be notified under 28 Rule 59 shall, if - a) no notification has been issued under that rule; or b) where such notification has been issued, the period specified in the notification has not expired, shall be deemed to be premature and shall not be entertained.
30. It is the contention of learned counsel for the petitioner that petitioner had followed the procedure laid down under Section 11 of the Act and had rejected certain applications as premature by following provisions of Rule 60 of the Rules. In this connection, learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Sandur Manganese and Iron Ores Limited v. State of Karnataka2 and submits that the Act and the Rules contain a complete Code in respect of grant and renewal of prospecting licences as well as mining leases in lands belonging to the Government as well as lands belonging to private persons. According to him, Supreme Court on a conjoint analysis of Rules 59 and 60 of the Rules read with Section 11 of the Act came to a definite conclusion that a premature application should not be 2 (2010) 13 SCC 1 29 entertained and this is what the petitioner did while rejecting the application of the other claimants. Whether the petitioner had followed the procedure laid down in Section 11 of the Act and whether in the event of any infraction of the statutory provision can be traced to criminal culpability of the petitioner is a matter of evidence and trial. At the stage of submission of charge sheet or framing of charge no definite conclusion can be reached about the innocence of the petitioner.
31. Insofar the decision of the Supreme Court in Prafulla Kumar Samal (supra) is concerned, there can be no dispute to the proposition of law laid down therein. While framing charge, the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Of course, the test to determine a prima facie case would naturally depend on the facts of each case. While doing so, the Judge has to consider the broad probability of the case, the total effect of the evidence and the documents produced before the Court. If the 30 materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial.
32. Insofar the present case is concerned, as already noticed above, CBI Court has meticulously gone through the charge sheet filed by the CBI and while rejecting the discharge petition took the view that the materials on record clearly disclose a triable case against the petitioner. Therefore, it is not a case which can be nipped in the bud. The allegations are serious and after investigation charge sheet has been submitted. Therefore, at the threshold it would be highly improper to conduct a mini trial and analyse the materials on record and then come to a conclusion that the petitioner is innocent. The materials on record prima facie suggest otherwise. It may be so that during the trial or at the end of the trial petitioner may be acquitted or may not be acquitted. But, it would be too presumptuous to arrive at a definite conclusion at this stage that there are no ingredients of the various criminal 31 sections for which the petitioner has been charged or to say that ingredients constituting such offences are completely missing in the present case. To that extent, reliance placed by learned counsel for the petitioner on the decision of the Supreme Court in Common Cause v. Union of India3 more particularly on paragraphs 172 and 173 thereof regarding the ingredients of Section 409 IPC is premature.
33. Though learned counsel for the petitioner has raised the issue of Crl.R.C.No.693 of 2022 filed by accused No.6 - Smt. Y.Srilakshmi, being allowed by this Court vide the order dated 08.11.2022, without expressing any opinion on the aforesaid decision all that can be said is that the said decision was rendered in the facts of that case. No binding ratio has been laid down by the Court to the effect that following the discharge of Smt. Y.Srilakshmi (accused No.6), petitioner should also be discharged.
34. Thus on a thorough consideration of all the aspects of the matter, Court is of the considered view that impugned 3 (1999) 6 SCC 667 32 order passed by the CBI Court suffers from no infirmity or irregularity to warrant interference.
35. Criminal revision case is devoid of merit and is accordingly dismissed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ 10.03.2023 vs