Karnataka High Court
State Represented By vs Ritesh Milapchand Jain on 23 September, 2022
Bench: K.Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 1475 OF 2016
CONNECTED WITH
CRIMINAL REVISION PETITION NO. 1476 OF 2016
CRIMINAL REVISION PETITION NO. 1477 OF 2016
CRIMINAL REVISION PETITION NO. 1478 OF 2016
CRIMINAL REVISION PETITION NO. 1479 OF 2016
CRIMINAL REVISION PETITION NO. 1486 OF 2016
IN CRL.RP.NO.1475/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
(Anti-Corruption Branch)
No.36, Bellary Road
Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
Ritesh Milapchand Jain
S/o Milapchand Jain
Aged about 34 years
Chief Executive Officer
M/s. Deccan Mining Syndicate
Private Limited, Bellary
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Resident of Bakshu Sadan
Martin Road, Bellary - 583101.
... Respondent
(By Sri Hashmath Pasha - Sr. Counsel for
Sri Kariyappa N.A. - Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing IA No.14 filed by the
accused No.3/respondent under Section 239 of Cr.P.C.,
and discharging the accused /respondent of the offence
under Sections 120B, 379, 420, 427 & 447 of IPC and
under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act, 1988
and consequently reject the said I.A.No.14.
IN CRL.RP.NO.1476/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
(Anti-Corruption Branch)
No.36, Bellary Road
Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
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AND
N. Vishwanathan
S/o. N.P.R. Nalgamu Chettiar
Aged 71 years
Retired Addl. Chief Secretary
& Development Commissioner
Of Karnataka
Government of Karnataka
Bengaluru
R/at No.135, 1st Cross
5th Block, Koramangala
Bengaluru- 560 095.
... Respondent
(By Sri S. Kalyan Basavaraj - Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing application filed by the
accused No.5/respondent under Section 227 of Cr.P.C.,
and discharging the accused No.5/respondent of the
offence under Sections 120B, 379, 420, 427 & 447 of IPC
and under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act,
1988 and consequently reject the said application.
IN CRL.RP.NO.1477/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
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(Anti-Corruption Branch)
No.36, Bellary Road
Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
S.P. Raju
S/o Sasiahatti Papaiah
Aged 62 years
Retired Deputy director
Mines & Geology, Hospet
R/o. Sasalahatti, Belagatta Post
Chitradurga Taluk
& District - 577501.
... Respondent
(By Sri Chandan B - Advocate for
Sri. Nitin R - Advocate and
Sri. B. Siddeshwara - Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing I.A.24 filed by the
accused No.6/respondent under Section 239 of Cr.P.C.,
and discharging the accused No.6/respondent of the
offence under Sections 120B, 379, 420, 427 & 447 of IPC
and under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act,
1988 and consequently reject the said I.A.24.
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IN CRL.RP.NO.1478/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
Anti-Corruption Branch
No.36, Bellary Road
Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
1. Rajendra Kumar Jain
S/o. Late Sumermal Manmal Jain
Aged about 48 years
Managing Director
M/s Deccan Mining Syndicate
Private Limited, Bellary
R/at Flat No.31, Kalpataru Apartments
Madhavnagar, Race Course Road
Bengaluru - 560 001.
2. M/s. Deccan Mining Syndicate
Private Limited
Rep. by its Managing Director
Shri Rajendra Kumar Jain
S-7, 2nd Floor, Esteem Arcade
No.26, Race Course Road
Bengaluru - 560 001.
... Respondents
(By Sri Hashmatha Pasha - Sr. Counsel for
Sri. Kariyappa N.A - Advocate for R-1 & R-2)
This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
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learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing I.A.No.13 filed by the
accused Nos.1 & 2/respondents under Section 239 of
Cr.P.C., and discharging the accused Nos.1 & 2 /
respondents of the offence under Sections 120B, 379,
420, 427 & 447 of IPC and under Section 13(2) r/w Sec.
13(1)(d) of P.C. Act, 1988 and consequently reject the said
I.A.No.13.
IN CRL.RP.NO.1479/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
(Anti-Corruption Branch)
No.36, Bellary Road
Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
Smt. Shameem Bhanu
Aged 62 years
Retired Addl. Chief Secretary
Department of Commerce and Industry
Government of Karnataka, Bengaluru
R/at. No.81, 5th Cross, 16th Main
MCHS Layout, BTM 2nd Stage
Bengaluru - 560076.
... Respondent
(By Sri Udaya Holla - Sr. Counsel for
Sri. Vivek Holla - Advocate and
Sri. Rajendra M.S - Advocate)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing I.A.No.7 filed by the
accused No.4/respondent under Section 239 of Cr.P.C.,
and discharging the accused No.4/respondent of the
offence under Sections 120B, 379, 420, 427 & 447 of IPC
and under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act,
1988 and consequently reject the said I.A.No.7.
IN CRL.RP.NO.1486/2016:
BETWEEN
State Represented by
Central Bureau of Investigation
(Anti-Corruption Branch)
No.36, Bellary Road, Ganganagar
Bangalore - 560 032.
... Petitioner
(By Sri. Prasanna Kumar P, Advocate)
AND
Ramakant Y Hullar
S/o Yallappa Hullar
Aged 43 years
Circle Inspector of Police
Government of Karnataka
109/8, SBI Colony
PHQ Road, Dharwad - 580 001.
... Respondent
(By Sri Sagar B.B - Advocate)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of the Code of Criminal Procedure, praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 thereby allowing I.A.No.25 filed by the
accused No.7/respondent under Section 239 of Cr.P.C.,
and discharging the accused No.7/respondent of the
offence under Sections 120B, 379, 420, 427 & 447 of IPC
and under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act,
1988 and consequently reject the said I.A.No.25.
These Criminal Revision Petitions having heard and
reserved for judgment on 26.08.2022 coming on for
pronouncement this day, the court made the following:
ORDER
All these Criminal Revision Petitions have been filed
by the State, represented by the Central Bureau of
Investigation seeking to set aside the order dated
30.01.2016 passed by the learned XLVI-Addl. City Civil
and Sessions Judge and Special Judge for CBI cases at
Bengaluru city in Special C.C.No.165/2013. Since all
these petitions arise out of the same C.C.No.165/2013,
they are heard together and are disposed of by this
common order.
2. The petition in Crl.R.P.No.1475/2016 pertains to
respondent / Accused No.3 / Rithesh Milapchand Jain,
Chief Executive Officer, Deccan Mining Syndicate Pvt. Ltd.
(DMSPL). This Criminal Revision Petition is filed by the
State praying to set aside the order dated 30.01.2016
passed by the learned XLVI-Addl. City Civil and Sessions
Judge and Special Judge for CBI cases at Bengaluru city
in Special C.C.No.165/2013 allowing IA No.14 filed by the
accused No.3/respondent under Section 239 of Cr.P.C.,
and discharging the accused No.3 /respondent of the
offences under Sections 120B, 379, 420, 427 & 447 of IPC
and under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act,
1988 and consequently praying to reject the said
I.A.No.14.
3. The petition in Crl.R.P.No.1476/2016 pertains to
respondent / Accused No.5 / N. Vishwanatha, Retd. Addl.
Chief Secretary & Development Commissioner of
Karnataka, Government of Karnataka. This Criminal
Revision Petition is filed by the State praying to set aside
the order dated 30.01.2016 passed by the learned XLVI-
Addl. City Civil and Sessions Judge and Special Judge for
CBI cases at Bengaluru city in Special C.C.No.165/2013
allowing the application filed by the accused
No.5/respondent under Section 227 of Cr.P.C., and
discharging the accused No.5 /respondent of the offences
under Sections 120B, 379, 420, 427 & 447 of IPC and
under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act, 1988
and consequently praying to reject the said application.
4. The petition in Crl.R.P.No.1477/2016 pertains to
Accused No.6 / S.P. Raju, Retired Deputy Director, Mines
& Geology, Hospet. This Criminal Revision Petition is filed
by the State praying to set aside the order dated
30.01.2016 passed by the learned XLVI-Addl. City Civil
and Sessions Judge and Special Judge for CBI cases at
Bengaluru city in Special C.C.No.165/2013 allowing
I.A.24 filed by the accused No.6/respondent under
Section 239 of Cr.P.C., and discharging the accused No.6
/respondent of the offences under Sections 120B, 379,
420, 427 & 447 of IPC and under Section 13(2) r/w Sec.
13(1)(d) of P.C. Act, 1988 and consequently praying to
reject the said I.A.24.
5. The petition in Crl.R.P.No.1478/2016 pertains to
Accused No.1 / Rajendra Kumar Jain, Managing Director
of M/s. Deccan Mining Syndicate Pvt. Ltd. (DMSPL). This
Criminal Revision Petition is filed by the State praying to
set aside the order dated 30.01.2016 passed by the
learned XLVI-Addl. City Civil and Sessions Judge and
Special Judge for CBI cases at Bengaluru city in Special
C.C.No.165/2013 allowing I.A.No.13 filed by the accused
No.1/respondent under Section 239 of Cr.P.C., and
discharging the accused /respondent of the offences
under Sections 120B, 379, 420, 427 & 447 of IPC and
under Section 13(2) r/w Sec. 13(1)(d) of P.C. Act, 1988
and consequently praying to reject the said I.A.No.13.
6. The petition in Crl.R.P.No.1479/2016 pertains to
Accused No.4 / Shameem Bhanu, Retired Addl. Chief
Secretary, Department of Commerce & Industry,
Government of Karnataka. This Criminal Revision Petition
is filed by the State praying to set aside the order dated
30.01.2016 passed by the learned XLVI-Addl. City Civil
and Sessions Judge and Special Judge for CBI cases at
Bengaluru city in Special C.C.No.165/2013 allowing
I.A.No.7 filed by the accused No.4/respondent under
Section 239 of Cr.P.C., and discharging the accused
/respondent of the offences under Sections 120B, 379,
420, 427 & 447 of IPC and under Section 13(2) r/w Sec.
13(1)(d) of P.C. Act, 1988 and consequently praying to
reject the said I.A.No.7.
7. The petition in Crl.R.P.No.1486/2016 pertains to
Accused No.7 / Ramakanth Y. Hullar, Circle Inspector,
Sandur Police Station. This Criminal Revision Petition is
filed by the State praying to set aside the order dated
30.01.2016 passed by the learned XLVI-Addl. City Civil
and Sessions Judge and Special Judge for CBI cases at
Bengaluru city in Special C.C.No.165/2013 allowing
I.A.No.25 filed by the accused No.7/respondent under
Section 239 of Cr.P.C., and discharging the accused
/respondent of the offences under Sections 120B, 379,
420, 427 & 447 of IPC and under Section 13(2) r/w Sec.
13(1)(d) of P.C. Act, 1988 and consequently reject the said
I.A.No.25.
8. The factual matrix of the petitions are as under:
It transpires that pursuant to the order dated 23rd
September 2011 passed by the Hon'ble Apex Court in
Special Leave to Appeal (Civil) No.7366-7367/2010, the
petitioner/CBI (ACB), Bengaluru registered a criminal
case in R.C.No.19(A)/2011 on 01.10.2011 against the
Director of M/s. Deccan Mining Syndicate Pvt. Ltd., (A-2),
unknown officials of M/s. National Mineral Development
Corporation Limited (hereinafter referred to as 'NMDC' for
Short) and unknown public servants & others for the
offences under Sections 120B, 379, 411, 420, 427, 444,
468, 447 of IPC, Sec. 13(1)(d) r/w Sec. 13(2) of Prevention
of Corruption Act, 1988, Sec. 26 of Indian Forest Act,
1927, Sec. 21 r/w Sec. 4(1), 4(1)(A) & Sec. 23 of Mines and
Minerals (Development & Regulation) Act, 1957 in respect
of illegal mining for the period from 1994 till the date of
filing of the FIR.
9. Further, the Hon'ble Apex Court in the aforesaid
order dated 23.09.2011 in page No.8 had observed as
under,
"Vide the said report of CEC, it is further
pointed out to this court that massive illegal
mining by a third party was being done in mining
lease No.1111 of M/s NMDC. That, despite
various complaints to the numerous authorities in
the State of Karnataka by M/s. NMDC no steps
were taken to prevent that third party from
resorting to massive illegal mining in mining lease
No. 1111 of M/s. NMDC till this court banned
mining. These complaints were made against the
third party, namely, M/s Deccan Mining
Syndicate ("DMS" for short) for encroaching into
M/s. NMDC's mining lease area. Even the
complaint lodged by M/s. NMDC against M/S
DMS to the Police Circle Inspector, Sandur on
10.07.2009 was interpolated. We also want CBI
to investigate the above illegalities including
encroachment by M/s Deccan Mining Syndicate
in the area leased out to M/s NMDC."
10. The Central Empowered Committee in its report
dated 21st September 2011 filed before the Hon'ble
Supreme Court of India, in the above said matter has
stated the following in matters of mining lease of M/s.
NMDC. The same are as under:-
"The joint team has, with regard to the
mining lease No.1111 of M/s. NMDC, observed
that massive illegal mining by third party has
taken place within its lease area and that in
September 2009 M/s. NMDC voluntarily
suspended the undertaking of the mining
operations. M/s NMDC in its letter dated
15.09.2011 has tried to justify the background
in which the mining operations were
suspended".
11. The Joint Team constituted by the Hon'ble
Supreme Court of India vide their order dated 06.05.2011,
in its proceedings dated 08.09.2011 has stated the
following serious irregularities and illegalities pertaining to
the mining leases of M/s NMDC.
(i) Massive illegal mining of iron ore,
having market value at more than
Rs. 100 Crores, has taken place
(details shown in the sketch of M/s
Deccan Mining Syndicate (P) Ltd., ML
No. 2525 prepared by the joint team)
within the sanctioned lease area of ML
No.1111 lease of M/s National Mineral
Development Corporation Ltd. The
Massive illegal mining, construction of
road for the same and the movement
of a large number of trucks for the
transportation of the iron ore was
facilitated by the inexplicable decision
voluntarily taken by M/s NMDC to
close its mining operations in the
adjoining pits No.1 & 2 of its lease. It
has filed an undertaking dated
23.09.2009 to this effect before the
Hon'ble High Court of Karnataka in
Writ Appeal No.1134/2009 and Writ
Appeal No.1135/2009. Consequently,
the production of iron ore by M/s
NMDC from this mine during 2009-10
was reduced to "nil" even though it
has environment clearance and IBM
clearance for annual production of 7
million tons of iron ore.
(ii) M/s. NMDC vide letter-dated
10.07.2009 of Assistant Management
(Mech) requested the Sandur Police
Station to lodge an FIR against M/s
Deccan Mining Syndicate for carrying
out illegal mining in the lease area of
M/s. NMDC. However, in the letter
which was actually delivered to the
Police Station, the words "lodge a FIR"
has been scored out by the Assistant
Manager (Mech) and replaced with the
words "taken an action".
(iii) The location & details of the mining
leases of M/s Deccan Mining
Syndicate Private Ltd., (ML No.2526)
are shown in the sanctioned lease
sketch of mining lease No.1111 of M/s
NMDC. However, in the proposal
submitted by M/s NMDC for seeking
approval under the FC Act for
additional forest area, the location of
the mining lease of M/s Deccan
Mining Syndicate Private Ltd., is
shown in another location and which
happens to be the same area where
illegal mining was going on.
(iv) It is also seen that M/s NMDC had
between 1994 to November 2009
written a number of letters to the
various authorities regarding the
illegal mining being done in its lease
area by M/s Deccan Mining Syndicate
Pvt Ltd. Surprisingly, thereafter M/s
NMDC did not pursue the matter,
even though the level of illegal mining
had increased substantially.
(v) The joint team is of the view that a
thorough enquiry and follow up action
is required to be taken regarding the
massive illegal mining which has
taken place within ML No.111 of M/s.
NMDC. It is also to be investigated as
to who are the actual beneficiaries of
the illegal mining".
12. Since the aforesaid order dated 06.05.2011 of
the Joint Team constituted by the Hon'ble Apex Court, the
report dated 21.09.2011 of the Central Empowered
Committee constituted a case against the accused
persons, the petitioner/ CBI registered the aforesaid case
in RC No.19(A)/2011 and took up the case for
investigation.
13. During the course of investigation the
involvement of Shri. Rajendra Kumar Jain (A-1), M/s.
Deccan Mining Syndicate Pvt. Ltd., (M/s DMSPL)(A-2),
represented by its MD Shri Rajendra Kumar Jain, Shri
Rithesh Milapchand Jain (A-3), CEO of M/s. Deccan
Mining Syndicate Pvt. Ltd., Bellary, Smt. Shamim Bhanu
(A-4) the then Secretary of Commerce & Industries, Govt.
of Karnataka, Bangalore, Shri N. Vishwanatha (A-5), Retd.
Addl. Chief Secretary & Development Commissioner of
Karnataka, Government of Karnataka Shri S.P. Raju (A-6),
the then Deputy Director, Mines & Geology, Hospet, Govt.
of Karnataka and Shri Ramakant Y. Hullur (A-7) the then
Circle Inspector of Police, Sandur Police Station came to
light and they were arraigned as accused in the instant
case.
14. On completion of the investigation, the
petitioner/CBI filed charge-sheet against the petitioners
herein before the learned XLVI-Addl. City Civil & Sessions
Judge & Special Judge for CBI cases at Bengaluru City
(CCH-47). The learned Special Judge being satisfied with
the material placed on record, took cognizance against
accused Nos.1-7 and issues summons against them for
the offences under Sections 120B, 379, 420, 427 & 447 of
IPC as against accused Nos. 1 - 3 for the additional
offence under Sec. 13(1)(d) r/w Sec. 13(2) of Prevention of
Corruption Act, 1988 as against accused Nos.4 - 7.
15. In the charge sheet, the role of each one of the
accused has been specifically narrated by the
Investigating Agency. Accused Nos.1 & 2 / Respondents,
represented by its Managing Director / Accused No.1,
Accused No.3/Shri Rithesh Milapchand Jain, CEO of
Accused No.2/Company, Bellary, Smt. Shamim Bhanu /
Accused No.4, the then Secretary of Commerce &
Indstries, Govt. of Karnataka, Bengaluru, Shri
Viswanathan/Accused No.5, the then Principal Secretary,
Department of Commerce & Industries, Govt. of
Karnataka, Bengaluru, Shri S.P. Raju / Accused No.6, the
then Deputy Director, Mines & Geology, Hospet,
Government of Karnataka and Shri. Ramakant Y Hullur /
Accused No.7, the then Circle Inspector of Police, Sandur
Police Station were parties to a criminal conspiracy
hatched at Bengaluru, Bellary, Hospet & other places in
Karnataka during the period 1980-2010 to commit the
offences of criminal conspiracy, cheating, theft of iron ore,
criminal trespass, changing the boundaries and criminal
misconduct by abuse of their official position. In
pursuance of the said conspiracy, Accused No.2/company
represented by Accused No.1 & Accused No.3 has done
illegal mining outside its lease area, and the accused
public servants namely Accused No.4/Smt Shameem
Bhanu, Accused No.5/Shri Viswanathan, Accused
No.6/Shri S.P. Raju and Accused No.7/ Shri Ramakant Y
Hullur, are said to have fraudulently and dishonestly
facilitated this illegal mining by way of illegally renewing
the mining lease by changing the original sketch, issuing
mineral dispatch permits without verifying the stocks and
by not taking any action on the complaints preferred by
M/s. NMDC, by abusing their official position by corrupt
or illegal means. In view of the alleged illegal iron ore
mining, the State exchequer had suffered a wrongful loss
to the tune of Rs.1232.395 crores and corresponding
wrongful gain to the accused persons.
16. The material placed by the prosecution in terms
of the charge-sheet laid by the I.O. clearly indicates the
role of each one of the accused and it is established that
Accused No.3 was in actual control of the business of
Accused No.2 and the Trial Court had come to the
conclusion at the stage of framing of charges itself by
considering the application filed under Section 239 of the
Cr.P.C. In that view of the matter, it is contended that the
impugned order passed by the learned Sessions Judge is
unsustainable and the same is liable to be set aside by
considering the grounds urged in these petitions
respectively. Viewed from any angle, the impugned order
passed by the learned Special Judge for CBI Cases in
discharging the accused Nos.1 to 7 / respondents herein,
is not justified. The impugned order suffers from
illegalities and impropriety. The findings are contrary to
the material on record, that is the charge-sheeted
materials laid by the I.O / CBI. As such, it is contended
that the impugned order is liable to be set aside in order
to secure the ends of justice.
17. The factual matrix narrated in all these petitions
by the petitioner / CBI in a nutshell relates to the criminal
conspiracy of Accused Nos.1, 2 and 3 and role of the
remaining Accused Nos.4 to 7 in respect of the indulgence
in criminal misconduct being Government servants, has
been narrated in detail. Therefore, the same has been
narrated in a nutshell in the factual matrix of these
petitions for intervention by this Court by urging various
grounds independently relating to the impugned order
passed by the Trial Court in Spl. CC No.165/2013 dated
30.01.2016 relating to discharging the accused by
considering their application filed under Section 239 of
the Cr.P.C.
18. Learned Spl. PP Shri P. Prasanna Kumar in all
these petitions respectively has taken me through the
initiation of criminal prosecution against accused Nos.1 to
7 by registering the case in R.C.No.19(A)/2011 wherein it
is contented, that in the year 1962, initially Mining Lease
No.636 in Kammatervu Village, Sandur Taluk, Bellary
District was granted in favour of Shri. Motilal J Boal in
1972. The said lease was granted for exploration of iron
ore in an area of 22.23 Ha (50 acres) which was for a
period of 20 years w.e.f., 1966. Out of the said 50 acres, 3
acres in the north east corner fell within the boundaries of
Sandur Reserve Forest. From 1966 to 1976 not much of
mining activities were carried out and after 1976, the
mining activities in ML No.636 gathered momentum.
19. Further, M/s. National Mineral Development
Corporation Limited (NMDC), a Public Sector Undertaking
under the Ministry of Steel, Govt. of India was sanctioned
mining lease No.1111 by the Department of Mines and
Geology, Government of Karnataka, Bengaluru on
18.10.1972. The said lease was granted for an area of
647.57 hectares (1600 acres) in Kumaraswamy and
Subbarayana Halli Villages in Sandur Taluk for
exploration and mining of iron ore for a period of 30 years
i.e., till 17.10.2002. The mining sketch of ML No.1111 of
M/s. NMDC issued by the Department of Mines and
Geology, Government of Karnataka, Bengaluru showed
that ML No.1111 of M/s. NMDC had surrounded the ML
area of 636 of M/s. Motilal J Boal from all four sides.
20. Vide Govt order No.C1-71 MMI-1980 dated
30.06.1980, the mining lease No.636 granted in favour of
M/s MJ Boal was transferred in the name of M/s Deccan
Mining Syndicate (M/s DMS), a partnership firm and the
said firm took over the mining operations in ML No.636.
On 05.01.1985, M/s DMS submitted an application for
renewal of the mining lease No.636 for a further period of
20 years.
These are all the materials which find place in the
record for laying of the charge-sheet by the I.O. against
accused Nos.1 to 7. The Trial Court did not consider the
role of each one of the accused but allowed the application
and discharged them from the case relating to the offences
lugged against them. On these count also, it requires
intervention by setting aside the impugned order passed
by the Trial Court in Spl. CC.No.165/2013 dated
30.01.2016.
21. The second limb of arguments advanced by the
learned Spl. PP for the CBI / ACB is that M/s NMDC was
holding 105 acres extra against the initial allotment of
1600 acres and vide letter dated 13.04.1988, M/s NMDC
expressed their willingness to surrender the excess area
and accordingly on 08.07.1992, the Director, Mines and
Geology accepted the surrender of the excess area of 105
acres. Thereafter, a revised sketch was issued to M/s
NMDC by deleting 105 acres surrendered by them on the
Western side. In the meanwhile, on 25.09.1991, a Private
Limited Company in the name & style of M/s Deccan
Mining Syndicate Private Limited (M/s DMSPL / Accused
No.2) came into existence and this company took over the
partnership firm M/s DMS w.e.f., 25.09.1991. Accused
No.3/Shri. Ritesh Milapchand Jain is the CEO of M/s
DMSPL/Accused No.2. Since the year 1980, M/s DMSPL
(Accused No.2) was doing mining from the lease area of
M/s NMDC in two pits i.e., Pit Nos.1 & 2. Many
complaints given by M/s NMDC to Police, Director, Mines
& Geology, Tahsildar could not yield any result and M/s
DMSPL (Accused No.2) continued the illegal extraction of
iron ore from the ML area of M/s NMDC.
22. Further, the Hon'ble High Court of Karnataka
vide order in W.P.No.2564/96 had instructed M/s DMSPL
/ Accused No.2 to confine their mining activities within
the ML area but M/s DMSPL / Accused No.2 continued
the illegal extraction of iron ore from the area of M/s
NMDC. Therefore, M/s NMDC has preferred many
complaints to Director, Mines & Geology, Department of
Commerce & Industries and police in this regard but the
illegal mining has continued unabatedly. This contention
is made in these petitions relating to the role of Accused
Nos.1 to 7.
23. It is further contended that Shri. N.
Viswanathan/Accused No.5 secured the file. According
to the conventions of the Department of Commerce and
Industry, the Secretary, Mines is competent to process
and take a decision in this matter and put up the file to
the concerned ministry. The Accused No.5 directed the
Director, Mines and Geology, to conduct the survey of the
mining lease area granted to M/s DMSPL/Accused No.2,
in view of the large scale illegal mining carried out by M/s.
DMSPL/Accused No.2 and to resubmit the proposal. The
Accused No.5 the then Principal Secretary, deputed Shri
Ravikumar and Smt. Shamim Banu/Accused No.4,
Secretary-II to the disputed mining area at KIOM for
inspection to study the extent of illegal mining done by
M/s DMSPL/Accused No.2. As evident from the notings
made vide para 46/n dated 05.02.1998 of file 246 AML
95/23-6-95, wherein Shri. P. Ravikumar, being an I.A.S.,
remarked that "Discussed with Principal Secretary, C&I,
Secretary - II, C & I. Based on the spot inspection
conducted on 15.11.1997 along with Secretary-II, C&I, it
is felt that it would be feasible to change the sketch so as
to include the worked area and keeping the extent
sanctioned 47 acres. A detailed proposal sent to Govt.
copies of the revised sketch also to be enclosed to the
letter dictated". Accordingly, on 17.12.1997, Shri. B N
Inamdar, Asst. Engineer & Shri. Basavaraj, JC were
deputed to carry out survey of the ML 2080 area of M/s
DMSPL / Accused No.2. In the survey carried out by them
the area of 47 acres sanctioned as per the lease deed ML
2080 and the area worked outside the lease area were
clearly identified and readings of both the boundaries
were recorded in the survey report submitted to the
Director, Mines & Geology.
24. It is further contended that Shri. P. Ravikumar,
Director, Mines & Geology, in his letter addressed to the
Government had suggested three viable options as under:-
(a) That the application of Accused
No.2 for second renewal of 2080
may be rejected for the violation
committed by the lessee.
(b) That the State Government may
impose a penalty as per Sec.
21(5) of MM(R&D) Act, 1957 for
the amount mentioned and
consider grant of second renewal
as per leased sketch.
(c) That to consider grant of second
renewal to the Accused No.2 by
changing the sketch to include
the worked area.
25. The Director, Mines and Geology recommended
option - III in which the lessee would be restricted to the
area worked, keeping the overall existing 47 acres. When
the proposal for renewal of the mining lease was received
by the Dept. of Commerce and Industries, they sought for
a clarification from the Director, Mines and Geology vide
letter dated 07.04.1998 to the effect that whether the
proposal for renewal of ML 2080 for the second time sent
to the Govt. was for the revised location / sketch i.e.,
including the mined area outside the leased area and
deleting an equivalent extent, maintaining the total acres
of 47 acres or for renewal. In response to the Govt. letter
dated 16.04.1998, Shri. P. Ravikumar, Director, Mines &
Geology, Bengaluru replied stating that the renewal is for
the modified sketch.
26. Accused No.5 / N. Viswanathan had put up the
file after dispatch of the letter to the Government of India
for perusal. For that note, the Accused No.5 had endorsed
that " I have seen it". The Accused No.5, has not
commented regarding the letter written by the Govt. of
Karnataka to the Govt. of India that it is without the facts
of illegal mining and their intention to change the sketch
which shows that he was in agreement with the letter
written. The Govt. of India did not reply to this proposal.
Meanwhile, the Accused No.4 put up a note stating that
there is no need to take permission of the Govt. of India
since this is a second installment of first renewal and
recommended withdrawing the proposal and taking
decision at their level, which was approved by Accused
No.5.
27. It is further contended that the accused officials
of the Department of Commerce and Industries,
Government of Karnataka had violated all the laid down
norms in order to favour M/s DMSPL/Accused No.2. The
letter sent by the Govt. of Karnataka seeking permission
of Government of India for the renewal contained checklist
along with topo sketch 2080 dated 23.06.1995, which was
an altered sketch (modified from the original mining
lease), which was not mentioned anywhere in the
application. Later, Govt. of Karnataka had requested
Ministry of Mines for withdrawal of the proposal dated
22.04.1998 on the ground that the State Government was
itself competent to renew the mining lease. It is revealed
that the State Government had no power to renew a
mining lease based on a modified sketch. When the
mining lease boundaries were already determined with the
prior approval of the Central Government, as was done
while issuing the first mining lease ML 636 (which was
later renewed as ML 2080 with the same boundaries), any
further modification of the mining lease boundaries
carried out by the State Government is an illegal act.
There is no provision under the Mines and Minerals
(Development & Regulation) Act, 1957 to renew a mining
lease based on a modified sketch. In the case of the
Accused No.2 the modified sketch consisted of mining
lease area granted to M/s NMDC under ML 1111.
Therefore, any mining carried out in a modified mining
lease area constituted an offence of illegal mining.
28. It is further contended that Accused No.4 had
initially recommended the change of sketch and sent the
file to Accused No.5. When the letter was sent to the
Government of India without the details of illegalities and
their intention to change the sketch, the file was not
moved through Accused No.4 and Accused No.5 directly
dealt the file by bypassing Accused No.4. It is stated that
Accused No.5 instructed his subordinates not to mention
anything about the illegalities committed by Accused No.2
in the proposal and also ensured that the letter which was
sent to the Government of India was put up to him for his
perusal and he has not made any remarks in the file.
However, Accused No.4 had recommended withdrawal of
the proposal sent to the Government of India and to take a
decision at the level of Government of Karnataka in spite
of knowing the fact that for changing the sketch,
permission of the Government of India is mandatory.
29. Insofar as Accused No.6/Shri S.P. Raju who was
posted as Deputy Director, Mines and Geology, Bellary, it
is stated that during the period 2007-08, he conspired
with other accused in the matter of transportation of iron
ore to Goa & Belekeri ports and in pursuance of the said
conspiracy, Accused No.2 had transported 1,47,095 MTs
of iron ore to Goa and 11,070 MTs to Belekeri respectively,
without obtaining any transport permits from the office of
Department of Mines & Geology, Hospet. In pursuance of
the conspiracy, Shri. Ritesh Jain, CEO, M/s
DMSPL/Accused No.2 had applied for the dispatch
permits with Director, Mines and Geology, Hospet after
the dispatch of iron ore. The Accused No.6 had issued
permits for transportation of 1,59,250 MTs iron ore to Goa
and Belekeri on 07.09.2007 without verifying with regard
to the availability of iron ore stocks at the mines. This
quantity was already dispatched by the applicant and the
said fraudulent permits issued by Accused No.6 facilitated
the transportation of illegally extracted iron ore as
contended by the Spl. Public Prosecutor.
30. Insofar as Accused No.7/Shri. Ramakant Y.
Hullur, who was serving as the Circle Inspector of Sandur,
it is stated that he has not taken any action on the
complaints preferred by M/s NMDC to stop the illegal iron
ore extraction by Accused No.2 from the area of M/s
NMDC. Further, he had also instructed his subordinates
not to take any action and thereby facilitated the illegal
extraction of iron ore by acting in conspiracy with the
other accused persons as contended by the Spl. Public
Prosecutor.
31. Further, the survey conducted at mining lease
areas of ML No.2525 of the Accused No.2 and surrounding
areas falling under ML No.1111 of NMDC by an
independent team headed by the Chief Surveyor, M/s
Singareni Colleries, Kothagudem, AP using latest gadgets
and GPS readings and other data were collected from the
field which revealed that massive illegal mining had taken
place at the areas falling under ML No.1111 of M/s NMDC
by Accused No.2. The said data was assessed by the
experts to arrive at the total quantity of iron ore illegally
extracted by Accused No.2 from the date of
commencement of their mining operation till date to be
around 62 lakhs MT as against 81 lakh MT of iron ore
extracted from within its mining lease area ML
636/2080/2080A/2525. Therefore the total quantity of
iron ore extracted during the said period is 1.43 crore MT
as calculated by the expert team based on the data
collected from the mining pits and its surroundings. This
figure of 1.43 Cr MTs roughly corresponds to 1,13,33,228
MT (1.13 Crore MTs) of iron ore declared by the Accused
No.2 as their production for the period 1975 to April 2011
before the Dept of Mines and Geology & other statutory
agencies. It is clear from the said figures that the Accused
No.2 had been mining outside their ML area and such
illegal mining amounts to an offence of theft. As per the
survey, it is revealed that the total iron ore extracted by
Accused No.2 from the ML area of M/s NMDC was
62,73,657.738 MT and the total cost of iron ore extracted
by Accused No.2 from the ML area of M/s NMDC was
Rs.1,232,39,51,089 (Rs. 1,232,395 Crores approximately)
as contended by the Spl. Public Prosecutor.
32. It is further stated that there were legal disputes
between M/s NMDC & the Accused No.2. Both parties
challenged various issues, by filing petitions in the
Karnataka High Court. M/s NMDC had filed a Writ
Petition No.10335/1998 against Accused No.2 & others.
The Accused No.2 had filed a W.P.No.19766/2005 against
M/s NMDC & Ors. The Karnataka High Court during
2008, disposed of both petitions by passing a common
order asking for the survey in terms of MC Rules. The
judgment was challenged by M/s NMDC by way of filing
Writ Appeals before the Division Bench of Karnataka High
Court, which stayed the survey vide its order-dated
23.09.2009. The Hon'ble Supreme Court of India, on
06.05.2011 in W.P.(Civil) No.562/2009 has passed orders
for survey and demarcation of all the mining leases in
Bellary District by the joint team. The joint team
appointed by the Supreme Court has carried out survey of
M/s NMDC and filed its report before the Hon'ble
Supreme Court on 13.03.2012, which was accepted by the
Hon'ble Supreme Court on 13.04.2012.
33. In the concluding submission made by the
learned zSpl. Public Prosecutor for the CBI / ACB insofar
as the investigation conducted by the I.O. reveals that the
accused persons had entered into a criminal conspiracy
and in furtherance of the said conspiracy, Accused No.2
had encroached the mining area of M/s. NMDC and
illegally extracted iron ore from the mining lease areas of
NMDC to the tune of 62,73,657.738 MT and total cost of
iron ore extracted is Rs.1232.395 crores, which is a
wrongful loss to the Government and wrongful gain to the
accused persons.
34. Hence, it is contended that the impugned order
passed by the Trial Court by discharging Accused Nos.1 to
7 respectively by considering their application filed under
Section 239 Cr.P.C. is contrary to law, facts and material
available on record, that is the materials secured by the
I.O. during the course of investigation in order to lay the
charge-sheet. The material on record by the prosecution /
CBI in the form of statement of witnesses stated and the
documentary evidence which is investigated in the charge-
sheet clearly makes out a case against accused persons
and also role of each one of the accused. On all these
counts, it requires intervention in respect of the impugned
order passed by the Special Judge / Trial Court, which
order passed by the Trial Court is unsustainable and the
same is liable to be set aside.
35. It is contended that the learned Special Judge
while passing the impugned order discharging Accused
Nos.1 and 2, has erroneously held that Accused No.2 /
Company has not at all encroached upon the area of M/s.
NMDC. In this regard, it is submitted that CW-2 speaks
about the boundaries of Mining Lease Nos.1111, 2080 and
2525 of the accused No.2 / Company. The witness CW-3
speaks about the complaints of illegal mining activities
conducted by accused No.2 / Company and the action
taken. The witness CW-4 speaks about the encroachment
by Accused No.2 / Company. The statement of witnesses
CW5 to CW10 would indicate the role of the Accused
Nos.1 to 3 in the encroachment. Further, the statement of
CW-15 would indicate the illegal mining activities carried
out by the accused No.2 / Company. The statement of
CW-17 would indicate the role of Accused Nos.1 to 3,
about the Directors, about the Annual Report of the
Company and non-intimation of 2.2 lakh MT removed by
Accused No.2 / Company. Similar is the statement of
CW-36. Statements of CW-37 and 44 would indicate that
several complaints were filed against Accused No.2 /
company in the illegal mining activities being carried out
by the accused Nos.1 to 3. Further, the documents in the
form of complaints by the officials of M/s. NMDC,
investigation report of the Central Excise Department,
charge-sheet filed by the Forest Department against
Accused No.2 / Company, data relating to production
submitted by Accused No.2 / Company and several other
documents would clearly indicate that the accused No.2 /
company had in fact encroached upon the mining area of
M/s. NMDC.
36. It is further contended that the Karnataka State
Remote Sensing Application Centre has conducted survey
both physically as well as with the help of satellite
imaging. A copy of the said report of the Karnataka State
Remote Sensing Application Centre is part of the charge-
sheet. It is contended that both the said reports and the
satellite imaging produced in the charge-sheet clinchingly
establishes that Accused No.2 / Company, in active
participation of Accused Nos.1 to 3, have in fact
encroached upon the area of M/s. NMDC. This part of the
charge-sheet has not been considered by the learned
Special Judge, resulting in passing of the impugned order,
which has resulted in a miscarriage of justice.
37. It is further contended that the documentary
evidence in the form of data relating to production
submitted by the accused No.2 / company and data
relating to transportation and exportation of iron ore
through various ports for the period between 2004-2011
clearly indicates that the data submitted by Accused No.2
/ Company in respect of its lease-hold area do not tally
with the data relating to transportation and export of iron
ore. It is contended that these documentary evidences
have been simply given a go-by by the learned Special
Judge while passing the impugned order thereby
discharging Accused Nos.1 to 3, which is unsustainable.
38. It is further contended that the prosecution has
also placed on record the illegal modification of sketch
carried out by the Accused No.2 / Company in active
participation of Accused Nos.1 to 3, its Managing Director
and Chief Executive Officer, the actual sketch issued by
the Department and the sketch fabricated by Accused
Nos.1 to 3 in connivance with other accused persons. It is
contended that this part of the charge-sheet has also not
been considered by the learned Special Judge while
passing the impugned order.
39. It is the further contention of the learned Spl PP
for CBI / ACB that the learned Special Judge has
proceeded to discharge Accused No.1 holding that there is
no allegation that accused No.1 has committed the offence
in his individual capacity and that he has been shown as
the Managing Director of Accused No.2 and that his role
pertains only to the period from 2005. In this regard, it is
submitted that the investigation material covers the period
upto 2011. As such, the role of Accused Nos.1 and 3
being the Managing Director and Chief Executive Officer,
is clearly covered in the charge-sheet. It is contended that
Accused No.1 / Managing Director and Accused No.3 /
CEO of Accused No.2 / Company, have actively
participated in all the illegal activities of the accused No.2
/ company. It is contended that the learned Special
Judge has committed a grave error in holding that
Accused No.1 has not committed the offence in his
individual capacity. Even though the material on record
would clearly indicate that Accused No.1 has committed
the offence in his individual capacity as Managing
Director of Accused No.2 / company, the learned Special
Judge committed an error in discharging Accused No.1
holding that there is no allegation that Accused No.1 has
committed the offence in his individual capacity.
40. It is further contended that the learned Special
Judge has failed to appreciate the fact that the
prosecution had placed on record about 100 complaints
against M/s. DMSPL by M/s. NMDC with regard to illegal
mining, preferred to M/s. DMG, Police and Revenue
authorities from 1980, which indicates that M/s. DMSPL
was indulging in illegal extraction of mining beyond their
leased area. This part of the evidence has not been
considered by the learned Special Judge, which has
resulted in a miscarriage of justice.
41. Further, the statement of Shri Venugopal, Senior
Geologist, who carried out inspection and submitted a
report as on 20.07.1996 clearly mentions that DMSPL had
encroached the ML area of NMDC and as on April 1996,
3.04 lacs MTs valued at Rs.5.95 crores was illegally
extracted. Though the said inspection report was placed
on record, the learned Special Judge has failed to consider
the same.
42. The material on record clearly indicated that on
17.12.1997, Basavaraj, J.E and Inamdar, A.E. had
conducted survey and submitted their report that the
quantity of illegal mining of M/s. DMSPL is about 96,000
MTs. The cost was arrived at Rs.21.17 lacs and the same
is found to be not correct. This would further fortify the
case of the prosecution against the accused.
43. The charge-sheet material clearly establishes
that M/s. DMSPL had got issued the renewal of mining
lease from the Government of Karnataka in 1999 with a
modified sketch where the Government of Karnataka was
not having the power to renew the mining lease without
the approval of the Government of India and the same was
used for illegal mining. This part of the material has not
been considered by the learned Special Judge.
44. The charge-sheet material would also further
indicate that in the month of December 2012, M/s.
Singareni Collieries Company Ltd., A.P., after a detailed
survey, arrived at a figure of 62 lakh MT as the quantity of
iron ore extracted from outside the leased area of M/s
DMSPL. The value was arrived at Rs.1232 crores. The
said survey report is also part of the charge-sheet. The
learned Special Judge is not justified in passing the
impugned order without considering the said material on
record. Further, though M/s. Singareni Collieries
Company Ltd., A.P. arrived at a figure for total quantity of
iron ore extracted during the said period as 1.43 MT as
calculated by the expert team based on the data collected
from the mining pits and surroundings, however, permits
were taken only for 1.13 crore MT. Thereby, it is implied
that 30 lakh MT. of iron ore has been removed and
transported without taking any permits, thereby cheating
the Government of Karnataka, of the royalty amount to
that extent, which has also not been considered by the
learned Special Judge.
45. It is further contended that investigation reveals
that the stocks which were dispatched to Goa and Belikeri
Ports by M/s. DMSPL in the year 2007, were not backed
by the requisite permits. A quantity of nearly 1,58,165
MTs was dispatched by the company to Goa Port and
Belikeri Port without the requisite permits. Subsequent to
transportation of iron ore of 1,58,165 MTs, M/s. DMSPL
had made an application for issue of fresh permits. Shri
S.P. Raju who was functioning as Deputy Director, MDG,
Bellary, had issued permits on 07.09.2007 after the
transportation of iron ore i.e., February to August 2007.
Shri Rajendra Kumar Jain (Accused No.1) was the
beneficiary to these fraudulent permits.
46. It is the further contention of the learned Spl. PP
that the Hon'ble Supreme Court had accepted the survey
conducted by the CEC wherein it had mentioned that
M/s. DMSPL has encroached beyond its area and that the
sketch of the CEC was coinciding with the original lease
sketch issued in 1966. This indicates that the State
Government renewal in 1999 was an illegal act.
47. Further, the statement of the witnesses namely
Shri Panduranga and Shri Borra Vidya Sagar proves the
active involvement of Rajendra Kumar Jain (Accused No.1)
in illegal mining and that the same was carried out in
their presence only. Other witnesses namely Shri Karthik
and others also had confirmed the illegal mining from the
area of NMDC and manhandling done by the
representatives of M/s. DMSPL.
48. It is further contended that though the material
placed on record by the prosecution / CBI clearly
establishes the active role made by accused No.3 / Chief
Executive Officer of the accused No.2 / Company in each
and every aspect of illegality committed in the name of
Accused No.2 / Company, the learned Special Judge has
discharged the accused No.3 holding that the prosecution
must show that Accused No.3 was in actual business and
control of the Accused No.2 / Company. It is further
contended that the material placed by the prosecution
clearly establishes the fact that Accused No.3 was in
actual control of the business of accused No.2, and it is
too much for the learned Special Judge to come to the
conclusion at the stage of framing of charge itself. In that
view of the matter, the impugned order passed by the
learned Special Judge is unsustainable and the same is
liable to be set aside. Further, the learned Spl. PP Shri P.
Prasanna Kumar has placed reliance on the following
citations which have also been previously relied upon
before the Trial Court, in support of his submissions:
i) (2014) 11 SCC 709
ii) AIR 2010 SC 663
iii) (2005) 1 SCC 568
iv) 1997 (5) SCC 326
v) 2012 (3) SCC 64
vi) 2007 (1) SCC 1
vii) 2014 (9) SCC 772
viii) 2012 (1) MWN (Cr.) 238
ix) AIR 2015 SC 2403
49. On all these premise, learned Spl.PP Shri
P.Prasanna Kumar emphatically submits and contends
that the reasons assigned in each of the petitions
respectively relating to the case in Spl. CC No.165/2013
insofar as allowing the I.As. filed by respective Accused
Nos.1 to 7 by order dated 30.01.2016 in C.C.No.165/2013
be set aside and thereby prays to convict the accused /
respondents in respect of the offences reflected in the
charge-sheet laid by the Investigating Agency, that is CBI
/ ACB and consequently pass suitable orders as deemed
fit in the circumstances of the case to proceed with the
case against the accused persons.
50. Whereas learned Senior counsel Sri Hasmath
Pasha in Crl.R.P.No.1475/2016 relating to I.A.14 in
respect of Accused No.3 and Crl.R.P.No.1478/2016
relating to I.A.13 in respect of Accused Nos.1 and 2 has
produced survey sketch report as per the order passed by
this Court in W.P.No.10335/1998 and
W.P.No.19766/2005 and so also, copy of notification
dated 04.04.2005 regarding the renewal of mining lease in
favour of M/s.NMDC. This document has been produced
for the purpose of perusal.
51. In the spot inspection report carried out by the
Court Commissioner and Joint Director of Land Records,
Bangalore Division, Bangalore whereby in his report he
has stated that he has inspected the spot along with the
survey staff to measure the mining blocks in the presence
of the representative of writ petitioner and respondent
No.4 - DMSPL as per the orders of the High Court of
Karnataka in W.P.No.10335/1998 (GM-MMS). In his spot
inspection report requested the Director of Mines and
Geology to supply the copies of the original sketch in
respect of lease areas of M/s.NMDC and DMSPL at
Kumaraswamy and Subrayanahalli area. Though the
Director of Mines and Geology had supplied the sketch,
later he requested in a letter that the sketch supplied is
not an authenticated and hence that may be returned. In
view of the letter and the contradictory claims made by
the contending parties, undersigned measured the area
independently to get the correct location of Block No.1.
During his spot inspection he noticed relatively old
concrete pillars and recent fencing of NMDC but no ML
stones were found pitched by the Director of Mines and
Geology. Mahazar drawn at the time of survey is enclosed.
The details were shown in the enclosed sketch. The
measurement from point A to point A via A1 measures
1595 acres. This tallies with ground location and revenue
points of village maps which is the leased area of NMDC.
In Annexure-P of the notification issued by the under
Secretary to Government (Mines) Commerce and
Industries Department in pursuance of sub-section (2) of
Section 8 of the Mines and Minerals (Development and
Regulation) Act, 1957, the Government of Karnataka
accorded sanction for first renewal of mining lease
No.1111 for a period of 20 years (Twenty years only) w.e.f.
18.10.2002 in favour of M/s.NMDC for Iron ore over an
area of 674.50 hectares (Six hundred forty seven point
fifty hectares only) in Kumaraswamy and
Subbarayanahalli Village, Sandur Taluk, Bellary District
as per the sketch furnished by the Director of Mines and
Geology, Bangalore. The sketch report is also produced
by the learned Senior counsel for the purpose of reference.
These are all the documents produced by the learned
Senior counsel relating to accused Nos.1, 2 and 3
respectively in the aforesaid petitions who are arraigned
as respondents. The impugned order dated 30.01.2016 in
Spl.C.C.No.165/2013 relating to accused Nos.1 to 7 who
have been discharged from the offences under the Indian
Penal Code, 1860 and so also, for the offences under the
Prevention of Corruption Act, 1988. But in pursuance of
the order passed in SLP (Civil) No.7366-7367/2010 by
Hon'ble Supreme Court wherein a direction was given to
CBI to investigate certain illegalities committed by various
persons in the matter of mining lease No.1111 of
M/s.NMDC. Accordingly, the CBI registered FIR in RC
No.19(A)/2011 and took up the case for investigation. As
already contended in the year 1966 the Government of
Karnataka sanctioned mining lease in ML No.636 to an
extent of 50 acres of Kammatervu Village of Sanduru
Taluk, Bellary District in favour of Mr.Motilal.J.Boal for 20
years i.e., from 1966 to 1986. In the year 1972 the
Government of Karnataka on 18.10.1972 sanctioned
another lease in favour of NMDC under ML.No.1111 for a
period of 20 years to an extent of 1600 acres in the Forest
Area of Subbarayana Halli and Kumaraswamy range. But
the NMDC had occupied excess area to an extent of 1705
acres, i.e., about 105 acres was more than the lease
granted which was found by the DMG Department in the
year 1991. Therefore, NMDC was asked to surrender the
excess area occupied. Further, in the year 1980
Mr.Motilal.J.Boal had transferred the lease in favour of a
partnership firm M/s.DMS and the same has been
approved by Government of Karnataka by order dated
30.06.1980 under Ref.No.C.I-71-MML-1980. These are all
the contentions made by learned senior counsel.
52. It is further contended that the Government of
Karnataka issued a letter dated 4.6.1987 clarifying that
the lease area of M/s.Deccan Mining Syndicate is outside
the lease area of M/s.NMDC. M/s.Deccan Mining
Syndicate which was a partnership firm converted into
company by name M/s.Deccan Mining Syndicate Private
Limited and its Managing Director was Mr.Sumermal
Manmal Jain, the father of accused No.1 and Accused-2
company continued the mining operation without any
hindrance. Further, it is contended that accused No.2
Company had applied for second instalment of first
renewal because the first instalment of first renewal was
going to expire in the year 1996. Accordingly, second
instalment of first renewal was sanctioned and it was
extended for another ten years from 1996 to 2006 by
modified sketch vide notification dated 29.1.1999 under
ML No.2080A. These are all the contentions made by
learned senior counsel relating to role of accused Nos.1, 2
and 3 relating to filing of application seeking discharge as
no charges were made against them. Even the charge
sheet has been laid by the CBI in pursuance of
registration of crime by CBI. The trial Court has
considered the entire material evidence secured by the
investigating officer during the course of investigation and
also recorded the statement of witnesses which cited in
the charge sheet column. Therefore, it does not arise for
call for interference and there are no justifiable grounds
assigned in the petition as filed by the CBI by challenging
the impugned order passed by the trial Court as stated
supra.
53. It is further contended that M/s.NMDC had
complained about encroachment made by M/s.DMSPL in
its area. Therefore, while effecting renewal of second
instalment of first renewal, the Officer of Mining
Department LW-100 Mr.Ravikumar and accused No.4
Smt.Shameem Banu conducted spot inspection and found
that the boundary demarcated by the officials at the time
of grant of lease in favour of accused No.2 Company was
little different from the sketch enclosed to the lease deed
and therefore, they want to change the sketch in
consonance with the actual demarcated area by officials,
where the accused No.2 Company was undertaking
mining operations and accordingly, a modified sketch was
prepared and renewal was effected in favour of Accused
No.2 company by issuing notification dated 29.1.1999
under notification No.CI-51-MMM-97 under lease deed
No.ML 2080A.
54. Whereas accused No.2 was in mining operation
in the area since 1966 which was demarcated at the
beginning and which was confirmed by issuing modified
sketch by Government of Karnataka and renewed the
lease for another ten years. Accordingly, accused No.2
company had undertaken mining operation by following
all procedures prescribed by DMG Department including
payment of royalty and obtaining of permit. Thereby no
illegality was committed by accused No.2 Company.
Further, accused No.2 Company had filed an application
for renewal. The Government of Karnataka renewed the
modified sketch of ML No.2080A for a period of 20 years
as second renewal from 2006 to 2026 by notification dated
20.05.2006. Thereby, accused No.2 company was
authorized to do mining in its area under ML No.2525
dated 15.06.2006. Since the NMDC was holding excess of
105 acres, it was directed to surrender and while
surrendering, it has surrendered 105 acres from
Harishankar Temple side and tried to grab the
surrounding area of Accused No.2's lease area and
regarding this Government of Karnataka has issued
Notification No.CI-35 MML 2005 dated 4.4.2005, renewing
the lease of NMDC for 20 years, with this changed sketch
w.e.f. 18.10.2002. These are all the contentions taken by
learned Senior counsel for accused Nos.1, 2 and 3 relating
to seeking discharge from the offences lugged by the
CBI/ACB by filing charge sheet against these accused and
even thorough investigation has been done and
investigating officer has secured statement of witnesses
and also several documents. But there cannot be the
ingredients for committing the offences as alleged against
accused Nos.1, 2 and 3.
55. It is further contended that both writ petitions of
accused No.2 company and of NMDC which are
W.P.No.19766/2005 and W.P.No.10335/1998 was
together considered and final order is passed by order
dated 31.3.2008. Insofar as para 17, 23 of the order, it is
confirmed that, all the renewals from 1966 to 2006-2026
are correct. The order of the High Court is to the effect
that the lease area of NMDC commences from the side of
Harishankar Temple marked as 'A' and 1600 acres of it
will continue up to the point 'Q' and from point 'Q' it
continues to and ends at point 'A' in the sketch drawn by
the Surveyor which was surveyed as per the direction of
High Court and this sketch in the charge sheet is D-8e. It
is further held that since 1600 acres commences from
Harishankar Temple side i.e., point 'A' it ends before the
mining area of accused No.2 - M/s.DMSPL and in
between a gap of more than 105 acres and thereby the
NMDC area do not encircle the lease area of accused No.2,
and therefore, the allegation of encroachment in NMDC
mine area by accused No.2 Company does not arise.
Therefore, no offence is committed by accused No.2.
56. Further, the order passed in writ petition was
challenged by filing writ appeal in W.A.No.1134/2008 and
W.A.No.1135/2008 by NMDC. But later it has withdrawn
the writ appeal by order dated 12.8.2011 and thereby the
order passed in writ petition has attained finality.
Whereas the Hon'ble Supreme Court had taken up the
SLP No.7366-7367/2010 and directed CEC team for
enquiry regarding illegal mining in Bellary District and
also directed joint team to conduct survey and at that
juncture, this NMDC suppressing the order of High Court
in W.P.No.10335/1998 and W.P.No.19766/2005 made
false allegation of illegal mining against accused No.2
company before CEC and thereby the CEC was mislead
and on the basis of CEC report without hearing accused
No.2 Company, the Hon'ble Supreme Court directed for
investigation by order dated 23.09.2011 and consequent
upon this order FIR in RC No.19(A)/2011 was registered
by CBI against accused Nos.1 to 3 and investigation was
taken up by CBI. The observation made by the Hon'ble
Supreme Court was only to refer the matter of
investigation and the same cannot be relied upon.
Though during the investigation the investigating officer of
CBI seized the order copy of the order passed in writ
petition by High Court where it is clearly stated that
NMDC lease area do not encircle the lease area of accused
No.2 company, the CBI investigation officer misdirected its
investigation and filed charge sheet against Accused Nos.1
to 7 for the offences under Sections 120-B r/w Sections
379, 420, 427, 447 of IPC and Section 13(2) r/w Section
13(1)(d) of Prevention of Corruption Act.
57. Lastly, it is contended relating to the role of
these accused that CBI being an investigating agency on
filing of defective charge sheet, the trial Court has
mechanically taken cognizance for the aforesaid offences
and registered the case in Spl.CC No.165/2013. But
during investigation accused Nos.1 and 3 were arrested on
5.6.2013 and later they were released on bail. The only
allegation against accused No.3 in the charge sheet is that
he was the Chief Executive Officer of Accused No.2
Company and while so working he has dispatched the iron
ore material to the extent of 1,47,095 MTs with delayed
permit. Before dispatch of iron ore the application for
grant of permit was filed by depositing entire royalty
amount by way of DD but the DMG department failed to
issue permit in time and in the meanwhile a railway rack
had reached the railway stock yard area, the iron ore was
loaded and thereafter the permit was released and the
same was acknowledged by purchaser and this kind of
discrepancy do not constitute any offence under law as
held by the High Court in W.P.No.3167/2009. Therefore,
no offence is committed by accused Nos.1, 2 and 3.
When no offence is constituted against Accused Nos. 1
and 3 as the offences alleged are under the Indian Penal
Code and for which no statutory vicarious liability is
defined under Indian Penal Code for the offences alleged.
Therefore, the accused Nos.1 to 3 had applied for
discharge by filing applications under Section 239 of
Cr.P.C. which were allowed by the impugned order in
discharging them by the trial Court. The impugned order
do not suffer from any illegality but it is based on valid
and detailed reasons and therefore, the criminal revision
petition filed by the petitioner - CBI does not call for
interference by this Court. Accordingly, the petitions are
liable to be dismissed inlimine.
58. In support of his arguments, learned Senior
counsel has facilitated the following reliances of the
Hon'ble Supreme Court:
(i) Sanjay Kumar Rai vs. State of Uttar Pradesh
AIR 2021 SC 2351
In this judgment it is held that "further, it is well
settled that the trial court while considering the discharge
application is not to act as a mere post office. The court
has to sift through the evidence in order to find out
whether there are sufficient grounds to try the suspect.
The court has to consider the broad probabilities, total
effect of evidence and documents produced and the basic
infirmities appearing in the case and so on."
(ii) Century Spinning and Manufacturing
Co.Ltd vs. The State of Maharashtra
(AIR 1972 SC 545)
In this judgment it is observed that "it cannot be
said that the Court at the stage of framing the charges
had not to apply its judicial mind for considering whether
or not there is a ground for presuming the commission of
the offence by the accused. The order framing the charges
does substantially affect the person's liberty and it cannot
be said that the court must automatically frame the
charge merely because the prosecution authorities by
relying on the documents referred to in S.173 consider it
proper to institute the case. The responsibility of framing
the charges is that of the court and it has to judicially
consider the question of doing so. Without of adverting to
the material on record, it must not blindly adopt the
decision of the prosecution. The trial Court rightly came
to the conclusion that the prosecution for the offence
charged was groundless. Order of discharge made by him
was eminently just and fair order."
(iii) Union of India vs. Prafulla Kumar Samal
(AIR 1979 SC 366)
In this judgment it is observed that "the test to
determine a prima facie case could naturally depend upon
the facts of each case and it is difficult to lay down a rule
of universal application. By and large however if two views
are equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he
will be fully within his right to discharge the accused."
(iv) State of Orissa vs. Debendra Nath Padhi
(2005) 1 SCC 568
In this reliance it is held that "further, the scheme of
the Code when examined in the light of the provisions of
the old Code of 1898, makes the position more clear. In
the old Code, there was no provision similar to Section
227. Section 227 was incorporated in the Code with a
view to save the accused from prolonged harassment
which is a necessary concomitant of a protracted criminal
trial. It is calculated to eliminate harassment to accused
persons when the evidential materials gathered after
investigation fall short of minimum legal requirements. If
the evidence even if fully accepted cannot show that the
accused committed the offence, the accused deserves to
be discharged."
(v) Sunil Bharti Mittal v. Central Bureau of
Investigation (AIR 2015 SC 923)
The Hon'ble Supreme Court in this judgment has
observed that "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 mensrea, it would normally
be the intent and action of that individual who would act
on behalf of the company. It would be moreso, when the
criminal act is that of conspiracy. However, at the same
time, it is the cardinal principle of criminal jurisprudence
that there is no vicarious liability unless the statute
specifically provides so.
59. These are all the reliances which are squarely
applicable to the present case in respect of role of accused
Nos.1, 2 and 3 and equally applicable to the co-accused
Nos.4, 5 and 6 also. On all these grounds, learned Senior
counsel seeking for dismissal of the criminal revision
petitions in Crl.RP No.1475/2016 and Crl.RP
No.1478/2016 filed by the CBI by challenging the
impugned order passed by the Court below in Spl.CC
No.165/2013 dated 30.01.2016.
60. Whereas learned Senior counsel Sri Uday Holla
in Crl.R.P.No.1479/2016 relating to Accused No.4 in
respect of the I.A.No.7 filed under Section 239 of Cr.P.C.
contends that the Court below has considered the reasons
assigned in the application and has passed well reasoned
order by considering all the materials which secured by
the investigating agency i.e., CBI and role of this
petitioner/accused No.4 do not constitute any offence.
Therefore, the contentions which are made in respect of
accused Nos.1, 2 and 3 and remaining accused but role of
each one of accused has to be distinctly taken into
consideration. Accused No.4 - Smt.Shameem Bhanu was
working as Secretary-II, Department of Commerce and
Industry during the relevant period. Though the
prosecution has mentioned in the charge sheet that no
sanction is required for taking cognizance and conducting
criminal proceeding against her, but under Section 197 of
Cr.P.C. it is mandatory that whenever a Court takes
cognizance of the offence against a public servant accused
of an offence and if the offence is committed in discharge
of official duty, even in respect of a past public servant,
sanction is necessary. Admittedly, no sanction is
obtained for prosecuting accused No.4. as required under
Section 197 of Cr.P.C. Therefore, in the absence of
sanction being taken, the prosecution cannot be
proceeded against accused No.4 and the order of trial
Court allowing the application filed by accused No.4 and
discharging accused No.4 is just and reasonable.
61. In support of his contentions learned Senior
Counsel has placed the following reliances:
(i) Indra Devi vs. State of Rajasthan and
another - 2021 (8) SCC 768
In para 10 of the Judgment it is extensively
addressed with regard to Section 197 seeks to protect an
officer from unnecessary harassment who is accused of an
offence committed which acting or purporting to act in the
discharge of his duties. The yardstick is to see whether
the act or omission had reasonable connection with the
discharge of his duties.
(ii) Anil Kumar and others Vs. M.K.Aiyappa and
another - 2013 (1) SCC 705
In this judgment it is held that in the absence of
sanction, Magistrate cannot even order investigation
under Section 153.
(iii) Rajib Ranjan vs. R.Vijaykumar - 2015 (1)
SCC 513
In para - 14 of the judgment it is held that without
sanction cognizance not permissible. In para 15 it is held
that if act is even remotely connected with official act,
Section 197 is attracted.
(iv) N.Bhargavan Pillai vs. State of Kerala - 2004
(13) SCC 217
Protection of sanction needed under Section 197
even after public servant has retired. (para 8-10)
(v) N.K.Ganguly vs. CBI, New Delhi - 2016 (2)
SCC 143
Prosecution of official / public servant accused of
offence under Section 120-B and Section 13 of P.C.Act. It
is held that in the absence of sanction under Section 197
of Cr.P.C. complaint is liable to be quashed. Hence, the
complaint came to be quashed by the Supreme Court.
62. These are all the reliances which are produced
by learned Senior Counsel relating to accused No.4 in
respect of I.A.7 seeking discharge and that application has
been considered by the Court below by rendering the
impugned order in Spl.CC No.165/2013 dated 30.01.2016
and almost all materials which secured by the
investigating officer which has been considered by the trial
Court and sound reasons has been assigned and
justifiable reasons has been assigned relating to discharge
of the accused for the offences under Indian Penal Code,
1860 and so also, offence under the provisions of
Prevention of Corruption Act, 1988 which reflected in the
charge sheet laid by the investigating officer.
63. Whereas learned counsel Sri Kalyan Basavaraj
in respect of Accused No.5 in Crl.RP No.1476/2016 has
taken the contention relating to the role of this accused
No.5 and also has placed certain reliances. He would
contend that Accused No.5 was charge sheeted by the
investigating agency in respect of the offences under
Sections 120B, 379, 420, 427, 447 of IPC, 1860 besides
Section 13(1)(d) r/w 13 (2) of P.C.Act, 1988. But the CBI
has, in its charge sheet dated 02.08.2013, very
simplistically stated in para 24 that "the sanction for
prosecution is not required for the accused public
servants Smt.Shameem Bhanu (A-4), Shri N.Viswanathan
(A-5) and Shri S.P.Raju (A-6) since they have all retired
from service. But on the date of the alleged commission of
offences, Accused No.5 was discharging the duties of the
Principal Secretary in the Department of Industries and
Commerce, which is an undisputed fact.
64. It is stated that there was no prior sanction as
required under Section 197 of the Cr.P.C., before initiation
of prosecution against Accused No.5, who was the public
servant on the relevant date. The relevant portion of
Section 197 of the Cr.P.C. reads thus:
"1. When any person who is or was a
Judge or Magistrate or a public servant not
removable from his office save by or with the
sanction of the Government is accused of any
offence alleged to have been committed by him
while acting or purporting to act in the discharge
of his official duty, no Court shall take cognizance
of such offence except with the previous sanction-
(a) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed
or, as the case may be, was at the lime of
commission of the alleged offence employed, in
connection with the affairs of a State, of the State
Government"
65. Further it is contended that as could be gathered
from the allegations made in the charge-sheet, it is evident
that Accused No.5, during the course of discharging
duties, has allegedly committed the offences. The
allegations found in the charge-sheet are that Accused
No.5 in the first reference dated 22.04.1998 made to the
Government of India, seeking for an altered / modified
mining sketch was concealed and the said approved letter
was not put up to Accused No.4 / Secretary-II and the
same was prepared as per his (Accused Nos.5) orders.
66. It is stated that at any stretch of imagination it
cannot be inferred that the said discharge of duty is
alleged to be an offence was allegedly committed by
Accused No.5 can be treated as the one which was outside
the purview of official duty. Further, Accused No.5 had
made some official notes on the file in the regular course
of discharging his duties and the administrative orders
passed from time to time as found in the file related to the
case on hand, no criminality could be attributed.
Absolutely there are no allegations, which constitute the
offences under the provisions of the PC Act. The element
of quid pro quo which is an essential fact to constitute an
offence under the PC Act, is not forthcoming in the
charge-sheet allegations.
67. Lastly, it is contended that as regards the
accusations under the IPC, the theory of conspiracy is
also not made out let alone the offences under Sections
411, 444 and 468 of the IPC, Sections 13(1)(d) read with
Section 13(2) of the PC Act, Section 26 of the Indian
Forest Act, 1927, Section 21 read with Sections 4(1),
4(1)(A) and Section 23 of the Mines & Minerals
(Development & Regulation) Act, 1957. It is further
contended that the protection of previous sanction is
available to a public servant even if he has ceased to be so
by the time the Court is asked to take cognizance of the
offence committed by him when he was a public servant
while acting or purporting to act in the discharge of his
official duties under Section 197 of the Cr.P.C. When a
person who is or was a public servant, and removable
from office save with the sanction of the Government, is
accused of an offence committed by him while acting or
purporting to act in the discharge of his official duties,
then no court can take cognizance of an offence without
the prior sanction of the Government which was
competent to remove him from office at the time of
commission of the offence. Thus, if a public servant is to
be prosecuted after retirement in respect of an offence
committed by him while in service in the course of his
official duties, then sanction of the authority which was
competent to remove him from office at that time, should
be obtained.
68. It is contended that the learned trial Judge has
rightly found that there was no prior sanction to prosecute
Accused No.5. In fact, Accused No.5 and Accused No.4
are on a similar footing insofar as the allegations of
commission of offences under the IPC, though there is no
specific allegation made in the PC Act, 1988.
69. The material collected by the prosecution and
having regard to the allegations made in the charge-sheet
and particularly having regard to the fact that there was
no prior sanction to prosecute Accused No.5, the Trial
Court has rightly found that Accused No.5 is entitled to be
discharged under Section 227 of the Cr.P.C.
70. The conspiracy as alleged has not been made out
by the investigating agency / CBI even though filing of
charge sheet consisting plethora of material which
secured by the investigating officer during the course of
investigation and also recording statement of witnesses in
pursuance of the order by registering FIR in RC
No.19(A)/2011. In support of his contentions, the learned
counsel for Accused No.5 has placed reliance on the
following citations:
1. Indra Devi vs. State of Rajasthan and Others with
State of Rajasthan vs. Yogesh Acharya ((2021) 8 SCC 768)).
The relevant portion in the said judgment, reads thus:
"10. We have given our thought to the
submissions of learned counsel for the parties.
Section 197 of the CrPC seeks to protect an officer
from unnecessary harassment, who is accused of
an offence committed while acting or purporting to
act in the discharge of his official duties and,
thus, prohibits the court from taking cognizance of
such offence except with the previous sanction of
the competent authority. Public servants have
been treated as a special category in order to
protect them from malicious or vexatious
prosecution. At the same time, the shield cannot
protect corrupt officers and the provisions must be
construed in such a manner as to advance the
cause of honesty, justice and good governance.
[See Subramanian Swamy Vs. Manmohan Singh
(2012) 3 SCC 64)]. The alleged indulgence of the
officers in cheating, fabrication of records or
misappropriation cannot be said to be in
discharge of their official duty. However, such
sanction is necessary if the offence alleged
against the public servant is committed by him
"while acting or purporting to act in the discharge
of his official duty" and in order to find out
whether the alleged offence is committed "while
acting or purporting to act in the discharge of his
official duty", the yardstick to be followed is to
form a prima facie view whether the act of
omission for which the accused was charged had
a reasonable connection with the discharge of his
duties. [See State of Maharashtra Vs. Dr.
Budhikota Subbarao (1993) 3 SCC 339]. The real
question, therefore, is whether the act committed
is directly concerned with the official duty.
11. We have to apply the aforesaid test to
the facts of the present case. In that behalf, the
factum of Respondent No.2 not being named in
the FIR is not of much significance as the alleged
role came to light later on. However, what is of
significance is the role assigned to him in the
alleged infraction, i.e. conspiring with his
superiors. What emerges therefrom is that insofar
as the processing of the papers was concerned,
Surendra Kumar Mathur, the Executive Officer,
had put his initials to the relevant papers which
was held in discharge of his official duties. Not
only that, Sandeep Mathur, who was part of the
alleged transaction, was also similarly granted
protection. The work which was assigned to
Respondent No.2 pertained to the subject matter
of allotment, regularisation, conversion of
agricultural land and fell within his domain of
work. In the processing of application of
Megharam, the file was initially put up to the
Executive Officer who directed the inspection and
the inspection was carried out by the Junior
Engineer and only thereafter the Municipal
Commissioner signed the file. The result is that
the superior officers, who have dealt with the file,
have been granted protection while the clerk, who
did the paper work, i.e. Respondent No.2, has
been denied similar protection by the trial court
even though the allegation is of really conspiring
with his superior officers. Neither the State nor
the complainant appealed against the protection
granted under Section 197 of the CrPC qua these
two other officers."
Section 197 of Cr.P.C. provides protection to an
Officer being prosecuted in respect of the offences
committed by him while acting or purporting to act during
the course of his discharge of his duties.
Whether there was any commission of an offence
and the same had reasonable connection with discharge of
his duties.
N.K. Ganguly vs. Central Bureau of Investigation,
New Delhi ((2016) 2 SCC 143)) wherein it is held thus:
"Criminal Procedure Code, 1973 - S. 197 -
Prosecution of public servants - Previous sanction
from appropriate Government - Essentials of - Nexus
with discharge of public duty - Examination and
Determination of - Prosecution for offences under S.
120-B IPC r/w Ss. 13(1)(d) and (2), Prevention of
Corruption Act, 1988 - Cognizance taken and
summons issued to accused public servants -
Allegations in police report showing that alleged
offences committed in discharge of official duty i.e.
the necessary nexus - Absence of previous sanction
- Proceedings quashed."
C.K. Jaffer Sharief vs. State (Through CBI)
(Crl.A.No.1804 /2012 (Arising out of SLP (Crl.)
No.3841/2012) wherein it is held thus:
"Code of Criminal Procedure, 1973 - Sections
239 / 227 - Discharge - Cognizance of offence under
Section 13(2) read with Section 13(1)(d) of Prevention
of Corruption Act, 1988 taken against appellant -
Allegation against appellant that during his tenure as
Union Railway Minister from 21.06.1991 to
13.10.1995 - He dishonestly made Managing
Directors of R.I.T.E.S and I.R.C.O.N. to approve
journeys of four persons to London in connection with
medical treatment of appellant - Ingredients of Section
13(1)(d) - On facts held, no offence under Section 13(2)
read with Section 13(1)(d) made out against appellant
- Impugned orders set aside - Criminal proceedings
against appellant quashed."
71. On all these premises it is contended that the
findings recorded by the trial Court is well founded and
does not warrant interference and accused No.5 relies
upon the judgments of the Hon'ble Supreme Court and
submits that they are squarely applicable to the present
given facts and circumstances of the case on hand and
the same may be considered and dismiss the criminal
revision petition filed by CBI/ACB in limine and being
devoid of merits.
72. Whereas learned counsel Sri Chandan for
Respondent No.6 / accused No.6 - Sri S.P. Raju, Retired
Deputy Director, Mines & Geology, Hospet who is the
respondent in Crl.R.P.No.1477/2016 contends that vide
order dated 23.09.2011, the Hon'ble Supreme Court of
India in SLP (Civil) No.7366-7367/2010 directed the CBI
to carry out the investigation in the alleged illegalities
including encroachment by M/s.Deccan Mining Syndicate
in the area leased out to M/s. NMDC. Pursuant to the
said order, CBI registered FIR in RC.No.19(A)/2011
against Accused Nos.1 to 7 for the offences punishable
under Sections 120B, 379, 420, 427, 447 of IPC and
Section 13(2) r/w Section 13(1)(d) of the P.C.Act.
Subsequently, the investigating officer took up the case for
investigation and thoroughly investigation was done and
laid the charge sheet against accused Nos.1 to 7 for the
aforesaid offences whereby accused were secured to facing
of trial and during the course of pendency of the case in
Spl.CC No.165/2013 whereby Accused No.6 filed an
application in I.A.24 seeking discharge and that
application came to be allowed.
73. It is contended that the prosecution has failed to
obtain order of sanction from appropriate authority in
respect of the offences under IPC that have been filed
against accused No.6. The accused No.6 was Deputy
Director of Mines at the relevant period between
20.07.2009 and 29.10.2009 and thereafter from
18.1.2010 to 14.3.2011. In the charge sheet submitted by
the CBI, it is admitted that no sanction for prosecution
has been obtained for accused No.4 to 6 since they have
retired from public service. The said reasoning is contrary
to law laid down by the Hon'ble Supreme Court which
requires sanction order to be obtained even to initiate
prosecution against retired public servants.
74. It is further contended by the learned counsel for
Accused No.6 / Respondent in Crl.R.P.No.1477/2016 that
no cogent evidence has been produced by the prosecution
to implicate this respondent. Further, the charge-sheet
also does not disclose any credible evidence or witness
statements against the respondent. The sole allegation
against the respondent herein is found at paragraph 18 of
the charge-sheet which relates to issuance of permit for
transportation of iron ore and the same is vague and
based on presumptions.
75. It is the further contention of learned counsel
that Accused No.2 / Company had already applied for
dispatch permits on various dates starting from
30.08.2007 to 07.09.2007 for transporting various
quantities of iron ore and the respondent herein had
issued permits on 07.09.2007. Mere delay in issuance of
permits cannot be said to be an illegality and malafide
action on the part of the sixth respondent who was
discharging his official functions. It is further contended
that Respondent in Crl.R.P.No.1477/2016 / Accused No.6
adopts the contentions advanced by Accused Nos.1 to 3 to
the extent that when at the very foundation no illegality is
made out and that the contentious issue of jurisdiction for
mining rights between NMDC and Accused Nos.1 to 3 was
decided by this Court in favour of Accused Nos.1 to 3,
without prejudice to respondent No.6, no liability can be
fastened on him as well. In other words, when the actions
themselves do not attract any criminality, there is no
question of any criminality attracting the conduct of
Accused No.6 as well who in his capacity as a public
servant, has executed his duties. The same would entirely
erase the scope and applicability of Section 120-B of the
IPC, which is the main provision used by the prosecution
to attach criminal liability upon Accused No.6. In support
of his contentions, the learned counsel for Accused No.6
relied on the following citations, in support of his
contentions:
1) R. Balakrishna Pillai vs. State of Kerala (AIR 1996
SC 901). At paragraph 5 of the said judgment, it is laid
down thus:
"5. . . .
The question whether the acts complained
of had a direct nexus or relation with the
discharge of official duties by the concerned
public servant would depend on the facts of each
case. There can be no general proposition that
whenever there is a charge of criminal conspiracy
levelled against a public servant in or out of office
the bar of Section 197(1) of the Code would have
no application. Such a view would render Section
197(1) of the Code specious. Therefore, the
question would have to be examined in the facts
of each case. The observations were made by the
court in the special facts of that case which
clearly indicated that the criminal conspiracy
entered into by the three delinquent public
servants had no relation whatsoever with their
official duties and, therefore, the bar of Section
197(1) was not attracted. It must also be
remembered that the said decision was rendered
keeping in view Section 197(1), as it then stood,
but we do not base our decision on that
distinction. Our attention was next invited to a
three-Judge decision in B. Saha & Ors. vs. M.S.
Kochar (1979 (4) SCC 177). The relevant
observations relied upon are to be found in
paragraph 17 of the judgment. It is pointed out
that the words 'any offence alleged to have been
committed by him while acting or purporting to
act in the discharge of his official duty' employed
Section 197(1) of the code, are capable of both a
narrow and a wide interpretation but their
Lordships pointed out that if they were construed
too narrowly, the section will be rendered
altogether sterile, for, "it is no part of an official
duty to commit an offence, and never can be". At
the same time, if they were too widely construed,
they will take under their umbrella every act
constituting an offence committed in the course of
the same transaction in which the official duty is
performed or is purported to be performed. The
right approach, it was pointed out, was to see
that the meaning of this expression lies between
these two extremes. While on the one hand, it is
not every offence committed by a public servant
while engaged in the performance of his official
duty, which is entitled to the protection. Only an
act constituting an offence directly or reasonably
connected with his official duty will require
sanction for prosecution. To put it briefly, it is the
quality of the act that is important, and if it falls
within the scope of the afore-quoted words, the
protection of Section 197 will have to be extended
to the concerned public servant. This decision,
therefore, points out what approach the Court
should adopt while construing Section 197(1)of
the Code and its application to the facts of the
case on hand."
(emphasis supplied)
State of Karnataka vs. V. Chandrashekhar
(Crl.R.P.790/2015 decided on 09.02.2022). The relevant
paragraphs 14 and 15 of the said judgment reads thus:
"14. Therefore it is clear that the amended
Section makes it very clear that sanction is
necessary not only for subjecting a public servant
while in service (or who is in service) but also a
public servant who has retired from service (who
was in service). This amendment is by way of
substitution, and it takes effect from the inception
in the sense it must be understood as if the
substituted provision is there from the day when
the law was enacted. This position is made clear
by the Division Bench of this Court in the case of
PUSHPALATHA N.V. VS. V.PADMA AND OTHERS
(ILR 2010 KAR 1484). Though this decision was
rendered in an appeal arising from a suit, for the
purpose of understanding the effect of
amendment by substituting a provision of law, it
can be referred to here. What is held is as below:
"52. This declaration and conferment of
right in coparcenary property, a salient and
distinguishing feature of a coparcenary property
in Mitakshara, is the right by birth. Once
daughter is conferred the right of a coparcener, it
follows that, she would get a right by birth in the
coparcenary property. When the amending Act
came into force in 2005, naturally the question
and a doubt would arise, as to when the
daughter would get that right. The Parliament
realised this problem and did not want to leave
any one in doubt about its intention. It is
expressly stated in the section itself that this
"right is by birth", leaving no scope for
interpretation. This amendment is introduced by
way of substitution. The result is, this amended
provision is there in the statute on the day it came
into force i.e, 17-6-1956. From that day till the
amendment Act came into force on 9-9-2005, the
daughter of the coparcener was not a coparcener
and she became a coparcener only from 9-9-
2005. Though her status was so declared on 9-9-
2005, she has been given right in the coparcenery
property from the date of her birth. It would result
in absurdity. Therefore, what the Parliament did
was to use the phrase, "on and from the
commencement of the Hindu Succession
(Amendment) Act, 2005", as the opening words of
the Section, thus removing the absurdity.
(emphasis supplied)
15. Thus seen, it may be stated that the
amendment brought to Section 19 of the
Prevention of Corruption Act by Act No.16 of 2018
is to be understood as if it came into effect from
the date the Prevention of Corruption Act was first
given into effect i.e., from 09.09.1988. This being
the change in law, definitely the respondent can
contend that he cannot be prosecuted without
sanction and his retirement from service does not
make any difference in the matter of obtaining
sanction. Therefore the argument of Sri
B.S.Prasad cannot be accepted, I do not find any
infirmity in the ultimate conclusion taken in the
impugned order to discharge the respondent. The
revision petition fails and it is dismissed."
On all premises learned counsel for Accused No.6
submits that the Court below has rightly allowed the
application filed by Accused No.6 and discharged of the
offences leveled against him and same requires no
interference of this Hon'ble Court and the revision petition
filed by the petitioner - CBI/ACB may be dismissed being
devoid of merits.
76. Whereas learned counsel Sri Sagar B.B. in
Crl.R.P.No.1486/2016 for respondent / accused No.7
namely Ramakant Y.Hullar contends that accused No.7,
was working as Circle Inspector or Police, Sandur at the
relevant period. It is contended that pursuant to the
direction of the Hon'ble Supreme Court of India, the CBI
anti corruption branch registered an FIR in
RC.No.19(A)/2011 for the offences under Sections 120B
r/w 379, 420, 427 and 447 of IPC and under Section
13(2) r/w 13(1)(d) of P.C.Act and so also, under Sections
4(1), 4(1)(A) and 23 of the Mines and Minerals
(Development and Regulation) Act, 1963 and under
Section 24 of the Karnataka Forest Act, 1963 and
conducted investigation where accused No.7 was also
arraigned as an accused in the FIR. The only allegation
as against this accused in the charge sheet is that he
being the Station House Officer of Sandur Police Station
did not act upon the complaints made by M/s.NMDCL
and failed to prevent illegal transportation of iron ore.
It is contended that the allegations even if accepted as
gospel truth do not constitute any of the offences as
imputed as against this accused. In view of the
decisions of the High Court of Karnataka that lease area
of M/s.NMDC in M.L.No.1111 is not at all encircling
lease area of accused No.2, the case of the prosecution
that Accused No.7 failed to register case against
M/s.DMSPL and its employees, only in order to help
them for extraneous consideration does not hold any
water. It is contended that it is the duty of the Sub-
inspector of any police station to register any complaint
made by the public and at the best role of accused for
that matter is to supervise the duties of his subordinate.
It is further contended that it is not the case of the
prosecution when the sub inspector of Sandur Police
Station did not register the complaint, the same was
brought to the notice of the accused and inspite of it he
has not acted, if there was a written intimation by any
of the aggrieved person to that even then the inaction on
the part of this accused only amount to misconduct and
accused has not committed any of the offences
impugned against him. Even if entire prosecution case
accepted against Accused No.7 as it is, it may amount
to dereliction of duty and for that the offence under
Section 13(1)(d) r/w 13(2) of the P.C.Act, 1988 cannot
be attributed, as held by the trial Court. The trial Court
has held that since prosecution has failed to prove from
the statements of witnesses under Section 161 of
Cr.P.C. as well as documents relied by it that Accused
No.2 Company has encroached area of NMDC and
thereby it has illegally carried out mining operation and
exported iron ore from the area does not belongs to
them does not holds any water as area leased to
M/s.DMSPL - accused No.2 is not at all encircling in
any direction to the area of M/s.NMDC. Therefore, no
ingredients have been constituted relating to the
offences lugged against accused No.7 in the petition
filed by challenging the impugned order passed by the
trial Court in Spl.C.C.No.165/2013 dated 30.01.2016.
Therefore, the petition relating to the role of Accused
No.7 does not arise warranting interference of the
impugned order passed by the trial Court discharging
the accused No.7. The petition filed by CBI/ACB is
devoid of merits and hence, seeks for dismissal of the
petition.
77. It is in this context of the contentions made by
learned Senior counsel namely Sri Hashmath Pasha in
respect of Accused Nos.1 to 3, learned Senior counsel
namely Uday Holla in respect of Accused No.4, learned
counsel in respect of other accused, it is relevant to
refer the charge sheet wherein it is alleged that in the
year 1966, Government of Karnataka had sanctioned
Mining Lease in favour of Mr.Motilal J.Boal under
Mining Lease No.ML-636 in Kammatervu village,
Sandur Taluk, Bellary District to an extent of 50 acres
in which 3 acres as forest area towards North-Eastern
side. The Mining Lease that was granted was for a
period of 20 years. To this mining lease, initially sketch
was also accompanied. At the time of grant of mining
lease, the officials in the Department of Mines and
Geology had demarcated the area by fixing the
boundaries of lease granted in favour of Mr.Motilal
J.Boal. In the year 1980, Mr.Motilal J.Boal had
transferred the said mining lease in favour of
partnership firm by name M/s.Deccan Mining Syndicate
and the same was approved by Government of
Karnataka on 30.06.1980 in CI-71.MML-1980. Since
then M/s.Deccan Mining Syndicate having become
owner of the mining lease continued the mining
operation in the demarcated area. Before completion of
period of 20 years, as per the procedure, M/s.Deccan
Mining syndicate applied for first renewal of mining
lease in its favour by filing an application in the year
1985. The Government of Karnataka with prior
approval of Government of India renewed the mining
lease for a period of 10 years. Accordingly, M/s.Deccan
Mining Syndicate continued the mining operation. Even
at the stage of renewal of lease in the year 1986 when
the recommendation for renewal of lease in favour of
accused No.2, the State Government had written letter
dated 4.6.1987 clarifying that the area of M/s.Deccan
Mining Syndicate (accused No.2) was outside the area of
M/s.NMDC and it falls in revenue land of Deogiri
village. Hence, the area of M/s.Deccan Mining Syndicate
is a separate one and does not lie within the area of
1,600 acres of M/s.NMDC under ML No.1111.
78. Whereas in the charge sheet it is alleged that
when the first renewal of 10 years was about to lapse,
on behalf of accused No.2 M/s.Deccan Mining
Syndicate, an application for second renewal was filed
before the Department of Mines and Geology complying
all formalities in the year 1995. This application for
second renewal was under process before the
Department of Mines and Geology and also at the
Secretariat level. In the year 1972, Government of
Karnataka had granted another mining lease No.ML-
1111 in favour of M/s.NMDC to an extent of 1600 acres
of Subbarayana Halli and Kumara Swamy range. The
application of accused No.2 company for second renewal
was being processed by the Department of Mines and
Geology and also the Secretary -II of Commerce and
Industries Department, Government of Karnataka and
then, they found that accused No.2 company had
undertaken mining operation in the demarcated area.
When an application for second renewal was filed by
accused No.2 Company, it had enclosed the sketch that
was sanctioned along with the mining lease granted in
the year 1966 and renewed in the year 1985 under ML
Nos.636 and 2080. While conducting spot inspection
and survey, these officials said to have compared the
sketch that was sanctioned with that of the area
demarcated at the field and found that there was
difference between the map and the demarcated area.
But it was found that accused No.2 Company had
undertaken mining operation in the demarcated area
and that was noted as 'worked area' by it.
79. Further, as per the letter dated 8.11.1995 of
the Deputy Commissioner of Bellary on such fresh
survey and inspection, these officials found that
M/s.Deccan Mining Syndicate has not done any mining
activities in the Forest Land. A report was submitted
that this accused No.2 Company is doing mining activity
within the area of the boundaries fixed by the
Department of Mines and Geology since 25 years.
Therefore, there was no encroachment in the area of
M/s.NMDC.
80. Whereas in pursuance of the registration of
crime by CBI/ACB, Bangalore the charge sheet came to
be laid against the accused persons respectively of their
role relating to the offence under Sections 120-B r/w
379, 420, 427, 447 of IPC without there being any
basis. As this contention has been taken by learned
Senior counsels as well as respective counsel for other
accused. The allegation in para - 7 of the charge sheet
is that since year 1980, M/s.DMSPL (A-2) was doing
mining from the lease area of M/s.NMDC in two pits
i.e., Pit No.1 and 2 is denied as false. The complaint
given by M/s.NMDC to various authorities that
M/s.DMSPL (A-2) had indulged in illegal mining was
enquired and investigated by the Deputy Commissioner
of Bellary, Police and Forest Departments. But the said
allegation was found to be false and per contra, it was
confirmed that the mining operation undertaken by
M/s.DMSPL was within its area of lease that was
demarcated by the Department. Therefore, the
complaints lodged by M/s.NMDC were found to be
without any basis and hence, the complaints were
closed.
81. The notice was issued by the Director, Mines
and Geology that M/s.DMSPL has illegally entered into
mining lease area of M/s.NMDC and illegally extracted
iron ore, was again denied as false. Accused No.2
company had challenged the notice issued by filing
W.P.No.2564/1996 before the High Court of Karnataka
by asserting that it has undertaken mining operation
within the leased area and as per the boundary fixed at
the time of original lease granted in the year 1966. In
the said writ petition M/s.NMDC was also made as one
of the respondent. The said writ petition was disposed
of by order dated 14.02.2022 because by then the State
has granted renewal for another 10 years by recognizing
the worked area and regularized by receiving the lease
with this modified sketch.
82. Whereas accused Nos.4 to 6 were holding the
posts of Secretary-II, Principal Secretary of Industries
and Commerce and Deputy Director of Mines and
Geology during the relevant period. Accused No.7 was
the then Circle Inspector of Police, Sandur Circle,
Bellary District but since they being the Government
servants the provision under Sections 13(1)(d) r/w 13(2)
of P.C.Act, 1988 in addition to the offence under Indian
Penal Code were invoked. It is contended that it was
the act of Director of Mines and Geology and Secretary
to Department of Commerce and Industries in
redrawing the sketch including the worked area sating
that the worked area is included in the sketch. But the
actually worked area was the demarcated area in favour
of accused No.2 Company and in order to correct the
mistake on the part of the Survey officials, modified
sketch has been issued, this was the self act of the
officials. This is by imposing penalty of Rs.10,00,000/-
on accused No.2 Company. It was not the prayer of
accused No.2 Company to redraw the sketch and grant
renewal with modified sketch. Along with the
application for grant of renewal of lease filed for the year
1995, it had enclosed with the previous sketch which
discloses the area that was leased to it. In fact, accused
No.2 Company deposited the penalty amount of Rs.10
lakhs with protest and not agreed to the conditions put
by the officials of the Department. Therefore, there was
no act on the part of accused No.2 Company to suggest
that there was conspiracy in between it and with other
officials particularly accused Nos.4 and 5. Therefore,
the allegations of conspiracy is totally baseless.
83. Whereas learned Senior counsel contends that
if the fact that Accused No.2 - M/s.DMSPL had
undertaken the mining operation in the demarcated
area by the Department and not in the area of
M/s.NMDC because the leased area of accused No.2 is
not encircled by the leased area of M/s.NMDC and this
fact has been settled by the High Court in
W.P.No.10335/1998 and W.P.No.19766/2005 by order
dated 31.03.2008 and this fact is also clarified by the
Department of Mines and Geology and spot verification
that the worked area of accused No.2 was actually the
area demarcated by Survey Department though there
may be little difference in the sketch enclosed to the
lease. At the field the actual demarcation done by the
officials of Survey Department is the worked area and
this is only a mistake on the part of the officials and not
on the part of accused No.2 Company. If this is the
actual fact, question of indulging in illegal mining
operation in the area of M/s.NMDC under M.L.No.1111
does not arise.
84. It is pertinent to note that only after the death
of Mr.S.M.Jain in the year 2005, accused No.1 -
Mr.Rajendra Kumar Jain took over the position of
Managing Director in the year 2005. But prior to it, he
was not a shareholder or director of accused No.2
Company. Therefore, for the main period of allegation
made i.e. in the year 1995-1999 when the renewal of
Mining Lease granted by State Government with the
alleged modified sketch and thereafter mining operation
conducted till 2005 and the application for renewal of
Mining Lease in the year 2005 was applied by
Mr.S.M.Jain and during these crucial periods of
allegations made in the charge sheet, Accused No.1 was
not the Managing Director nor incharge of the business
affairs of the company. Therefore, for any criminal act
of the Company, the liability cannot be fastened on
accused No.1.
85. Now point to be considered whether the 2nd
accused has encroached upon the area of M/s.NMDC as
contended by M/s.NMDC. In respect of the said dispute
M/s.NMDC filed W.P.No.10335/1998 and 2nd accused
Company filed W.P.No.19766/2005. The learned single
Judge of this Court by the Order dated 31.3.2008
disposed the said writ petitions by common order.
The said order has been challenged by M/s.NMDC in Writ
Appeal No.1134/08 and 1135/08 and ultimately vide
order dated 12.8.2011, the said Appeals were dismissed
as withdrawn in view of the memo filed by the appellants
and as such the order passed in writ petitions became
final and in view of the said orders it is
evident that the area leased in ML No.1111 is not at all
encircled lease area of M/s.DMSPL i.e. accused No.2.
When such being the situation, the contentions of the
officials of M/s.NMDC that 2nd accused has encroached
upon the area of M/s.NMDC and carried out illegal mining
does not holds any water and it falls to the ground when
2nd accused has not at all encroached upon the area of
M/s.NMDC, the prosecution case against accused No.2
that it has illegally carried out mining operation beyond
their area does not hold any water.
Moreover, the sketch attached to the orders of
the High Court clearly goes to show the location of
the properties of accused No.2 as well as M/s.NMDC. On
perusal of said sketch, it is evident that the property
leased to NMDC in M.L.No.1111 does not encircle the
property leased to accused No.2 i.e. DMS and as such, the
trial Court was right in observing that prosecution case
that accused No.2 has encroached the area of NMDC and
continued illegal operation when the prosecution has
failed to prove case against accused No.2 and accused
No.1 being Managing Director of accused No.2 from 2005,
also has not committed any offences. On perusal of entire
prosecution case, nowhere it is alleged that accused No.1
in his individual capacity has committed alleged offence.
Moreover, accused No.1 has been shown as Managing
Director of accused No.2 and as such his role only
pertains to the period from 2005 and prior to that he was
not at all in any way connected with accused No.2 and as
such prosecution case against accused No.1 is not at all
maintainable.
86. Insofar as Accused No.3 - Mr.Ritesh
Milapchand Jain he joined the company in the year
2003-2004 as Manager and continued to be so till 2011.
Therefore, no criminal liability of Company can be
fastened on accused No.3 also. Even otherwise, as
stated supra no offence is committed by accused No.2
Company since it had actually undertaken mining
operation in the area which was leased to it and there
was no encroachment or illegal mining operation
undertaken in the area of M/s.NMDC and from the
beginning, the entire mining operation that was
undertaken by accused No.2 Company was in the actual
area demarcated by the Department. Therefore, the
offence of either trespass under Section 447, mischief
under Section 427, theft under Section 379 and
cheating under Section 420 of IPC are not attracted
which were lugged against the accused persons. Since
no illegal mining operation had been undertaken there
was no scope for conspiring with the other officials and
therefore, Section 120B of IPC also does not attract and
consequently, the offences under Sections 13(2) r/w
Section 13(1)(d) of the PC Act, 1988 also does not
attract. All these averments made are based on the
charge sheet material on the undisputed facts and
documents enclosed to the charge sheet and the
decision of High Court in W.P.No.10335/1998 c/w
W.P.No.19766/2005 had attained finality by dismissal
of appeal in W.A.No.1134/2008 c/w W.A.No.1135/2008
dated 12.08.2011. Therefore, it is contended that on
perusal of charge sheet material on its face value, if it is
assessed the definite conclusion can be reached that the
facts do not constitute the offences as alleged in the
charge sheet. Therefore, accused are entitled for
discharge.
87. Whereas in para 16 to 19 is pertaining to the
CEC survey and the order of Hon'ble Supreme Court of
India in which CBI registered the case and conducted
the investigation. CEC survey had clearly brought out
the encroachment and illegal mining done by the
accused company M/s.DMSPL and the said mining
lease was categorized as category-C and its mining lease
was cancelled and the survey report was accepted by
the Hon'ble Supreme Court of India which confirmed
that the illegal mining carried out by the accused
company. Further investigation conducted by CBI
reveals that the accused company had conducted illegal
mining from the areas of M/s.NMDC and iron ore to the
extent of Rs.1232 crores were mined and in the illegal
mining the petitioner Accused No.1 had directly
participated and also benefited. Further, in para 20 to
37 are relating to the boundaries of mining area of
M/s.NMDC and M/s.Deccan Mining Syndicate. It is
pertinent to mention here that M/s.NMDC has
surrendered 105 Acres only on the forest area and not
where the mining activities and encroachment done by
M/s.Deccan Mining Syndicate Pvt. Ltd. Further, during
the period of S.M.Jain also Rajendra Kumar Jain was
actively involved in the mining activities and the same
were through the ROC documents submitted along with
the charge sheet for the purpose of perusal.
88. Insofar as I.A.14 of the application filed under
Section 239 of Cr.P.C. in respect of accused No.3
seeking discharge, but the learned Senior counsel in
this matter contended that complainant/CBI has filed
the charge sheet against Accused Nos.1 to 7 for the
offence punishable under Section 120-B r/w Sections
379, 420, 427, 447 of IPC and under Sections13(2) r/w
13(1)(d) of P.C.Act, 1988. Whereas the allegations made
in the charge sheet laid by the investigating agency that
accused No.3 was working as CEO of accused No.2
Company while he was working so in the year 2007-
2008, there was dispatch of iron ore material on behalf
of M/s.DMSPL to an extent of 1,47,095 MTs of iron ore
to Goa Port and 11,070 MTs. iron ore material to
Belekeri Port totally to an extent of 1,59,250 MTs. of
iron ore. The allegation is, before obtaining dispatch
permits from the Department of Mines and Geology,
these iron ore materials were transported to Goa and
Belekeri ports. For this accused No.6 - S.P.Raju, Deputy
Director of Mines and Geology, Bellary also facilitated
them to transport these iron ore material before issue of
dispatch permits. Thereby accused No.6, accused No.2
Company and accused No.3 being the CEO have
conspired together to commit the offences. Therefore,
this allegation made in paragraph No.18 of the charge
sheet is denied as false.
89. Whereas the delay in issuance of permit does
not amount to conspiracy because it is settled law that
in order to attract the offence of conspiracy, two or more
persons agreed to do an act which is illegal by illegal
means or an act which is legal by illegal means. Since
no illegality is committed either by the company or by
accused No.3 and only because certain procedural delay
in issue of permits, which normally occurs in discharge
of official duties cannot be considered as a product of
conspiracy. Therefore, offence alleged under Section
120-B IPC is not attracted. Insofar as offences under
Sections 379, 420, 427 and 447 of IPC, the accused
No.3 is innocent of the same. There was no theft of iron
ore material and the entire iron ore material was
produced from the leasehold area of M/s.DMSPL and
since mining operation was done in the demarcated
mining area of M/s.DMSPL the offence of mischief
under Section 447 of IPC and offence of cheating under
Section 420 of IPC does not attract and absolutely there
is no material to frame charge against Accused No.3.
90. Insofar as I.A.7 which is filed under Section
239 of Cr.P.C. by accused No.4 seeking discharge.
Whereas the investigating agency/CBI laid the charge
sheet for the offence punishable under Section 120-B
r/w 379, 420, 427 and 447 of IPC and under Sections
13(2) r/w 13(1)(d) of P.C.Act, 1988. The Hon'ble
Supreme court vide order dated 23.9.2011 passed in
Spl.Leave Petition Nos.7366-7367/2010 directed the
CBI to conduct investigation in respect of illegal mining
in the area of M/s.NMDC under mining lease No.1111
by the 3rd party i.e., M/s.DMSPL. As per the direction of
the Apex court, the CBI registered FIR in Crime No.RC
19(A)/2011 on 01.10.2011 and proceeded for
investigation. During the course of investigation the
investigating agency issued notice to accused No.4 being
a public servant. Accordingly, accused No.4 appeared
and explained her position in the Government of
Karnataka, Department of Commerce and Industries as
Secretary-II, pertaining to the renewal of mining lease
No.2080, in favour of M/s.DMSPL on 29.1.1999.
Accordingly, the investigating agency recorded her
statement. After completion of formalities of
investigation, charge sheet has been laid for the
aforesaid offences relating to the role of accused No.4.
But no ingredients have been constituted relating to the
offences lugged against accused No.4 being public
servant. Whereas in the second renewal of mining lease
No.ML-2080 in favour of accused No.2, accused No.4
has put a clear note i.e., this second renewal is for an
altered area i.e., with the modified sketch including the
area where M/s.Deccan Mining Syndicate has done
mining operations outside the original boundary
keeping total extent unchanged at 47 acres only. But
as per the procedure and entrustment of duty in the
Department of Commerce and Industries, it should have
been processed only through accused No.4 who was
then working as 'Secretary-II to the Department of
Commerce and Industries, Government of Karnataka'.
Accused No.5 was then working as Principal Secretary
to Department of Commerce and Industries has also
taken part in taking decision for recommendation for
second renewal in favour of accused No.2. In the
meanwhile, on behalf of accused No.2 - M/s. Deccan
Mining Syndicate, a letter dated 23.6.1998 was
submitted to the Department of Commerce and
Industries requesting for grant of second installment of
first renewal under Section 8(2), that is to treat the
application for second renewal under Section 8(3) of the
Act as infructuous. The Government of India, by letter
dated 6.11.1998, has returned back the file to
Government of Karnataka for consideration of
application of accused No.2 under Section 8(2) of the
Act. The file was then put up before the Principal
Secretary, Department of Commerce and Industries,
Government of Karnataka, by the Deputy Secretary for
consideration of grant of second installment of first
renewal to accused No.2 and ultimately, the file was
sent to the Minister of Mines and Geology and the
Minister has sanctioned for grant of second installment
of first renewal in favour of accused No.2 subject to
collection of full penalty. It is definite that this addition
of the words 'modified sketch' while issuing Notification
is not done by this accused No.4. Therefore, accused
No.4 has not conspired with the other accused or any
other persons in according renewal of lease in favour of
accused No.2 with the 'modified sketch'.
91. Whereas learned Senior counsel relating to
role of accused No.4 submits though the investigating
officer has mentioned in the charge sheet that accused
No.4 being the public servant has retired from service
and to prosecute her, no sanction is required for taking
cognizance and conducting criminal proceeding against
her but this note of the investigating officer in the
charge sheet is not correct. Because, under Section 197
of Cr.P.C., it is mandatory that whenever a Court takes
cognizance of the offence against a public servant
accused of an offence and if the offence is committed in
discharge of official duty, even in respect of a past
public servant, sanction is necessary. Admittedly, in
this case, no sanction is obtained for prosecuting
accused No.4 as required under Section 197 of Cr.P.C.
Therefore, the alleged act of accused No.4 was in the
course of discharge of official duty and therefore, any
act committed in connection with discharge of official
duty, no prosecution can be launched without obtaining
sanction from appropriate authority and in respect of
accused No.4, she was working as Secretary to
Department of Commerce and Industries as an IAS
Officer, sanction from competent authority is must.
Though this point was not considered at the stage of
taking cognizance, it is settled law that point of sanction
can be raised at any stage of proceeding. Therefore, it is
urged at this stage, particularly the accused No.4 after
appearance getting this first stage to urge the same.
Hence, in the absence of sanction being taken, the
prosecution cannot be proceeded against accused No.4
she was rightly discharged by the trial Court by
considering the application filed by her.
92. The complainant/CBI through the Public
Prosecutor has filed objections denying the petition
averments as false. At paragraph 14 it is contended
that the acts committed by the accused person is so
grave that she has violated the MMDR Act and MC
Rules, 1960 and gone out of the way to issue a renewed
lease.
93. Insofar as accused No.5 who has filed
application under Section 227 of Cr.P.C. seeking
discharge has contended that accused No.5 has been
charge sheeted by complainant - CBI under Section
120-B of IPC and other Sections of Indian Penal Code
and so also, under the provisions of P.C.Act, 1988,
Indian Forest Act, 1927 and MMDR Act, 1957.
However, the only accusation made by the complainant
against Accused No.5 is that 'he fraudulently and
dishonestly facilitated the illegal mining by way of
illegally renewing the mining lease by changing the
original sketch.' The complainant has claimed that the
State Government had no power to renew a mining lease
based on a modified sketch; that when the mining lease
boundaries were already determined with the prior
approval of the Central Government as was done while
issuing first mining lease No.ML-636 which was later
renewed as ML 2080 with the same boundaries, any
further modifications of the mining lease being carried
out by the State Government is an illegal act, and there
is no provision under the Mines Minerals (Regulation
and Development) Act, 1957 to renew a mining lease
based on a modified sketch.
94. In exercise of the powers conferred by sub-
section (1) of Section 26 of the Mines Minerals
(Regulation and Development) Act, 1957 (67 of 1957,
the Central Government directed that the powers
exercisable by it under sub-section (2) of Section 7 and
sub-section (2) of Section of the Act, in respect of
minerals specified in part C of the First schedule to the
Act in an area in a State shall be exercisable also by the
Government of that State, with immediate effect and
until further orders. This contention was also made by
learned counsel for accused No.5. It is further
contended that Section 7 of the MMDR Act deals with
prospecting licences, it is Section 8 that deals with the
grant or renewal of Mining leases and sub-section (2) of
Section 8 reads as under:
" A mining lease may be renewed for a period not
exceeding twenty years."
In pursuance of sub-section 2 of Section 8 of the
MM (R&D) Act, 1957 and as per letter No.7(2)/98-M.IV
dated 5.8.1998 of Government of India, Ministry of
Mines, New Delhi, read with Notification No.16/56/96-
M.VI dated 30.1.1997, the Government of Karnataka
hereby accord sanction for the second instalment of 1st
renewal of mining lease No.2080..."
95. Whereas learned counsel in respect of accused
No.5 has taken contention and that the case has been
registered against this accused even though there is no
specific role played by him. This ground has been urged
seeking discharge. Accused No.5 being an Officer of
the State Government had every responsibility to
discharge his duties strictly in accordance with law
pertaining to every matter that is brought to his notice.
But complainant/CBI contends that it is pertinent to
mention that this accused was not only charge sheeted
for illegally renewing the mining sketch but also for
criminal conspiracy with other accused persons and the
acts of accused has led to continuation of illegal mining
which caused huge revenue loss to the Government
Exchequer and corresponding wrongful gain to the
accused persons.
96. Insofar as I.A.No.24 relating to Accused No.6
whereby it is contended that the case came to be
registered on 01.10.2011 in Crime No.RC/19(A)2011 for
the offence punishable under Sections 120-B, 379, 411,
420, 427, 477, 468, 471 of IPC and under Sections
13(2) r/w 13(1)(d) of the P.C.Act, 1988 and Section 26 of
Karnataka Forest Act, 1927 and under Section 21 r/w
4(1), 4(1)(A) and 23 of the Mines and Minerals
(Development and Regulation) Act, 1957 against the
Directors of M/s.Deccan Mining Syndicate, and other
persons including the present accused. The charge
sheet in this case was filed on 02.08.2013 under
Sections 120-B, 379, 420, 427, 447 of IPC and under
Sections 13(2) r/w 13(1)(d) of the P.C.Act, 1988.
97. Whereas learned counsel relating to accused
No.6 contends that the prosecution has failed to obtain
an order of sanction from the appropriate authority in
respect of the offences under the IPC that has been filed
against this accused who was a public servant. The
Trial Court observed that this ground alone is sufficient
to allow discharge application regardless of the merits of
the case of the prosecution. The allegation against this
accused is found only in para-18 of the charge sheet
which states that S.P.Raju (A-6), posted as Deputy
Director, Department of Mines and Geology, Bellary.
During the period 2007-08, he conspired with other
accused in the matter of transportation of iron ore to
Goa and Belekeri port and in pursuance of the said
conspiracy, M/s.DMSPL (A-2) had transported 1,47,095
MTs of iron ore to Goa and 11,070 MTs to Belekeri
respectively without obtaining any transport permits
from the Department of Mines and Geology, Hospet.
That S.P.Raju (A-6) had issued permits for
transportation of 1,59,250 MTs. Iron ore to Goa and
Belekeri on 7.9.2007 without causing any verification
with regards to the availability of iron ore stocks at the
mines. Further, it is contended that this accused is
innocent of the alleged offences against him and only for
discharge of his official duty as per the rules governing
his Department he has been arraigned as an accused
herein without basis or any credible evidence or
witnesses incriminating him. Between the relevant
years, as per the prosecution 2009-2011, there have
been 3 Deputy Directors in the State Mines and Geology
Department. However, the present accused has been
singled out without any specific allegations against this
accused. This accused served in the relevant period in
the said post between 20.07.2009 and 29.10.2009 and
thereafter between 18.01.2010 and 14.03.2011. In the
backdrop of law laid down by the Hon'ble Supreme
Court in various cases the Court was duly empowered
to consider and weigh the evidence at this stage itself to
find if prima facie case is made out or not. Thus, the
prosecution has not brought out any material to make
out a prima facie against accused No.6 and as such this
is eminently a fit case to discharge the accused from the
alleged offences.
98. Insofar as I.A.25 filed under Section 227 of
Cr.P.C. relating to accused No.7 seeking discharge, it is
contended that an independent body by name Samaja
Parivartana Samsthe approached the Hon'ble Supreme
Court alleging rampant and illegal mining being carried
out in the District of Bellary which had caused huge
monetary loss to the Central and State exchequer and
sought for a direction to stop all mining activities in the
District and for a probe by the CBI. In pursuance of the
directions issued by Hon'ble Supreme Court, the CBI
anti corruption branch registered an FIR in RC
No.19(A)/2011 for the offences punishable under
Sections 120-B r/w 379, 420, 427 and 447 of IPC and
Sections 13(2) r/w 13(1)(d) of P.C.Act, 1988 and under
Sections 21 r/w 4(1), 4(1) (A) and 23 of the Mines and
Minerals (Development and Regulation) Act, 1963 and
under Section 24 of the Karnataka Forest Act, 1963.
Subsequent to registration of crime, the investigating
agency conducted the investigation and this petitioner is
arraigned as accused No.7 in the said FIR. The charge
against this accused is that he being the Station House
Officer of Sandur Police Station did not act upon the
complaints made by M/s.NMDC and failed to prevent
illegal transportation of iron ore. It is contended that it
is the duty of the Sub-inspector of any police station to
register any complaint made by the public and at best
the role of the accused for any inspector for that matter
is to supervise the duties of his subordinate. But it is
not the case of the prosecution that when the sub
inspector of Sandur Police Station did not register the
complaint the same was brought to the notice of the
accused and inspite of it has not acted. Further, it is
contended that the allegations does not satisfy the basic
ingredients required to impute sections and accordingly,
it was prayed to discharge accused No.7.
99. Whereas in the nutshell relating to the charge
sheet against accused as well as the role of accused
Nos.4 to 7 it is vehemently contended that prosecution
has not obtained sanction under Section 197 of Cr.P.C.
in order to prosecute accused Nos.4 to 6. But accused
Nos.4 to 6 were holding posts of Secretary-II, Principal
Secretary of Industries and Commerce and Deputy
Director of Mines and Geology during the relevant
period. But accused No.7 namely Sri Y.Ramakant
Hullur, the then Circle Inspector of Police, Sandur
Circle, Bellary District, has been issued sanction by the
competent authority under Section 19(1)(c) of the
P.C.Act, 1988 is enclosed and the sanction order under
Section 170 of Karnataka Police Act, 1963 and under
Section 197 of Cr.P.C. was sought from the competent
authority. But the sanction for prosecution was not
required for the accused public servants Smt.Shameem
Bhanu (A-4), Sri N.Viswanathan (A-5) and Sri S.P.Raju
(A-6) since they have all retired from service. The
prosecution has produced documents to show that
sanction has been accorded to prosecute accused No.7
under Section 19(1)(c) of P.C.Act, 1988 and also for the
offences punishable under Sections 120-B, 379, 420,
427 and 447 of IPC and Sections 13(2) r/w 13(1)(d) of
P.C.Act, 1988, but the prosecution has not at all
produced any material to show that sanction as
required under Section 197 of Cr.P.C. has been
obtained in respect of accused Nos.4 to 6. In this
regard, it is relevant to refer Section 197 Cr.P.C. which
reads as under:
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with
the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court
shall take cognizance of such offence except with the previous
sanction-
(a) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the State
Government.
100. Thus, on perusal of the said provision, it is
evident that sanction as required under Section 197 of
Cr.P.C. is mandatory in order to prosecute the case
against accused Nos.4 to 6 being public servant. It is
held by the prosecution that accused Nos.4 to 6 have
dishonestly acted in order to help accused No.2 to
obtain the lease of the area of the modified sketch and
accused No.6 has facilitated accused No.3 to transport
the iron ore without valid permits.
101. Learned counsel for accused Nos.4 to 6 have
vehemently contended that the act of accused Nos.4 to
6 was in discharge of their official duties and nothing
could be attributed against them with respect to
discharge of their official duties. Even on perusal of
prosecution papers, it is not in dispute that originally
50 acres of mining was leased in favour of Motilal J Boal
during 1966 and subsequently, he transferred the said
lease in favour of M/s.Deccan Mining Syndicate in the
year 1980 and the said transfer was approved by
Government of Karnataka and in the year 1985 the said
Company became a firm by name Deccan Mining Pvt.
Ltd. Further, it is not in dispute that the said M.J.Boal
transferred the leased area i.e. 50 acres of land in
favour of M/s.Deccan Mining Syndicate Pvt. Ltd. It was
father of accused No.1 Mr.Sumermal Manmal Jain, who
was the Managing Director at that time and even after
M/s.DMSPL came into existence in 1991, he continued
to be the Managing Director of the said firm till his
death in 2005 and only from 1.5.2005 accused No.1
became the Managing Director of M/s.DMSPL i.e.,
Accused No.2. As far as renewal of licence of accused
No.2 is concerned, it was during 1997-98 and the
prosecution papers as well as statements of witnesses
relied upon by the prosecution clearly goes to show on
the notes prepared by accused Nos.4 and 5 and their
subordinate officials and the spot inspection report of
accused No.4 along with revenue officials, officials of
Mines and Geology, whereby Accused No.5
recommended for renewal of lease of accused No.2 in
respect of worked area, as by that time M/s.NMDC was
disputing lease area of accused No.2 with the allegation
that M/s.DMSPL - accused No.2.
102. Further, it is relevant to refer that it is not at
all the case of accused No.2 that it had deviated from
the area which was leased to it and company of accused
No.2 i.e., Deccan Mining conducted mining operation
only in the area allotted to it as originally 50 acres was
allotted since 3 acres was in the Forest area they have
restricted their mining area to 47 acres. The spot
inspection was conducted by survey officials,
Department of Mines and Geology and accused No.4
and then they thought fit to recommend for renewal of
lease to accused No.2 in the worked area i.e. mining
operation undertaken by them since there was a slight
variation in the original sketch attached to the lease
deed of accused No.2 and the worked area. But LW-4
and other officials have suggested to impose penalty of
Rs.10,00,000/- on accused No.2 and the said proposal
was approved by the then Director of Mines and Geology
and ultimately lease was renewed in favour of accused
No.2 on 29.1.1999.
103. A perusal of the material on record secured
by the investigating agency/ CBI the point that arises
for consideration is whether accused No.2 has
encroached upon the area of M/s.NMDC as contended
by officials of M/s.NMDC. It is pertinent to note here
that the said dispute had been agitated before the High
Court of Karnataka in W.P.No.10335/1998 which was
filed by M/s.NMDC against State of Karnataka, Director
of Mines and Geology, Additional Surveyor General of
India, Deccan Mining Syndicate Pvt. Ltd. and
W.P.No.19766/2005 was preferred by accused No.1 and
2 against State of Karnataka, Under Secretary to
Government (Mines) Commerce and Industries
Department, Director, Department of Mines and
Geology, Principal Chief Conservator of Forests,
National Mineral Development Corporation Ltd. The
High Court of Karnataka vide order dated 31.3.2008
disposed of the said writ petitions by a common order.
104. The said order was challenged by M/s.NMDC
in Writ Appeal No.1134/2008 and 1135/2008 and
ultimately vide order dated 12.8.2011, the appeals were
dismissed as withdrawn in view of the memo filed by the
appellants and as such the order passed in the writ
petitions attained finality. In view of the said orders it is
evident that the area leased in ML No.1111 is not at all
encircled lease area of M/s.DMSPL i.e., accused No.2.
When such being the case, the contentions of the
officials of M/s.NMDC that accused No.2 has
encroached upon the area of M/s.NMDC and carried
out illegal mining does not hold any water and it falls to
the ground when accused No.2 has not at all
encroached upon the area of M/s.NMDC, the
prosecution case against Accused No.2 that it has
illegally carried out mining operation beyond their area
does not hold any water.
105. It is also rightly observed, that moreover the
sketch attached to the orders of the High court clearly
goes to show the location of the properties of accused
No.2 as well as M/s.NMDC. The property leased to
NMDC in ML No.1111 does not encircle the property
leased to accused No.2 i.e., DMS and as such the
prosecution has failed to prove the case against accused
No.2 and accused No.1 being Managing Director of
accused No.2 from 2005, also has not committed any
offences.
106. In this regard it is relevant to refer the
decision reported in 1966 SCC (1) 478 i.e.
R.Balakrishna Pillai Vs. State of Kerala and another, the
Hon'ble Supreme Court held:-
"We may mention that the Law Commission
in its 41st Report in paragraph 15.123 while
dealing with Section 197, as it then stood,
observed "it appears to us that protection under
the section is needed as much after retirement
of the public servant as before retirement. The
protection afforded by the section would be
rendered illusory if it were open to a private
person harbouring a grievance to wait until the
public servant ceased to hold his official
position, and then to lodge a complaint. The
ultimate justification for the protection conferred
by Section 197 is the public interest in seeing
that official acts do not lead to needless or
vexatious prosecutions. It should be left to the
Government to determine from that point of
view the question of the expediency of
prosecuting any public servant."
Further, at the last para of the said judgment, the
Hon'ble Supreme Court held:-
"For the above reasons, we are unable to
accept the view taken by the High Court of
Kerala insofar as the requirement of sanction
under Section 197(1) of the Code is
concerned, in relation to the charge of
criminal conspiracy. We, therefore, allow this
appeal, set aside the decision of the High
Court insofar as that charge is concerned, and
hold that sanction under Section 197(1) of the
Code was a sine qua non."
107. These are all the observations made by the trial
Court while considering the applications seeking
discharge filed by the accused persons insofar as the
offences lugged against them and so also, the grounds
urged seeking discharge.
108. Based upon the material collected by the
investigating officer during the course of investigation and
so also, the contentions as taken by learned Senior
counsel Sri Hashmath Pasha for accused Nos.1 to 3,
learned Senior counsel Sri Uday Holla for accused No.4
and so also, learned counsel for accused Nos.5, 6 and 7,
but there is no dispute with regard to the propositions laid
down in the said decisions, since prosecution has failed to
prove from the statements of witnesses under Section 161
Cr.P.C. as well as documents relied by it that Accused
No.2 - Company has encroached area of NMDC and
thereby it has illegally carried out mining operation and
exported iron ore from the area that does not belongs to
them, does not holds any water as the area leased to
M/s.DMSPL - accused No.2 is not at all encircling in any
direction to the area of M/s.NMDC and as such, the trial
Court rightly considered the grounds which were urged by
accused Nos.1 to 7 respectively seeking discharge of the
offences alleged against them and the trial Court rightly
allowed I.A.Nos.7, 13, 14, 24 and 25 and application dated
6.2.2015 and discharged accused Nos.1 to 7.
109. It is in the nutshell of the submission made by
learned Senior counsel for accused Nos.1 to 4 and also
learned counsel for accused Nos.5, 6 and 7 in Spl.CC.
No.165/2013 arising out R.C.No.19(A)/2011, initiated by
the complainant - CBI/ACB, Bangalore against Accused
No.1 - Rajendra Kumar Jain, Accused No.2 - M/s.Deccan
Mining Syndicate Pvt. Ltd represented by its Managing
Director, Rajendra Kumar Jain, Accused No.3 - Ritesh
Milapchand Jain filed applications I.A.No.13 and
I.A.No.14 respectively, under Section 239 of Cr.P.C.
relating to the offence punishable under Sections 120-B
r/w 379, 420, 427 and 447 of IPC and under Sections
13(1)(d) of the P.C.Act, 1988. Whereas learned Senior
counsel Sri Hasmath Pasha has taken through the
materials collected by the investigating agency during the
course of investigation and role of accused Nos.1 to 3
and similarly, learned Senior counsel Sri Uday Holla for
Accused No.4 and learned counsel for Accused Nos.5 to 7
being public servants.
110. With regard to the contention taken by the
learned counsel respectively it is relevant to refer the
offence under Section 120-B of IPC. It is the settled
position of law in order to attract the offence of
conspiracy, two or more persons agreed to do an act
which is illegal by illegal means or an act which is legal
by illegal means. Since no illegality is committed either
by the Company or by accused No.3 and only because
certain procedural delay in issue of permits, which
normally occurs in discharge of official duties cannot be
considered as a product of conspiracy. Therefore, offence
alleged under Section 120-B of IPC is not attracted. Even
with regard to offences under Sections 379, 420, 427 and
447 of IPC, accused No.3 is totally innocent of the alleged
offence. But there was no theft of iron ore material and
the entire iron ore material was produced from the
leasehold area of M/s.DMSPL and since mining operation
was done in the demarcated mining area of M/s.DMPSL
offence of trespass under Section 447 of IPC and offence
of mischief under Section 427 of IPC and offence of
cheating under Section 420 of IPC does not attract.
Therefore, there is no material to frame charge against
accused No.3. It is also relevant to notice that accused
No.2 company has not at all committed any offence and it
is also entitled for discharge and if the company has not
involved in the commission of any offence, accused No.3
is no way liable for any offence in any manner and hence,
at this stage itself entitled for discharge from the
proceedings. Further, insofar as, accused No.3 is
concerned, he joined the service only in 2003-2004 and
he joined company of Accused No.2 as Manager,
subsequently, he was promoted as General Manager and
he served in that capacity till 2011. In order to attribute
case against accused No.3, being representative of
Accused No.2, prosecution must show that accused No.3
was in actual business and in control of accused No.2
Company as according to Section 23 of the MMDR Act.
Therefore, in view of the above said provision, accused
No.3 being the General Manager of accused No.2
Company from 2004-2011 does not in any way comes
within the purview of person continued business of
Accused No.2 and as such the trial Court has rightly held
that the prosecution case as alleged against accused No.3
is not at all sustainable.
110.Insofar as accused Nos.4 and 5 is concerned,
they served as Secretary-II and Principal Secretary to
Department of Commerce and Industry during 1997-98
i.e., when the renewal of the lease of accused No.2 was
processed. If the case of the prosecution is accepted, as
it is the act of accused Nos.4 and 5 might be in error of
judgment and for the said purpose Section 120-B cannot
be attributed to them. The trial Court has observed that
the charge sheet filed against the accused persons is not
maintainable in view of non-filing of complaint by the
authorized person of the Central Government or State
Government as the case may be.
111. It is in the given peculiar facts and
circumstances of the case and so also, registration of the
casein RC No.19(A)/2011 by CBI/ACB, Bangalore and
whereby laying of charge sheet against the accused in
Spl.C.C.No.165/2013 are concerned it is relevant to refer
the order passed by the learned Single Judge of this Court
in W.P.No.10335/1998 c/w W.P.No.19766/2005 (GM-
MM/S) dated 31.03.2008. It is pertinent to note here that
the said dispute had been agitated before the High Court
of Karnataka in W.P.No.10335/1998 which was filed by
M/s.NMDC against State of Karnataka, Director of Mines
and Geology, Additional Surveyor General of India, Deccan
Mining Syndicate Pvt. Ltd. and W.P.No.19766/2005
preferred by accused No.2 and 1 against State of
Karnataka, Under Secretary to Government (Mines)
Commerce and Industries Department, Director,
Department of Mines and Geology, Principal Chief
Conservator of Forests, National Mineral Development
Corporation Ltd. The High Court of Karnataka vide order
dated 31.3.2008 disposed of the said writ petitions by
common order.
112. It is relevant to state that M/s. National
Mineral Development Corporation Ltd., the petitioner in
W.P.No.10335/1998 though initially had questioned the
notification dated 29.1.1999 renewing the mining lease
No.2080 in favour of M/s.Deccan Mining Syndicate Pvt.
Ltd., has thereafter questioned the subsequent
notification dated 13.6.2006 in renewing the mining lease
in favour of DMS for 20 years from 20.5.2006. The
grievance of NMDC was that the renewal made by shifting
the original mining area would encroach on the area
leased to NMDC under mining lease No.1111 dated
18.10.1972 which according to NMDC encircles the land
leased to M.J.Boal in M.L.No.636 and thereafter
transferred to DMS. According to them, though DMS are
entitled to only 47 acres as per the initial lease and even
though the subsequent renewal is to the extent of 47
acres, the renewal made by shifting the area from its
original location is not sustainable. However, while
challenging the same, they contend that the renewal itself
is contrary to Section 8(3) of the Mines and Minerals
(Development & Regulation) Act read with Rule 24 of the
said Rules.
113. M/s. DMS-the petitioner in W.P.No.19766/05
had prayed for issue of writ of certiorari to quash the
notification bearing No.CI 35 MML 2005 dated 4.4.2005.
By the said notification, the Government has accorded the
sanction for renewal of mining lease No.1111 for a period
of 20 years as per the sketch furnished with effect from
18.10.2002 in favour of NMDC. The grievance of DMS is
that if the said renewal is sustained as per the sketch, not
only the existing 47 acres would be treated as encircled,
but the area of 188 acres which is a free area and to
which DMS is an applicant would get included contrary to
the fact situation and therefore not sustainable.
According to them, the area leased to NMDC does not in
fact encircle the area of 47 acres leased in favour of DMS.
The entire renewal in favour of NMDC was also questioned
on the ground that forest clearance has not been obtained
despite the area being forest and as such the same is
contrary to law.
114. In the above background, the factual matrix to
be noticed are that on 19-05-1966 the Government leased
50 acres of land in Kammatharu Village, Kumaraswamy
Range, Sandur Taluk, Bellary District in favour of M/s
M.J. Boal for extracting iron ore for a period of 20 years in
terms of the provision contained under the MM (D and R
Act). During the subsistence of the same, it was
transferred in the year 1980 in favour of DMS with the
concurrence of the Government. Out of the said 50 acres,
three acres of forest land was given up and the extent
retained was 47 acres. Though the initial period was 20
years and subsequent renewal was to be for 20 years, the
same was done in two installments, the second of which
was with effect from 20.5.1996. The said mining lease is
numbered as 2080 and 2080A. Thereafter the same is
renewed for a period of 20 years with effect from 20-5-
2006. This lease in favour of DMS was the one questioned
by NMDC. The other mining lease is in M.L.No.1111 in
favour of NMDC which was granted on 18.10.1972 for a
period of 30 years. The extent of land leased is 1600
acres mainly in Sandur State Forest which is in
Kumaraswamy and Subbarayanahalli Ranges. Though
the said land was leased in the year 1972, admittedly the
NMDC started mining operations only in the year 1991.
Though two different extents of 47 acres and 1600 acres
of land are leased to DMS and NMDC respectively, the
dispute really is that NMDC contends that the extent of 47
acres is encircled by the land leased to them while DMS
contends that the said 47 acres is one of the southern
boundaries for the area leased to NMDC and does not
encircle the same. DMS further contends that the extent
of 1600 acres of NMDC stops short of the area leased to
them and as such an extent of 188 acres of Government
revenue land which surrounds the said 47 acres leased to
them is available for grant of lease and as such DMS has
applied for the same. In this scenario, the grievance of
NMDC is also that DMS have mined outside the original
extent of 47 acres leased to them and while renewing the
lease, that mined extent is treated as the 47 acres of DMS
by shifting the same and as such according to NMDC
what is renewed is a portion of the land leased to them.
Therefore, renewal of lease in favour of DMS is questioned
on all grounds. On the other hand, DMS has questioned
the entire renewal in favour of NMDC since the claim of
NMDC that the lease granted earlier and renewal would
encircle the extent of 47 acres would effect their interest.
The consideration of the factual aspect of encircling or
otherwise would reduce the intensity of the challenge on
other aspects.
115. In this background, a perusal of the indenture
of lease dated 18.10.1972 i.e., M.L. No.1111 in favour of
NMDC indicates that the extent of land leased is 1600
acres and the boundaries indicated are North by: Sandur
State Forest, South by: M.L. area of M/s S.M. & I.O, M.K.
Narayanachar, Sri. M.J. Boal and P.L. executed by
V.S.Lad, on the East by M.L. area of M/s S.M & I.O and
M/s Srinivasa Ores and West by: M.L. area of M/s S.M &
I.O and Harishankar temple. The plan attached also
indicates the sanctioned area at 1600 acres to NMDC and
the surrounding areas which have been leased to different
lessees and the boundaries stated in respect of East, West
and North are similar to what has been stated in the lease
agreement but the Southern boundary has been
mentioned only as SM & IO, M. K.Narayanachar and V.S.
Lad.
116. But, in the instant case, the attached plan is
purportedly drawn for the area of 1600 acres and the
boundaries are shown and obviously while surveying, the
tri-junction point should have started from M/s. SM & IO
and Harishankar temple since the Southern boundary in
the agreement was indicated as SM & IO, M.K.
Narayanachar, V.S. Lad and M.L. of M/s M.J. Boal was
also shown as one of the boundaries and therefore the
extent of 1600 acres must have been marked within that
area. But, despite showing the said boundaries in the
map and the extent leased being 1600 acres, admittedly,
even as per NMDC even though they claim beyond the
area of DMS, the area enclosed therein was 1705 acres
which itself indicates that the map cannot be relied on as
being accurate. Even though NMDC have thereafter relied
on the revised map after excluding 105 acres on the
western side, the same is made on 8.7.1992 in respect of
a lease of 18.10.1972 and by such time already a decade
had passed after DMS had made its application on
2.12.1981 seeking for lease of the land surrounding its 47
acres.
117. In this regard, the main aspect which is to be
noticed at the outset is that as per the admitted case of
NMDC itself, it is not the surrender of any portion of the
leased area of 1600 acres, but it is the excess land over
the area of 1600 acres. Therefore, the sketch indicating
the boundaries to an area which was more than the extent
leased was not only defective, but if that area which was
found to be excessive was to be reduced, the choice of
either the location or the extent could not have been at
the option of NMDC. Though Rule 29 of the MC Rules
provides the manner of surrender to be made and even
though the option of the area to be surrendered is
available to lesseee for the reasons stated therein that is a
situation wherein the leased area is surrendered and even
in such event the state Government should permit such
surrender. In the instant case, when the Senior Geologist
noticed excess land, the proper procedure to bring the
sketch in conformity with the lease should have been
followed by making appropriate orders, instead NMDC has
written letters surrendering the area at its convenience
but the further procedure has not been effected by the
State Government. But the Additional Director (Mines) by
letter dated 8.7.1992 has accepted the change and
enclosed plan by stating it as per Rule 27(1)(g) of MC
Rules which provides for the demarcation in the plan
annexed to the lease. The said plan dated 8.7.1992 would
indicate deletion of a portion to detach the area from M.L.
area of SM & IO and Hari Shankar temple on the western
portion and in the key to the boundaries written in the
map and to describe the eastern boundary an insertion is
made which is not even legible. But the resultant effect of
such alteration of the sketch alone would be that even
though the said alteration is made in the sketch, the
boundaries indicated in indenture of lease continued to be
the same and as such the western boundary has
remained unaltered as M.L. area of SM & IO and Hari
Shankar Temple when it would not be so if a portion is
surrendered as claimed. That being the position, the said
change could have been done only by the State
Government by making the said change in the same
manner and procedure adapted while granting the lease
and at least at the stage of renewal, the procedure was
required to be followed.
118. Apart from the above facts, one other surrounding
circumstance of the matter which also requires to be
noticed is that DMS applied for mining lease in additional
area by application dated 28.1.1981 seeking for the extent
of 265 acres i.e., the land in the vicinity of its existing 47
acres. That area in fact is the presently disputed area
since according to NMDC that area also is a part of their
M.L.No.1111 encircling the 47 acres of DMS. The rejection
of the application by the Government by communication
dated 2.12.1981 is however on the ground that the extent
available is 240 acres and not 265 acres as sought and
also that the same is reserved area. Though the learned
counsel for NMDC sought to contend that stating it is
reserved could also mean for NMDC, the same cannot be
countenanced as it would amount to putting words into
the mouth of Government when it is not their stand.
When this was the position, the Indian Bureau of Mines
also did not recommend a portion of it as not being fit for
mining due to its terrain and as such excluding the same,
the area available was said to be 188 acres and as such
DMS once again by their application dated 16.10.1984
applied for the said extent of 188 acres and revision
application dated 6.12.1985. The same was rejected by
the Government on 26/30.06.1986 on the ground that the
area falls within the reserved zone for state exploitation.
The learned Senior counsel for DMS in this regard refers
to the communication dated 30.12.1985 addressed by the
Senior Geologist to the Director of Mines during the
process, wherein there is mention of the M.L.No.1111
being of 1600 acres but sketch is encompassing an area of
1788 acres (1600+188) and that 188 acres is to be
deleted. However, since the application was rejected, DMS
filed revision application which was allowed by order
dated 30.1.1989 and was remanded to the State
Government for passing fresh order on merits. The State
Government however rejected the matter on
26.2.1990/2.3.1990 which was communicated by
communication dated 22.3.1990 and the reason assigned
at that juncture is that the area overlaps with
M.L.No.1111. Against the same, DMS filed revision
petition which has been allowed on 5.2.1996 and the
matter is remanded to the State Government which is
pending consideration and the power to do so vests with
the State Government. That is one facet of the matter but,
the question with regard to overlapping or encircling did
not arise only in the context of DMS seeking for 188 acres
or due to the renewal of M.L. No. 1111, but it arose in the
background of renewal of lease for 47 acres itself in
M.L.No.2080 initially and thereafter in M.L.No.2080A and
the present renewal. Since this issue is to be resolved,
this Court by order dated 15.2.2002 passed in this
petition ordered the appointment of a Surveyor to
measure the lands and submit the report. The
Commissioner appointed is none other than the Joint
Director of Land Records, Department of Survey and
Settlement. By the said order, this Court directed the
Commissioner to survey the lands situated in Block Nos.
1, 2, 3 and 4 as per the sketch submitted in the Court.
The said sketch was signed by the respective learned
counsel. Parties were permitted to be present and
produce documents. The Commissioner was permitted to
measure the lands with reference to the village map and
other official records relating to location of the land. As
per the four blocks mentioned, Block-1 is the main area
leased to NMDC, Block-2 is the area of 47 acres leased to
DMS, Block-3 is the contentious area between NMDC and
DMS and Block-4 is the area claimed to have been
surrendered by NMDC. The Commissioner has submitted
a spot inspection report and mahazar along with a sketch
indicating measurements.
119. Therefore, the lease granted in favour of M.J.
Boal and thereafter transferred to DMS in M.L.No.636 and
renewed in M.L.No.2080, 2080A and the present renewal
cannot encircle the lease in favour of NMDC in
M.L.No.1111 and as such indicating M.L. of M.J. Boal as
one of the southern boundaries in the indenture of lease
was appropriate. However, in view of this finding, the
resurvey taking point-A as the starting point at the
western end (Hari Shankar Temple) and measuring 1600
acres and redrawing the sketch for the renewed lease of
NMDC is to be re-done by the Government in terms of
Rule 33 of the MC Rules to determine the extent to which
the area of 1600 acres would extend, starting from point
'A' in the western corner and to fix the boundaries
accurately. The application of DMS for the additional 188
acres would in that context be worthy of receiving
independent consideration thereafter for the land available
after such demarcation. Therefore, on all surrounding
areas of M/s.Deccan Mining syndicate Pvt. Ltd., there is
no such area of M/s.National Mineral Development
Corporation.
120. The learned single Judge of this Court in
W.P.No.10335/1998 c/w W.P.No.19766/2005 dated
31.3.2008 has analytically addressed the clinching issues
and considered in detail the disputes emerged in between
the parties. The relevant portion of the order reads as
under:
"For all the above said reasons, since the
conclusion is that the lease of NMDC in M.L.No.1111
cannot encircle the lease of DMS in M.L.No.636, 2080,
2080A and the present renewal, the prayer sought in W.
P. No.10335/98 to quash the notification dated 13.6.2006
cannot be granted nor can the subsequent lease deed
dated 15.7.2006 be declared as illegal. Similarly, the
notification dated 04.04.2005 impugned in
W.P.No.19766/05 need not be quashed in its entirety.
However, it is to be clarified that sanction accorded for the
first renewal in favour of NMDC for Iron ore over 647.50
hectares (1600 acres) is upheld, but not as per the sketch
appended thereto. The sketch shall however be redrawn
after measuring the extent of 1600 acres starting from the
point 'A' at the end point of ML of M/s. SM & IO near Hari
Shankar Temple."
The final order of High Court in the above said writ
petitions is hereunder:
i) W.P.No.10335/1998 and W.P.No.19766/05 are
disposed of in the above terms with the
following directions.
ii) The respondent-State Government is directed to
secure the survey done in terms of Rule 33 of
the MC Rules keeping in view the above
observations and redraw the sketch to
accompany the renewal of ML No.1111 and
shall thereafter treat the same as the sketch
pursuant to notification dated 04.04.2005 and
may also issue corrigendum if need be.
iii) The renewed lease deed in favour of NMDC
shall be executed enclosing the sketch to be
prepared in the manner stated above and
NMDC will be entitled to carryout mining
operations in such area subject to compliance of
other legal requirements.
iv) Parties to bear their own costs.
Further, it was observed that the parties have been
litigating on this aspect of the matter, it would be
appropriate that a joint survey be conducted by the State
Government though in terms of Rule 33 of the MC Rules
in the presence of representatives from NMDC and DMS.
Since the Court had appointed the Joint Director of Land
Records, Survey and Settlement as the Commissioner, it
would be appropriate for the Director of Land Records to
carry out the survey to be conducted. The correct point
on the north-east corner of M.L.No.1111 of NMDC with
the common boundaries of M/s.SM & IO shall be
identified and for this purpose the point identified in the
survey dated 28.11.1991 shall form the point since there
is no agreement on 'Q', 'Q1', and 'Q2' earlier marked by
the Joint Director of Land Records. With the said points
on the western and the north-eastern point being
identified, the survey shall be conducted to earmark the
area of 1600 acres and based on such survey, the sketch
to accompany the renewal of M.L.No.1111 vide notification
dated 4.4.2005 shall be prepared and the same shall form
the part of mining lease of NMDC. These are all the
clinching issues which were dealt in detail and considered
by the learned single Judge of this Court in the above
referred writ petitions in respect of the dispute that
emerged in between the parties.
121. Learned Senior counsel Sri Hasmath Pasha
while addressing his arguments referred to the maxim
Suppressio Veri or Suggestio Falsi which means
Suppression of truth or Suggestion of an untruth. This
maxim has emerged as a rule of equity, as well as a rule of
law. It means that when with respect to a material fact of
the case, either suppression of truth or suggestion of a
false statement is proven, then the injured party can seek
relief. Both of these are considered to be equally wrong.
This maxim is most often useful to rescind the contracts
entered between parties, in order to ensure that all
material facts are disclosed whilst making any agreement.
Therefore, an important facet of this maxim is observed
under the principle of good faith under general contracts
as well as under special legislations like insurance
contracts. It is also contended by learned Senior counsel
relating to dwelling in detail each role of accused as well
as the petition which is filed by CBI/ACT seeking
intervention of the impugned order passed by the trial
Court in Spl.CC.No.165/2013 dated 30.01.2016.
Whereas the learned trial Judge has gone through entire
materials which were secured by the investigating officer
during the course of investigation and also dwelling in
detail about the list of witnesses and list of documents
and arrived at conclusion in the statement of witnesses by
the investigating agency - CBI/ACB relating to initiation of
criminal prosecution against the accused persons.
122. But, however, keeping in view the ambit and
scope of Sections 227/239 of Cr.P.C. it is always the
domain vested with the prosecution to proceed if the
circumstances are warranting. But in the instant case,
Accused Nos.1 to 7 have been discharged of the offences
by the trial Court by allowing the applications i.e.,
I.A.Nos.7, 13, 14, 24 and 25 and application dated
6.2.2015 filed by them under Sections 227/239 of Cr.P.C.
I.A.No.13 is filed by accused Nos.1 and 2 under Section
239 of Cr.P.C. I.A.No.14 is filed by accused No.3 under
Section 239 of Cr.P.C. I.A.No.7 is filed by accused No.4
under Section 239 of Cr.P.C. Accused No.5 has filed
application dated 6.2.2015 under Section 227 of Cr.P.C.
I.A.No.24 is filed by Accused No.6. I.A.No.25 is the
application under Section 227 of Cr.P.C. filed by accused
No.7. But however, Section 239 of Cr.P.C. deals with
under what circumstances the accused shall be
discharged. If upon considering the police report and the
document sent with it under Section 173 of Cr.P.C. and
making such examination if any of the accused as the
Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused,
and record his reasons for so doing. In the instant case,
the Court below has considered the applications filed by
the accused persons seeking discharge, after going
through the entire material, statements of witnesses, oral
and documentary evidence and came to the conclusion
that since the prosecution has failed to prove from the
statements of witnesses under Section 161 of Cr.P.C. as
well as documents relied by it that Accused No.2 -
Company has encroached area of NMDC and thereby it
has illegally carried out mining operation and exported
iron ore from the area does not belongs to them, does not
hold any water as the area leased to M/s.DMSPL -
Accused No.2 is not at all encircling in any direction to
the area of M/s.NMDC. The trial Court by making such
observations allowed the applications filed by accused
Nos.1 to 7 and discharged of the offences lugged against
them.
123. Further, it is relevant to refer Section 227 of
Cr.P.C. which reads as under:
227. Discharge. If, upon consideration
of the record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for so doing.
124. Section 239 of Cr.P.C. which postulates "when
accused shall be discharged - If, upon considering the
police report and the documents sent with it under
Section 173 and making such examination, if any, of the
accused as the Magistrate thinks necessary and after
giving the prosecution and the accused an opportunity of
being heard, the Magistrate considers the charge against
the accused to be groundless, he shall discharge the
accused, and record his reasons for so doing." In the
instant case, the Magisterial powers has been exercised
by the rank of the District and Sessions Judge in
Spl.CC.No.165/2013 as where accused Nos.1 to 7 have
filed applications under Sections 227/239 of Cr.P.C
seeking discharge.
125. In the instant case, it is necessary to examine
+the scope of such exercise made by the Special Judge
and even under Section 227 of Cr.P.C. part of Chapter 18
which applies to trial before the sessions court. But in
the instant case, the Special Judge is of the rank of
District and Sessions Judge. Discharge - If upon
consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is no sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so
doing. The language of Sections 239 and 227 are
different. The scope of power exercisable to grant
discharge under Section 227 is less compared to the
power of discharge conferred on the Magistrate under
Section 239. But in the instant case, the Magisterial
power is conferred to the Special Judge being rank of
District and Sessions Judge. It is for this reason Sessions
Judge is required to examine only the record of the case
and documents submitted therewith for ascertainment as
to whether a case is made out for framing charge or
discharge. But under Section 239, the requirement is
different. It envisages ' If upon consideration the police
report i.e., CBI report and the documents sent with it
under Section 173 and making such examination, if any,
of the accused as the Magistrate thinks necessary and
after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the
charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so
doing.' But in the instant case, the applications filed by
Accused Nos.1 to 7 were allowed by considering all oral
and material documents secured by the investigating
agency by laying the charge sheet as against the accused
as contemplated under Section 173(2) of Cr.P.C.
126. But while considering the case of discharge the
trial Judge has to exercise his judicial mind to the facts of
the case in order to determine whether the case for trial
has been made out by the prosecution. The sufficiency of
ground would take within its fold the nature of the
evidence recorded by the police or documents produced
before the court which ex-facie disclosed that there was
suspicious circumstance against the accused. Then the
trial Judge has to apply its mind to proceed with the case
in further to framing of charge and so also, facing of trial
by the accused. This Section 227 of Cr.P.C. is in Chapter
XVIII - Trial before a court of session. But the trial court
i.e., XLVI Addl.City Civil and Sessions Judge and Special
Judge for CBI Cases, Bangalore in Spl.C.C.No.165/2013
has considered the applications filed under Sections
227/239 of Cr.P.C by Accused Nos.1 to 7. But the trial
Judge is a rank of District and Sessions Judge but the
concept of Section 239 of Cr.P.C the charge sheet is laid
before the Magistrate but the trial Judge of the rank of
District and Sessions Judge as in a special cases having
Magisterial powers. Therefore, even to exercise the power
as contemplated under Section 239 of Cr.P.C seeking
discharge as the trial Court having Magisterial powers
also be discharging the accused as the trial Judge has to
apply its mind to the facts of the case in order to
determine whether a case for trial has been made out by
the prosecution. The materials which secured by the IO
during the course of investigation other than those
produced by the prosecution can also be looked into and
should be considered even at the time of framing of
charge to find out whether prima-facie case is made out
or not.
127. But in the instant case, the charge sheet is
laid by the investigating agency - CBI/ACB under Section
173(2) of Cr.P.C. Mere because of laying of charge sheet
against the accused by the investigating agency for the
offences which lugged in the charge sheet, but the
accused are having right of recourse to file an application
under Section 239/227 of Cr.P.C. seeking discharge if
there are no sufficient evidence or materials secured by
the IO to framing of a charge. If there are no strong
materials find place in the charge sheet case, then the
trial Judge has to apply its mind to consider the
application filed by the accused seeking discharge. But
in the instant case, Accused Nos.1 to 7 have filed
applications under Section 227/239 of Cr.P.C. seeking
discharge. Subsequent to filing of applications, the
Special Public Prosecutor has filed objections to the said
applications in detail by referring the statement of
witnesses and so also referring the material documents
secured by the IO and ultimately accepting the
arguments of learned counsel for Accused Nos.1 to 7
allowed the applications seeking discharge. Therefore, the
XLVI Additional City Civil and Sessions Judge and
Special Judge for CBI Case, Bangalore has rightly come
to the conclusion that there are no sufficient
materials/evidence against the accused persons to
proceed in further for framing of charge and
consequently, they were discharged from the case.
Therefore, in these petitions, there are no merits or
otherwise to say there is no substance to call for
interference of this Court and no warranting
circumstances has arised for intervention of the
impugned order passed by the trial court in
Spl.C.C.No.165/2013 dated 30.01.2016. In terms of the
aforesaid reasons and findings, I proceed to pass the
following:
ORDER
The Criminal Revision Petitions filed by the
Petitioner - CBI/ACB, Bengaluru under Sections 397
r/w 401 of Cr.P.C. are hereby rejected.
Consequently, the impugned order passed by the
XLVI Addl.City Civil and Sessions Judge and Special
Judge for CBI cases, Bangalore City in
Spl.C.C.No.165/2013 dated 30.01.2016 allowing
I.A.Nos.7, 13, 14, 24 and 25 and application dated
6.2.2015 and discharging accused Nos.1 to 7 is hereby
confirmed. Ordered accordingly.
Sd/-
JUDGE
KS/DKB
