Dismissed

Mr Raj Kumar Dhupar v. State of Karnataka

Karnataka HC12 Nov 2020CRL.P/3468/2017

Case brief

AI extract

What is this about?

In a criminal petition filed under Section 482 CrPC to quash corruption proceedings, the High Court of Karnataka observed that the Special Judge did not err in taking cognizance on the final report of SIT, and that a separate complaint under Section 22 MMDR Act was deemed complied with by its content matching the police report. The court held the petitioner, charged as a commission agent, was acti

What did the court decide?

The Criminal Petition praying to quash the proceedings was dismissed, and pending interlocutory applications were also dismissed.

Mr Raj Kumar Dhupar Vs State of Karnataka — Corruption | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY NOVEMBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

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CRIMINAL PETITION No.3468 OF 2017

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BETWEEN:

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Mr. Raj Kumar Dhupar, Aged about 46 years, s/o late AyodhayaNathDhupar, R/o No.303/304, Staya Nagar, Bhuvaneshwar 751 007, Orissa State.

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…Petitioner

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(By Sri.K.B.Monesh Kumar, Advocate for Smt.Vijetha R.Naik, Advocate)

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AND:

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State of Karnataka, Through Superintendent of Police, Special Investigation Team, Karnataka Lokayuktha Police, Reptd., by its Spl.Public Prosecutor, M.S.Building, Bengaluru 560 001.

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...Respondent

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(By Sri.Venkatesh S.Arbatti, Spl.PP and Sri.B.S.Prasad, Spl.PP)

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This Crl.P is filed under Section 482 of Cr.P.C praying to quash the entire proceedings in Spl.CC.No.53/2016 pending on

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the file of the XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act, Bengaluru City, against the petitioner for offences punishable under Sections 379, 409, 420 r/w 120(B) of IPC and Secs.21, 23 r/w 4(1) and 4(1-A) of MMDR Act, 1957 For violation of Rule 165 r/w 144 of the Karnataka Forest Rules.

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This Criminal Petition having been Heard And Reserved For Orders on 22.10.2020 and coming on for pronouncement of order, through video conference, this day, the court made the following:

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ORDER

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The petitioner is shown as Accused No.4 in Crime No.24/2014 (Special C.C.No.53/2016).

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The allegations against the petitioner are that the petitioner was working as a consultant in M/s. Yazdani International Private Limited during 2009-10. During this period, he was responsible for the transactions relating to iron ore on behalf of the Company, as per the terms of the agreement and also on the basis of other documents and statements of the witnesses.

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The contention of the petitioner is that, he is a

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commission agent. Even in the charge sheet, he is described as

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a commission agent of M/s. Yazdani International Pvt.Ltd. The FIR was directed to be registered only against the exporters and those persons involved in the transportation of iron ore. The petitioner was neither an exporter nor was he involved in the transportation of the alleged iron ore and therefore the prosecution of the petitioner on the alleged charges is patently illegal. Further he contends that the name of the petitioner did not figure in the initial FIR registered by the respondent – Lokayuktha Police. Even though 776 documents were seized during the course of investigation, none of the documents refer to the petitioner. Among the 118 witnesses examined by the prosecution, none of the witnesses have implicated the petitioner and disclosed his involvement in either the export or transportation of iron ore. As he was working as a commission agent at the relevant time, there is absolutely no material much less incriminating material to prosecute the petitioner for the alleged offences.

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4. Further referring to the three agreements produced

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by the prosecution which are at page. No.172 onwards the

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learned counsel for the petitioner would submit that even the said agreements were entered into by the petitioner as a commission agent. The term of the contract/agreement was for a period of three years from 01-11-2007. The agreement was terminated on 05-05-2010 and therefore there was absolutely no material whatsoever to show the involvement of the petitioner in the alleged transaction. Under the said circumstances, the prosecution of the petitioner being wholly illegal and without any basis, is liable to be quashed.

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Learned counsel for the petitioner has also taken serious exception to the cognizance taken by the learned Special Judge and would submit that there is nothing in the said order to indicate that the learned Special Judge has applied his mind to the facts of the case and that the said order does not even indicate the offences in respect of which the learned Special Judge has taken cognizance insofar as the petitioner is concerned and on that score also, the impugned proceedings are liable to be quashed.

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Meeting this argument, learned Special P.P. for the respondent would submit that the petitioner is sought to be prosecuted under Section 4(1A) of the Mines and Mineral (Development and Regulation) Act, 1957 (hereinafter for short referred to as “MMDR Act”) and the said provision covers all persons involved in the transactions. There is abundant material to show that the petitioner was actively involved in export and transportation of iron ore. The agreements referred by the learned counsel for the petitioner empower the petitioner to negotiate, facilitate contracts and to enable smooth export of cargo to the best of his ability and experience. These documents coupled with other invoices clearly show that the entire transaction was carried out by the petitioner. The E-mails sent by the petitioner even after the expiry of the term of the contract would indicate that the petitioner was actively involved in the transaction and under the said circumstances, learned Special Judge was justified in taking cognizance of the alleged offences committed by the petitioner and issue summons to him to face trial in the above offences.

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In so far as the order taking cognizance is concerned, learned Special Public Prosecutor would submit that even though the said order does not specify the provisions in respect of offence, cognizance has been taken, yet, a reading of the said order clearly indicates that the learned Special Judge has perused the final report and only thereafter has issued the summons to the petitioner. Further, he submitted that even if there is any such illegality in the matter of taking cognizance, the same has not caused any prejudice to the petitioner nor could it be treated as an illegality vitiating the entire proceedings as held in the case of Nupur Talwar Vs.Central Bureau of Investigation and another [AIR 2012 Supreme Court 1921] .

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In the light of the above contentions, the points that arise for consideration are;

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1. Whether the order of cognizance and summons issued by the learned Special Judge suffers from illegality vitiating the proceedings initiated against the petitioner?

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2. Whether the charge sheet materials prima facie discloses the commission of alleged offences by the petitioner?

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Point No.1:

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9. The impugned order reads as under:

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“Perused the final report. Cognizance is taken against accused no.1 to 14 and 16. Register the case against the accused no.1 to 14 and 16 and issue summons to accused nos.1 to 14 and 16 returnable by 21-03-2016.”

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As rightly submitted by the learned counsel appearing for the petitioner this order does not specify the offences in respect of which cognizance has been taken by the Special Court. It is also not forthcoming in the order as to whether cognizance has been taken in respect of the offences under IPC or under the provisions of MMDR Act or Forest Rules. Nonetheless, it is submitted at the Bar that the summons issued to the petitioner/accused contained the details of the offences for which the summons was issued. Records also indicate that on appearing before the learned Special Judge, the petitioner moved for bail based on the offences mentioned in the summons. Therefore, it is clear that right from the inception,

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the petitioner was aware of the offences for which summons was issued to him. It is in this background, the objection raised by the petitioner/accused questioning the correctness and legality of the order of cognizance and the consequent summoning order issued by the Special Court requires to be considered.

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What is taking cognizance is not defined in the Criminal Procedure Code. But, it is now well settled that any Magistrate who takes cognizance of an offence must apply his mind to the facts of the case for the purpose of proceedings in a particular way. In R.R.CHARI vs. STATE OF UTTAR PRADESH, AIR(38) 1951 SC 207 , the Hon’ble Supreme Court relying on the dicta on GOPAL MARWARI AND OTHERS vs. EMPEROR, AIR (30) 1943 Pat. 245 , has observed that, “ the word ‘cognizance’ was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings”. Section 209 of the Code also provides for taking cognizance of the offence by the Magistrate while committing the case to the Sessions Court for trial but, the cognizance taken by the Magistrate under Section

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209 is quite different from the cognizance taken by the Magistrate under Section 190(1)(a) of the Code or the cognizance taken by the Sessions Court before commencing the trial after committal. In the instant case, undisputedly, the learned Special Judge has proceeded to take cognizance of the alleged offences after the submission of the final report by SIT.

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The reading of the cognizance order passed by the learned Special Judge clearly indicate that on perusal of the charge sheet submitted by the SIT learned Special Judge has taken cognizance of the alleged offences purportedly under Section 190(1)(a) of the Code and has proceeded to issue summons to the petitioner/accused, as such, there cannot be any difficulty in holding that by considering the facts of the case as borne on the final report, the learned Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act.

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It is trite law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 of the Code, law does not require the

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Magistrate to pass elaborate order recording reasons for issuance of summons; though the order must reflect that he has considered the final report and satisfied himself that there is sufficient ground for proceeding against the accused named in the final report.

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In BHUSHAN KUMAR vs. STATE OF (NCT OF DELHI), (2012) 5 SCC 424, the Hon’ble Supreme Court has reiterated the requirement of application of mind in the process of taking cognizance and following the decision in CHIEF ENFORCEMENT OFFICER vs. VIDEOCON INTERNATIONAL LIMITED, (2008) 2 SCC 497, has held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs 12 and 13 of

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the decision in CHIEF ENFORCEMENT OFFICER, read as under:-

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“12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

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13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued."

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In the backdrop of the above principle, if the order of cognizance and the summons issued by the learned Magistrate in the instant case is analyzed, it is clear from the above order that on consideration of the final report submitted by SIT, the learned Special Judge has taken cognizance of the alleged offences and has issued summons to the petitioner. Therefore, there can be no difficulty in upholding the validity of the cognizance taken by the learned Special Judge and the summons issued to the petitioner insofar as the IPC and Forest offences are concerned.

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However, in respect of the offences under the provisions of MMDR Act are concerned, Section 22 of the Act creates a restriction on the courts in taking cognizance of the offences under the Act. The Section reads as under:

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“22. Cognizance of offences.― No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.”

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Learned counsel for the petitioner/accused has

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placed heavy reliance on the decision of the Hon’ble Apex Court in the case of STATE (NCT OF DELHI) vs. SANJAY, (2014) 9 SCC 772, in paragraph 70, wherein it is held as under:

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“ 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under the Penal Code.”

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(underlining supplied)

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What emerges from the above decision is that based

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on the final report filed under Section 173 of the Code, the Special Court cannot take cognizance of the offences under the provisions of the MMDR Act. Apparently, to get over this restriction, the respondent appears to have filed a complaint in terms of Section 22 of the MMDR Act. The learned Special Public Prosecutor for the respondent has made available the copy of the complaint filed by the authorized officer before the learned Special Judge which contain the very same allegations as found in the charge sheet submitted by SIT. The complaint therefore could be taken as due compliance of the statutory requirement prescribed in Section 22 of the MMDR Act. But the question still remains to be considered is, whether by mere filing the complaint, can it be said that the Special Court has taken cognizance of the offence based on the said complaint as mandated in Section 22 of the MMDR Act?

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Though it is vehemently argued by the learned

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counsel for the petitioner/accused that such exercise has not been done by the Special Court as the impugned order of

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cognizance does not reflect that the learned Special Judge has looked into the averments made in the complaint, yet, what is significant to be noted is that the allegations made in the complaint as well as the facts constituting the offences alleged against the petitioner/accused in the final report filed by the SIT are one and the same. Under the said circumstance, if the learned Special judge has looked into the allegations made in the final report filed by the SIT and on satisfying himself that these allegations prima facie disclose the commission of offences by the petitioner/accused under IPC as well as under the MMDR Act, it could possibly be held that the learned Special Judge has taken cognizance of the offences in terms of Section 22 of MMDR Act.

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In drawing the above conclusion, I am fortified by the observations of the Hon’ble Supreme Court in the case of FAKHRUDDIN AHMAD vs. STATE OF UTTARANCHAL AND ANOTHER, (2008) 17 SCC 157, wherein it is observed that ” whether Magistrate has or has not taken cognizance of offence will depend upon circumstances of the particular case, including

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mode in which case is sought to be instituted and the nature of preliminary action”. No doubt, even in the said case it is held that “ before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of accusations and applied his mind to allegations made in complaint or in police report or information received from a source other than a police report, as the case may be, and material filed therewith. It is only when the Magistrate applies his mind and is satisfied that allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offenders, that it can be positively stated that he has taken cognizance of the offence.”

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Similar view is taken in MEHMOOD UL REHMAN vs. KHAZIR MOHAMMAD TUNDA AND OTHERS, (2015) 12 SCC 420 , wherein it is held that “ though no formal or speaking or reasoned orders are required at the stage of Ss.190/204 CrPC, there must be sufficient indication in the order that the Magistrate is satisfied that: (i) the facts alleged in the complaint constitute an offence, and (ii) these facts when considered along

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with the statements recorded under S.200 CrPC and the result of inquiry or report of investigation under S.202 CrPC, if any, prima facie make the accused answerable before the criminal court.”

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As the impugned order and the records of the proceedings disclose that the learned Special Judge has considered the material placed before him namely, the charge sheet which contain identical allegations as found in the complaint filed by the authorized officer under Section 22 of the Act, I hold the cognizance taken by the learned Special Judge and the summons issued by him in respect of MMDR offences is in accordance with Section 22 of MMDR Act.

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Viewed from another angle, on filing a complaint either under Section 200 CrPC or under Section 22 of MMDR Act, the course open for the Court/Magistrate was either to take cognizance based on the facts alleged in the complaint or to refer the complaint for investigation under Section 156(3) of CrPC or to postpone the process and hold an enquiry in terms of Section 202 of CrPC. In the instant case, detailed investigation into the alleged offences having already been undertaken by SIT

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pursuant to the directions of the Hon’ble Supreme Court and necessary evidence having been collected in respect of the alleged offences, the Special Court could not have ordered a parallel investigation nor could it have rejected the final report. It is not the case of the petitioner that the report submitted by the SIT is without authority of law. Even otherwise, investigating of the offenses is within the domain of the police and the power of the police officer to investigate into cognizable offence is not ordinarily impinged by any fetters. There is no provision under the MMDR Act that the appropriate authority alone shall investigate any complaint of breach of any of the provisions of the MMDR Act. As observed by the Hon’ble Supreme Court in KANWAR PAL SINGH vs. THE STATE OF UTTAR PRADESH (Crl.Appeal No.1920/2019, arising out of SLP (Crl.) No.10707/2019, dated December, 18, 2019), “the violation of Section 4 being cognizable offence, the police could always investigated the same, there being no bar under the MMDR Act”. Therefore, it follows that when the police have the power to investigate the contraventions of Section 4 of the Act, they have also the power to submit the final report. Therefore, no illegality

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could be attached to the final report and the evidence collected by the police officer in proof of the offences investigated by them under the Act. This report, therefore, cannot be excluded from consideration while taking cognizance of the offence under the Act, provided a complaint as required under Section 22 is filed by the authorized officer. If the argument of the learned counsel for the petitioner is accepted, despite there being a report on investigation, the Court has to either order for fresh investigation or hold an enquiry under Section 202 of Cr.PC, which would tantamount to nullifying the investigation ordered by the Hon’ble Supreme Court and the Government of Karnataka, which in the circumstances of the case cannot be permitted. It is a cardinal principle of law that every law is designed to further the ends of justice and shall not be frustrated on mere technicalities. When the law authorizes the police/SIT to investigate the offences including the offences under the MMDR Act, the said report cannot be excluded from consideration at the stage of cognizance or issuance of summons to the accused subject to the compliance of the requirements of Section 22 of the Act.

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In the light of these principles and for the reasons discussed above, and especially keeping in mind the peculiarities of the present case and the special circumstances arising on account of the investigation report submitted by SIT, in my view, the course adopted by the learned Special Judge in considering the final report for issuing process to the petitioner cannot be faulted with. Likewise, as held in the above decisions, non recording the reasons by the Special Court while issuing summons to the petitioner also cannot be a reason to set aside the order of cognizance and the summons issued to the petitioner. In the circumstances of the case, even if there is an error or omission on the part of the learned Special Judge, it is not something so vital as to cut at the root of jurisdiction so as to render the impugned order illegal or without jurisdiction so as to quash the entire proceedings as sought for by the petitioner. Since the petitioner was notified of the offences at the earliest point of time before his appearance, there is substantial compliance of the ” outward forms of the law” as held by the Constitution Bench of the Apex Court in WILLIE (WILLIAM) SLANEY vs. STATE OF MADHYA PRADESH, AIR 1956 SC 116.

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As a result, I hold that the impugned order of cognizance and issuance of summons by the learned Special Judge does not suffer from any error or illegality vitiating the proceedings pending against the petitioner. Point No.1 is answered accordingly.

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Point No.2 :

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The allegations made in the complaint which are duly supported by the material collected by SIT during investigation undoubtedly make out the ingredients of the offences under Sections 379, 409, 420, read with 120(B) of IPC and Sections 21, 23 r/w 4(1A) of MMDR Act, 1957 and Rule 165 r/w 144 of Karnataka Forest Rules, 1969. In the course of the arguments, the learned Special Public Prosecutor has referred to the relevant documents which prima facie disclose the involvement of the petitioner in the alleged offences. Under the said circumstances, the criminal action having been rightly initiated against the petitioner, I do not find any justifiable ground to interfere in the impugned proceedings.

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The contention of the petitioner that he is a mere

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commission agent and therefore, the allegations made in the complaint do not make out the offences under the provisions of the MMDR Act is concerned, a reading of Section 4(1A) of the Act provides that “ No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.” This provision covers all the activities including the activities alleged to have been carried on by the petitioner as commission agent. Therefore, I am unable to accept the submission of the learned counsel for the petitioner that merely being a commission agent, he cannot be prosecuted for the contravention of Section 4 of the MMDR Act. That apart, as pointed out by the learned Special Public Prosecutor that abundant material is available on record to show that the petitioner was actively involved in the export and transportation of the iron ore, in the wake of this material, I do not find any justifiable ground to uphold the contention of the petitioner.

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As a result, the petition being devoid of merits is liable to be dismissed and is accordingly, dismissed.

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In view of dismissal of main petitions, all pending I.As, if

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any, are also dismissed.

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Sd/-

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JUDGE

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