IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR Criminal Petition No.4933 OF 2017 BETWEEN:
MR.CHANDRAKANTH GOVIND NAIK, S/O GAVINDA MADHU NAIK, AGED ABOUT 51 YEARS, RANGE FOREST OFFICER, FORMERLY AT MASTHIKATTE, KARWAR.
PERMANENT RESIDENT OF SAKLABENA, PO:AVERSA, TQ:ANKOLA, KARWAR DISTRICT – 581 316.
(BY SRI.P.N.HEGDE, ADV. - ABSENT) AND:
CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, BANGALORE.
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE – 560 032.
... PETITIONER ... RESPONDENT THIS CRL.P. IS FILED U/S 482 OF CR.P.C. PRAYING TO I)SET ASIDE THE ORDER DATED 31.12.2016 PASSED BY THE XXXII ADDL. CITY CIVIL AND S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE (CH-34) IN SPL.C.C.NO.268/2013. II) ALLOW THE APPLICATION IN I.A.NO.3/2015 FILED BY THE PETITIONER U/S 227 OF THE CODE OF CRIMINAL PROCEDURE AND CONSEQUENTLY DISCHARGE THE PETITIONER FROM THE OFFENCES U/S 120B, 420 OF IPC AND SEC.7, 13(1)(d) READ WITH 13(2) OF P.C.ACT.
THIS CRL.P. IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who is accused No.6 in Special CC No.268/2013 registered by the respondent – C.B.I for the offences punishable under Section 120(B) r/w Sections 409 and 420 of IPC and Sections 7, 12 and 13(2) r/w Sections 13(1) (c) and (d) of Prevention of Corruption Act, had filed an application for discharge under Section 227 of Cr.P.C., r/w Section 239 of IPC which came to be considered by the learned trial Judge and dismissed on the ground that overwhelming charge sheet material would disclose the alleged offences and as such, framing of charges is required by order dated 31.12.2016, which is called in question.
2. There is no appearance on behalf of the petitioner. Hence, I have perused the grounds urged in the petition, in order to examine whether it is a fit case for issuance of notice to respondent and on perusal of material on record it would disclose that petitioner had contended before the learned trial Judge that a false allegation has been made against him and it was he who had seized 5 lakh metric tonne of iron ore lying on Belekeri Port under a mahazar and had handed over the same to the Port Conservator of Belekeri for safe custody by following requisite rules and regulations and if there are any short comings in the said procedures adopted, at the most, it may amount to dereliction of duty and for proceeding to conduct Departmental Enquiry and there is no mens rea on the part of petitioner. Hence, prosecution cannot be proceeded against the petitioner.
3. This application was opposed to by respondent – C.B.I by filing objections and as already noticed herein above, learned trial Judge after considering entire material on record and evaluating the charge sheet material has rejected the application by impugned order.
4. It is urged in the petition that there is total non application of mind by the learned trial Judge; none of the grounds urged in the application is looked into and there is no prima facie case of either conspiracy or cheating, so as to attract Section 120B r/w Sections 409 and 420 of IPC; it is also urged that it is not the case of prosecution that petitioner has received any amount by way of bribe, as such, question of invoking Sections 7, 12, 13(2) r/w Sections 13(1)(c) and (d) of Prevention of Corruption Act,1988 is un-called for.
5. For framing of charge for the offence under Section 120B, general evidence would be suffice, insofar as it relates to conspiracy. In other words, connecting link or connecting factor would be sufficient enough for framing of charge.
6. A conspiracy is hatched generally in secrecy, as such, circumstances surrounding such conspiracy will have to be examined and prosecution will have to prove the same in order to decide complicity of the accused.
7. Keeping this in mind when facts on hand are examined, it would clearly indicate that petitioner along with his staff and panchas had visited Belekeri Port on 20.03.2010 and as per panchanama and seizure report there was seizure of iron ore measuring 5 lakh metric tonne approximately. After such seizure, iron ore was handed over on as-is-where-is conditions to the custody of accused No.3 namely Deputy Port Conservator. On 26.03.2010 and 29.03.2010, accused Nos.6 and 5 along with other Forest Officers and panch witnesses visited Belekeri Port and marked 24 heaps of iron ore out of 60 heaps of seized iron ore and had drawn panchanama showing 5 lakh metric tonnes marked heaps, leaving out remaining unmarked heaps as unseized. Infact Stevedores of the port in their report have submitted that total iron ore available in their land was to the tune of 8,05,991.08 metric tonnes and this figure also finds a place in forest case registered ie., FOC No.17/2009-10. While said case was under investigation, accused Nos.4 to 6 and other accused, according to prosecution had entered into a criminal conspiracy amongst themselves and in furtherance of conspiracy, accused No.1 -
Company illegally Exported seized iron ore fines in heap No.18 of a quantity measuring 34,544.06 metric tonnes.
8. According to prosecution, namely the challen submitted before the Court below it disclosed that accused No.2 being Managing Director of accused No.1 – Company, had paid a bribe of Rs.15.00 lakhs as demanded by accused No.5 and after receiving said money, accused No.5 got forest clearance issued by accused No.6 who wrote letter dated 03.04.2010 to accused No.4 giving clearance for Export of entire seized iron ore in stack No.18 / heap No.18. According to prosecution, accused No.6 had issued Port clearance without verifying documents of accused No.1 – company in utter disregard to order passed by this Court in WP No.10349/2010.
9. It is the case of prosecution that though accused No.6 himself had seized iron ore at the Port on 20.03.2010, he did not ensure proper identification of seized iron ore material and he did not even give details of iron ore to Port Conservator, Belekeri to whom iron ore was handed over for safe custody. It is also their further case that accused No.6 though was physically present at Belekeri Port when marking of iron ore heap was done on 20.09.2010. He had wrongly informed the Section Forester that unmarked iron ore lying at the Port were having supporting documents, though no such records were available to confirm that he had verified the documents in respect of unmarked iron ore heaps and thereby, it resulted in export of iron ore lying at the Port which were unmarked. Hence, C.B.I has contended that there was criminal conspiracy hatched and accused No.6 had also not marked all the heaps lying at Belekeri Port and only 24 heaps were marked to match the quantity of iron ore, approximately 5 lakh metric tonne which was shown to be seized in the mahazar out of 60 heaps. On these allegations charges have been pressed into service against the petitioner.
10. Though it is not the case of C.B.I that applicant either demanded any illegal gratification or accepted the same, issues of other offences punishable under IPC provisions being conspicuously present, learned trial Judge has rightly dismissed the application and thus, it would be open for learned trial Judge to frame appropriate charges against petitioner – accused.
Subject to these observations, order passed by learned trial Judge stands affirmed and petition stands dismissed.
SD/- JUDGE GH