IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4390/2017 BETWEEN:
1. K. SOMASHEKAR, AGED ABOUT 46 YEARS, S/O. K. SUBRAMANYAM, A-9, DWARAKA MAYE, WARD NO.31, BEHIND RTO, HOSPET – 583 203.
2. M/S. ILC INDUSTRIES LTD., A REGISTERED COMPANY, D-6/7, NEAR INDUSTRIAL ESTATE, DAM ROAD, HOSPET – 583 203, REPRESENTED BY ITS DIRECTOR, SRI K. SOMASHEKAR. ... PETITIONERS (BY SRI VAIDYA RAVI LAXMINARAYANA, ADVOCATE) AND:
THE STATE OF KARNATAKA THROUGH THE CENTRAL BUREAU OF INVESTIGATION, ANTI-CORRUPTION BRANCH, GANGANAGAR, BANGALORE – 32. ... RESPONDENT ***** THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO: 1) SET ASIDE THE ORDER DATED 17.04.2017 PASSED BY THE XLVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, BENGALURU CITY (CCH- 47) IN SPL.C.C.NO.6/2014 REFUSING TO DISCHARGE THE PETITIONERS U/S 239 R/W 227 OF CR.P.C. BY HOLDING THAT THE PROSECUTION HAS PLACED SUFFICIENT PRIMA-FACIE MATERIAL TO FRAME THE CHARGES AGAINST THE PETITIONERS (AS WELL AS THE OTHER ACCUSED PERSONS) FOR THE COMMISSION OF OFFENCES P/U/S 120B R/W 409, 420, 434, 447, 468 AND 471 OF IPC AND ALSO PROVISIONS OF SECTION 13(2) R/W 13(1)(c) & (d) OF PREVENTION OF CORRUPTION ACT, 1988.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, COURT MADE THE FOLLOWING:
O R D E R Two charge sheets have been filed on 30/11/2013 and 03/09/2015 before the jurisdictional Sessions Court against Accused Nos.1 to 24 under Section 120-B r/w Sections 409, 420, 434, 447, 468, 471 and 379 of IPC and under Section 13(2) r/w 13(1) (c) and (d) of Prevention of Corruption Act, 1988, for causing loss of Rs.100.5 crores and Rs.13.11 crores respectively, to the Government and the learned trial Judge had taken cognizance of the offence, which is registered in Special C.C.No.6/2014. On obtaining permission from the trial Court, further investigation was conducted and supplementary charge sheet against other accused for the aforesaid offences was also filed, in respect of which, cognizance has been taken.
2. Petitioners (Accused Nos.1 and 15) sought for discharge contending that there was no acceptable prima facie allegation of conspiracy against them; there is no evidence as to the nature of crime, time and place entering into such agreement, duration of such agreement amongst others.
3. The crux of the argument canvassed on behalf of the petitioners i.e., Accused No.1 and 15 is that charge sheet would indicate offence is under Mines and Minerals (Development and Regulation) Act, 1957 [hereinafter, referred to as “the MMDR Act”] and except the above complaint filed under Section 22 of the MMDR Act by the authorities in this behalf, the Court can take cognizance of the said offence under the said Act only and to overcome said lacuna, prosecution has invoked the provisions of IPC and Prevention of Corruption Act, 1988 and as such, proceedings against petitioners may be quashed.
4. Said prayer came to be opposed by the learned Special S.P.P. before trial Court by contending that trial Court after considering rival contentions had by detailed order rejected said prayer and has proceeded to order for framing of charges against the petitioners along with other accused persons by order dated 17/04/2017 and there is no infirmity in said order.
5. I have heard the arguments of Sri Vaidya Ravi Lakshminarayana, learned counsel appearing for the petitioners.
6. Petitioners’ counsel would reiterate the grounds urged in the petition and contend that entire allegation is found on the accusation of conspiracy and there being no material whatsoever placed by the prosecution even for drawing an inference of conspiracy of accused-petitioners of having entered into an agreement, learned trial Judge could not have been proceeded to pass orders to frame charges or in other words, it ought to have discharged the petitioners. He would also elaborate his submission by contending that reading of the charge sheet material would disclose that petitioners have received iron ore without permit and at the most, it would constitute an offence under MMDR Act, which mandates that only on a complaint filed by competent officer the jurisdictional Court can take cognizance of the offences under the MMDR Act as prescribed under Section 21 of the MMDR Act and such complaint should be filed by an authorized person of the Central Government or State Government and complaint having not filed as prescribed under Section 21 of MMDR Act in the instant case, very invoking of the provisions of IPC and Prevention of Corruption Act, 1988 is erroneous and liable to be quashed. Hence, he has prayed for allowing the petition and discharging the accused persons.
7. He would submit that even according to the prosecution, primary offence is under the MMDR Act or in other words, substantial offence having been committed under the MMDR Act, invoking of the provision under IPC and Prevention of Corruption Act was not called for and this aspect has not been looked into by the learned trial Judge by scrutinizing charge sheet material and it has resulted in miscarriage in the administration of justice. Hence, he prays for allowing the petition and quashing the proceedings.
8. This Court having heard learned counsel appearing for petitioners and on perusal of order passed by learned trial Judge, is of the considered and firm view that this petition would not call for issuance of notice to respondents and is liable to be dismissed at the threshold for the reasons stated herein below.
9. It is trite law that at the initial stage of framing of charge, Court would not insist upon proof with strong suspicion that the accused has committed an offence, which if put to trial could prove him guilty. All that the trial Court would seek is to find out as to whether the charge sheet material on record even if it stands unrebutted may not lead to conviction of the accused and thereby calling upon the accused to undergo ordeal trial would be an abuse of the process of law and only in such circumstances the accused could be heard to contend that instead of undergoing ordeal trial he may be discharged.
10. Probable defence the accused may raise during the course of trial which may ultimately end in acquittal or conviction would not to be looked into at the stage of considering the prayer for discharge.
11. The trial Court would also not examine the material evidence or the charge sheet material by conducting mini trial and it is for the prosecution to prove its case during the course of trial and it is for the trial Court to determine whether there is sufficient material on the basis of which the prosecution is relying upon to convict or acquit the accused. At that stage, the only question which would arise is whether the averments made in the complaint and the charge sheet material spell out the ingredients of a criminal offence or not. The correctness or otherwise of such material has to be decided only by trial. Accused cannot be discharged only on the ground that allegations made therein would not end in conviction of the accused or in anticipation of the probable defence that accused may put up during the course of the trial. If material placed by the prosecution would prima facie on broadly satisfy the alleged offences alleged against the accused, prayer for discharge would not be entertained or trial Court would not be inclined to grant prayer of discharge.
12. The Hon’ble Apex Court in the case of State of Tamil Nadu by Ins. Of Police, Vigilance and Anti Corruption vs. N.Suresh and others with State V.K. Ponmudi and others reported in (2014 CRI.L.J. 1444), has held:-
“True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
13. At the time of framing of the charge, the probative value of the charge sheet material placed by prosecution cannot be gone into and if necessary, it has to be accepted as true and at the stage of framing of charge, Court has to apply its judicial mind and it should proceed to frame the charges. It is in this background, learned trial Judge in the instant case has considered the prayer made by the petitioners (A-1 and A-15) for their discharge and noticed the Documents No.125, 126, 211, 911, 152, 255, 871, 159, 203, 206, 215, 877, 150, 199, 201, 873 and 875 Document Nos.1437 to 1441, 1500 to 1501, 1328, 1458 and statements of witnesses CWs.16, 231, 47, 31, 37, 39, 40, 51, 239, 46, 14, 66 and 204 reveals as to the role of the Accused No.1.
14. In the instant case, Accused Nos.1 and 15 were charge sheeted for the offences punishable under Sections 379, 409, 420, 434, 447, 467, 468, 471 IPC and Section 13(2) r/w 13(1) and (c) and (d) of the Prevention of Corruption Act, 1988.
15. In the background of contentions raised by learned counsel appearing for Accused Nos.1 and 15 namely, bar contained under Section 21 of MMDR Act, for the Court to take cognizance of the offence in the event of complaint having not been filed by the authorized officer of the State Government or Central Government, learned trial Judge has rightly arrived at a conclusion that MMDR Act does not prohibit or place embargo for the investigating authorities to investigate the case under the provisions of IPC or Prevention of Corruption Act, 1988. To arrive at the said conclusion, Section 28 of the Prevention of Corruption Act, 1988 as well as Section 20 of the General Clauses Act, 1897 has been rightly taken into consideration.
16. The contention of learned counsel for petitioners would have been susceptible to acceptance if the allegation was only with regard to the transportation and storage of minerals contrary to the provisions of MMDR Act. However, it is not so in the instant case, inasmuch as, even implication of the provisions of MMDR Act would not be a fatal to the case of the prosecution as there is no bar under the MMDR Act to prosecute the accused under other provisions of IPC or other special enactments like Prevention of Corruption Act, 1988. The allegation against the accused being of criminal conspiracy, criminal breach of trust by the public servants, cheating and dishonestly inducing delivery of property, mischief by destroying or moving etc., a land-mark fixed by public authority, criminal trespass, forgery for purpose of cheating and fraudulently, dishonestly using the documents which the accused knows or has reason to believe to be forged documents, which would fall either under the Prevention of Corruption Act or IPC.
17. On the basis of charge sheet, learned trial Judge at Paragraph No.86 of the impugned order has arrived at a conclusion that it is not possible to say that there is no conspiracy by the accused.
18. In light of the aforestated discussion this Court is of the view that it is not a fit case where petition deserves to be admitted or where it calls for issuance of notice to the respondents. Hence, this petition stands rejected without being admitted.
I.A.No.I/2017 for stay does not survive for consideration as the petition has been dismissed on merits. Hence, I.A.No.I/2017 also stands rejected.
SD/-
JUDGE *mvs