PRADEEP S. WODEYAR versus THE STATE OF KARNATAKA

[2021] 11 S.C.R. 985

PRADEEP S. WODEYAR

THE STATE OF KARNATAKA

(Criminal Appeal No. 1288 of 2021

NOVEMBER 29, 2021

[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND B.V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973 – ss. 193, 209 and 465 –Mines and Mineral (Development and Regulation) Act, 1957 –Karnataka Forest Rules, 1969 – Special Court’s power to takecognizance – Allegations of purchasing and selling extracted ironore illegally without mining dispatch permits and the payments ofcharges to the Mining and Geological Departments and the ForestDepartment – FIR registered and final report u/s. 173 of Cr.P.C.submitted – Additional City and Civil Sessions Judge and SpecialJudge took cognizance after perusing the final report – Petitionsfiled before the High Court u/s.482 Cr.P.C. to quash the criminalproceedings were dismissed – Before the Supreme Court, theappellant-accused contended that the Special Court (which is aSessions Court) is not empowered to take cognizance of offenceswithout the case being committed to it, in view of s.193 CrPC –Since the Magistrate did not commit the case to the Special Courtbefore it took cognizance of the offences in the instant case, it hasbeen contended that the order taking cognizance is vitiated as it iswithout jurisdiction and it has led to failure of justice – Held : TheSpecial Court does not have, in the absence of specific provisionto that effect, the power to take cognizance of an offence under theMMDR Act without the case being committed to it by the Magistrateu/s. 209 CrPC – The order of the Special Judge dated 30.12.2015taking cognizance is therefore irregular – However, the objectiveof s.465 is to prevent the delay in the commencement and completionof trial – S.465 CrPC is applicable to interlocutory orders such asan order taking cognizance and summons order as well – Therefore,even if the order taking cognizance is irregular, it would not vitiatethe proceedings in view of s.465 CrPC – As fas as failure of justiceis concerned, the cardinal principle that guides s.465(2) CrPC isthat the challenge to an irregular order must be urged at the earliest

CDEF

A– In the instant case, the cognizance order was challenged by theappellant two years after cognizance was taken – No reason wasgiven to explain the inordinate delay – Moreover, in view of thediminished role of the committal court u/s. 209 of the Code of 1973as compared to the role of the committal court under the erstwhileCode of 1898, the gradation of irregularity in cognizance orderBmade in Sections 460 and 461 and the seriousness of the offence,no failure of justice has been demonstrated.

Code of Criminal Procedure, 1973 – s. 193 – Mines andMineral (Development and Regulation) Act, 1957 – KarnatakaForest Rules, 1969 – Cognizance of the offence and not the offenderC– The Special Judge by an order mentions that cognizance is takenagainst the accused – Whether merely because the cognizance ordermentions that cognizance is taken against the ‘accused’, the entireproceedings would be vitiated – Held : It is settled principle oflaw that cognizance is taken of the offence and not the offender –DHowever, the cognizance order indicates that the Special Judgehas perused all the relevant material relating to the case beforecognizance was taken – The change in the form of the order wouldnot alter its effect – The order taking cognizance inadvertentlymentioned that the Special Judge has taken cognizance against theaccused instead of the offence – This would not vitiate the entireEproceedings.Mines and Mineral (Development and Regulation) Act, 1957– Karnataka Forest Rules, 1969 – Code of Criminal Procedure,1973 – ss. 193, 220 – Penal Code, 1860 – Cognizance by the SpecialCourt of the offences under IPC – It was contended that even if theFSpecial Judge had the power to take cognizance of the offence, hecould only have taken cognizance of offences under the MMDRAct and could not have taken cognizance (and conduct trial) of theoffences under the provisions of IPC – Held : Since offences underIPC are alleged to have been committed in the course of the sameGtransaction as the offences under the MMDR Act, the situation issquarely covered by sub-section (1) of s.220 of CrPC – The SpecialCourt has the power to take cognizance of offences under MMDRAct and conduct joint trial with other offences if permissible u/s.220 CrPC – There is no express provision in the MMDR Act whichindicates that s.220 CrPC does not apply to proceedings under theHMMDR Act.

Mines and Mineral (Development and Regulation) Act, 1957– Karnataka Forest Rules, 1969 – Code of Criminal Procedure,1973 – s. 193 – Cognizance order and non-application of mind –Allegations of purchasing and selling extracted iron ore illegallywithout mining dispatch permits and the payments of charges to theMining and Geological Departments and the Forest Department –FIR registered and final report u/s. 173 of Cr.P.C. submitted –Additional City and Civil Sessions Judge and Special Judge tookcognizance after perusing the final report – It was contended thatthe order of the Special Judge taking cognizance has not sufficientlydemonstrated application of mind to the material placed before him– Held : The Special Judge, took cognizance on the basis of areport submitted u/s. 173 CrPC and not on the basis of privatecomplaint – The Special Judge took note of the FIR, the witnessstatements, and connected documents before taking cognizance ofthe offence – In this backdrop, it would be far-fetched to fault theorder of the Special Judge on the ground that it does not adducedetailed reasons for taking cognizance or that it does not indicatethat an application of mind.

Mines and Mineral (Development and Regulation) Act, 1957– s.22 – Karnataka Forest Rules, 1969 – Code of CriminalProcedure, 1973 – Allegations of purchasing and selling extractediron ore illegally without mining dispatch permits and the paymentsof charges to the Mining and Geological Departments and the ForestDepartment – FIR registered and final report u/s. 173 of Cr.P.C.submitted – Additional City and Civil Sessions Judge and SpecialJudge took cognizance after perusing the final report – Appellantcontended that before the Special Court (Sessions Court) tookcognizance of the offence, no complaint was filed by the authorisedperson – Held : combined reading of the notifications dated 29May 2014 and 21 January 2014 indicate that the Sub-Inspector ofLokayukta is an authorized person for the purpose of s.22 of theMMDR Act – The FIR that was filed to overcome the bar u/s. 22 hasbeen signed by the Sub-Inspector of Lokayukta Police and theinformation was given by the SIT – Therefore, the respondent hadcomplied with s.22 MMDR Act.

Mines and Mineral (Development and Regulation) Act, 1957– s.23 – Karnataka Forest Rules, 1969 – Code of Criminal

ABC

AProcedure, 1973 – Vicarious liability – Allegations of purchasingand selling extracted iron ore illegally without mining dispatchpermits and the payments of charges to the Mining and GeologicalDepartments and the Forest Department – FIR registered and finalreport u/s. 173 of Cr.P.C. submitted – Additional City and CivilSessions Judge and Special Judge took cognizance after perusingBthe final report – It was contended that the charge- sheet does notascribe any role to A-1 and hence the process initiated against himmust be quashed – Held : The determination of whether theconditions stipulated in s.23 of the MMDR Act have been fulfilledis matter of trial – Moreover, it is evident that the charge sheet, asCa matter of fact, ascribes role to A-1 and A-2 for the payment oftransportation – Therefore, there is prima facie case against A-1,which is sufficient to arraign him as an accused at this stage.

Dismissing the appeals, the Court

HELD : Special Court’s power to take cognizanceD

1. Section 193 CrPC states that the Sessions Court shallnot take cognizance of an offence as Court of original jurisdictionunless the Magistrate commits the case to it. The only exceptionis if it is expressly provided otherwise by the Code or the statute.Neither the Code nor the MMDR Act provide that the SpecialECourt could directly take cognizance of the offences. Therefore,the Sessions Court did not have the authority to take cognizance.[Para 34][1018-A-B]

Section 465 CrPC

F2. Section 465 stipulates that the order passed by Courtof competent jurisdiction shall not be reversed or altered by aCourt of appeal on account of an irregularity of the proceedingsbefore trial or any inquiry. It is settled law that cognizance is pre-trial or inquiry stage. Therefore, irregularity of cognizance orderis covered by the provision. In order to determine if the provisionGapplies to pre-trial orders like an irregular cognizance orderor only applies to orders of conviction or acquittal, it is necessarythat the provision is interpreted contextually. [Para 37][1019-D-E]

3. It needs to be determined if condoning the irregularityHof the cognizance order under Section 465 would lead to failure

of justice. In considered opinion of this Court, it would not leadto failure of justice for the following reasons :

(i) The diminished role of the committing Court underSection 209 of the new Code while committing the case to theCourt of Session. Both the decision in Bhooraji as well as thesubsequent decision in Ratiram notice that under the Code of1898, the Magistrate had broad power at the stage of committalwhich included the power to examine witnesses and to allow cross-examination. Such power is noticeably absent in the provisionsof Section 209 of the CrPC. On the contrary, Section 209 makesit abundantly clear that when case is instituted on the basis of apolice report or otherwise and it appears to the Magistrate thatthe offence is triable exclusively by the Court of Sessions, theMagistrate shall commit the case to the Court of Sessions aftercomplying with the provisions of Section 207 or Section 208, asthe case may be. The circumstance to which the Magistrate hasto apply their mind is solely whether the offence is triableexclusively by the Court of Sessions. Since the committingMagistrate does not have wide discretionary powers to exerciseat this stage not exercising it would not cause any injustice to theparties; (ii) Gradation in irregularity of cognizance order underSections 460 and 461- Under Sections 460 and 461, the ordertaking cognizance based on police report has been given agreater standing as compared to an order taking cognizance basedon information received from any person other than police officeror upon the own knowledge of the Magistrate, for the specificpurpose of deciding on the irregularity of the order. The reasonbehind the gradation is because in the former case, the Magistratehas material based on an investigation by the police to groundhis decision which may be absent when cognizance is taken basedon information by any other person. In this case, cognizance wastaken based on the SIT report. Therefore, the case squarely fallsunder Section 190(b) of CrPC which under Section 460, even ifirregular would not vitiate the proceedings; (iii) Objective of theMMDR Act : The appellants are accused of the commission ofoffences under the MMDR Act involving the export andtransportation of minerals without permit. Offences under the

AMMDR Act are environmental crimes. These crimes impact uponsociety at large. These offences cause detriment to and affectthe well-being of the entire community. Environmental crime isnot confined within geographical or state limits. The impact ofenvironmental crime transcends borders and time; (iv) ThePreamble of the Act at the time of its enactment indicated that itBis an Act for regulation of mines and the development of minerals.The ultimate object of the provision is to ensure that violatorsare punished by speedy process of trial before court dulyconstituted in that behalf; and (v) The delay in the commencementof trial : In the present case, there was considerable delay of twoCyears. [Para 44][1023-E-H; 1024-A-G; 1025-H; 1026-B-C]

Cognizance of the offence and not the offender

4. In the factual matrix before this Court, the Special Judgeby an order dated 30 December 2015 referred to all the relevantmaterial before him, including the FIR and witness statements,Dbefore taking cognizance. The question that arises is whethermerely because the cognizance order mentions that cognizanceis taken against the accused, the entire proceedings would bevitiated. The order taking cognizance inadvertently mentionedthat the Special Judge has taken cognizance against the accusedEinstead of the offence. This would not vitiate the entireproceedings, particularly where material information on thecommission of the offence had been brought to the notice of andhad been perused by the Special Judge. [Para 52] [1031-G-H;1032-A-B]

FCognizance by the Special Court of offences under the IPC

5. Section 409 IPC deals with the offence of Criminal breachof trust by public servant, banker, or agent, while Section 420IPC deals with cheating. Since both these offences are alleged tohave been committed in the course of the same transaction asGthe offences under the MMDR Act, the situation is squarelycovered by sub-section (1) of Section 220 of CrPC. It now needsto be determined if Section 220 CrPC can be applied toproceedings before the Special Court constituted under theMMDR Act. [Para 58][1036-A-B]

6. Section 4(1) CrPC states that all offences under the IPCshall be investigated and tried according to the provisionscontained in the CrPC. Section 4(2) states that all offences underany other law shall be investigated and tried according to thesame provisions, subject to any other enactment that regulatesthe manner of investigation and trial. Section 5 states that nothingin the Code shall affect any special law that confers power, andjurisdiction, unless there is specific provision to the contrary.Section 30C of the MMDR Act stipulates that unless otherwiseprovided by the Act, the CrPC shall apply to the proceedingsbefore the Special Court. Therefore, on combined reading ofSections 4 and 5 of CrPC along with Section 30C of the MMDRAct, it is apparent that the procedure prescribed under the Codeshall be applicable to proceedings before the Special Court unlessthe MMDR Act provides anything to the contrary. Theseprovisions incorporate the principle of express repeal – i.e.,unless any provision of the CrPC is expressly repealed by theprovisions of the MMDR Act, the procedure prescribed underthe CrPC would apply to the proceedings before the Special Court.Since there is no express provision that excludes the applicationof Section 220 CrPC, it needs to be examined if the MMDR Acthas by necessary implication excluded the application of Section220 CrPC. [Paras 59, 60 and 62][1036-C-D, F-H; 1037-C-D]

7. The Judicial Magistrate First Class is invested with theauthority to try offences under Sections 409 and 420 IPC. On theother hand, the Sessions Judge is appointed as Special Judgefor the purposes of the MMDR Act. If the offences under theMMDR Act and the IPC are tried together by the Special Judge,there arises no anomaly, for it is not case where judge placedlower in the hierarchy has been artificially vested with the powerto try the offences under both the MMDR Act and the Code.Additionally, if the offences are tried separately by different forathough they arise out of the same transaction, there would be amultiplicity of proceedings and wastage of judicial time, and mayresult in contradictory judgments. It is settled principle of lawthat construction that permits hardship, inconvenience,injustice, absurdity and anomaly must be avoided. Section 30B of

ABC

Athe MMDR Act and Section 220 CrPC can be harmoniouslyconstrued and such construction furthers justice. Therefore,Section 30B cannot be held to impliedly repeal the application ofSection 220 CrPC to the proceedings before the Special Court.[Para 67][1040-G-H; 1041-A-B]

-BCognizance order and nonapplication of mind

8. The Special Judge, it must be noted, took cognizance onthe basis of report submitted under Section 173 CrPC and noton the basis of private complaint. Therefore, the case is squarelycovered by the decision in Afroz Mohammed Hasanfatta. TheCSpecial Judge took note of the FIR, the witness statements, andconnected documents before taking cognizance of the offence.In this backdrop, it would be far-fetched to fault the order of theSpecial Judge on the ground that it does not adduce detailedreasons for taking cognizance or that it does not indicate that anapplication of mind. In the facts of this case, therefore, the orderDtaking cognizance is not erroneous. [Para 75][1047-E-G]

‘Authorised person’ and Section 22 of MMDR Act

9. Section 22 of the MMDR Act stipulates that no Courtshall take cognizance of any offence punishable under this Act orERules, except upon complaint made in writing by personauthorised on that behalf by the Central or the State Government.It has been contended by the appellant that before theSpecial Court (Sessions Court) took cognizance of the offence,no complaint was filed by the authorised person. [Para 76][1047-G-H; 1048-A]F

10. The Government of Karnataka issued notification on29 May 2014 declaring that the Office of the Inspector Generalof Police, Special Investigation Team, Karnataka Lokayukta shallbe police station for the purpose of Section 2(s) and shall havejurisdiction throughout the State of Karnataka for offences relatedGto the illegal mining of minerals. The FIR was filed by the SIT,Lokayukta pursuant to the Order of this Court dated 16September 2013 and was signed by the Sub-inspector of Police,Karnataka Lokayukta. On reading of the notification dated 29May 2014, it is evident that the SIT has the jurisdiction throughoutKarnataka in relation to mining offences. S.No. 13 of theH

Notification dated 21 January 2014 authorizes the Sub- inspectorof Police‘ within its jurisdiction for the purpose of Section 22 ofthe MMDR Act. Therefore, on combined reading of both thenotifications, it is clear as day light that the complaint filed by SITand signed by the Sub-Inspector of Police has complied withSection 22 of the MMDR Act. [Para 80][1052-H; 1053-A-C]

Vicarious liability and Section 23 of MMDR Act

11. A-1 submitted that the charge-sheet does not ascribeany role to A-1 and hence the process initiated against him mustbe quashed. Section 23(1) of the MMDR Act stipulates that wherethe offence has been committed by company, every person whoat the time of the commission of the offence was in-charge of andresponsible for the conduct of business shall be deemed to beguilty of the offence. The proviso stipulates that nothing containedin sub-section (1) shall render such person liable to punishment,if he proves that the offence was committed without his knowledgeor that he exercised all due diligence of preventing thecommission of the offence. [Para 82][1054-E-F]

12. The test to determine if the Managing Director mustbe charged for the offence committed by the Company is todetermine if the conditions in Section 23 of the MMDR Act havebeen fulfilled i.e., whether the individual was in-charge of andresponsible for the affairs of the company during the commissionof the offence. In view of the above decisions, the submissionswhich has been urged on behalf of the appellant cannot be accededto. The determination of whether the conditions stipulated inSection 23 of the MMDR Act have been fulfilled is matter oftrial. Moreover, it is evident that the charge sheet, as matter offact, ascribes role to A-1 and A-2 for the payment oftransportation. Therefore, there is prima facie case against A-1, which is sufficient to arraign him as an accused at this stage.[Para 84][1056-C-E]

13. The findings of the Court are summarised as below:

(i) The Special Court does not have, in the absence of aspecific provision to that effect, the power to take cognizance ofan offence under the MMDR Act without the case being

Acommitted to it by the Magistrate under Section 209 CrPC. Theorder of the Special Judge dated 30 December 2015 takingcognizance is therefore irregular; (ii) The objective of Section465 is to prevent the delay in the commencement and completionof trial. Section 465 CrPC is applicable to interlocutory orderssuch as an order taking cognizance and summons order as well.BTherefore, even if the order taking cognizance is irregular, itwould not vitiate the proceedings in view of Section 465 CrPC;(iii) The decision in Gangula Ashok was distinguished in Rattirambased on the stage of trial. This differentiation based on the stageof trial must be read with reference to Section 465(2) CrPC.CSection 465(2) does not indicate that it only covers challenges topre-trial orders after the conclusion of the trial. The cardinalprinciple that guides Section 465(2) CrPC is that the challengeto an irregular order must be urged at the earliest. Whiledetermining if there was failure of justice, the Courts ought toaddress it with reference to the stage of challenge, theDseriousness of the offence and the apparent intention to prolongproceedings, among others; In the instant case, the cognizanceorder was challenged by the appellant two years after cognizancewas taken. No reason was given to explain the inordinate delay.Moreover, in view of the diminished role of the committal courtEunder Section 209 of the Code of 1973 as compared to the role ofthe committal court under the erstwhile Code of 1898, thegradation of irregularity in cognizance order made in Sections460 and 461 and the seriousness of the offence, no failure of justicehas been demonstrated; (iv) It is settled principle of law thatcognizance is taken of the offence and not the offender. However,Fthe cognizance order indicates that the Special Judge has perusedall the relevant material relating to the case before cognizancewas taken. The change in the form of the order would not alterits effect. Therefore, no failure of justice under Section 465 CrPCis proved. This irregularity would thus not vitiate the proceedingsGin view of Section 465 CrPC; (v) The Special Court has the powerto take cognizance of offences under MMDR Act and conduct ajoint trial with other offences if permissible under Section 220CrPC. There is no express provision in the MMDR Act whichindicates that Section 220 CrPC does not apply to proceedingsunder the MMDR Act; (vi) Section 30B of the MMDR Act doesH

not impliedly repeal Section 220 CrPC. Both the provisions canbe read harmoniously and such an interpretation furthers justiceand prevents hardship since it prevents multiplicity ofproceedings; (vii) Since cognizance was taken by the SpecialJudge based on police report and not private complaint, it isnot obligatory for the Special Judge to issue fully reasoned orderif it otherwise appears that the Special Judge has applied his mindto the material; (viii) combined reading of the notifications dated29 May 2014 and 21 January 2014 indicate that the Sub-Inspectorof Lokayukta is an authorized person for the purpose of Section22 of the MMDR Act. The FIR that was filed to overcome thebar under Section 22 has been signed by the Sub-Inspector ofLokayukta Police and the information was given by the SIT.Therefore, the respondent has complied with Section 22 CrPC;and (ix) The question of whether A-1 was in-charge of andresponsible for the affairs of the company during the commissionof the alleged offence as required under the proviso to Section23(1) of the MMDR Act is matter for trial. There appears to bea prima facie case against A-1, which is sufficient to arraign himas an accused at this stage. [Para 85][1056-F-H; 1057-A-H;1058-A-E]

Dharam Pal v. State of Haryana, Constitution Bench(2014) 3 SCC 306 : [2013] 13 SCR 1052 – followed.

Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516: [2012] 3 SCR 496; Kishun Singh v. State of Bihar(1993) 2 SCC 16 : [1993] 1 SCR 31; MunicipalCouncil, Palai v. T.J Joseph AIR 1963 SC 1561 :[1964] SCR 87; Harshad Mehta v. State ofMaharashtra (2010) 8 SCC 257; Pepsi Foods Ltd. v.Special Judicial Magistrate (1998) 5 SCC 749 : [1997]5 Suppl. SCR 12; State (NCT of Delhi) v. Sanjay (2014)9 SCC 772 : [2014] 9 SCR 1063; SMS Pharmaceuticalsv. Neeta Bhalla (2005) 8 SCC 89 : [2005] 3 Suppl. SCR371; Mainuddin Abdul Sattar Shaikh v. Vijay Salvi(2015) 9 SCC 622 : [2015] 6 SCR 1033 – relied on.

Gangula Ashok v. State of AP (2000) 2 SCC 504 : [2000]1 SCR 468; State of MP v. Bhooraji (2001) 7 SCC 679

: [2001] 2 Suppl. SCR 128; Moly v. State of Kerala(2004) 4 SCC 584 : [2004] 3 SCR 346; Vidyadharanv. State of Kerala (2004) 1 SCC 215 : [2003] 5 Suppl.SCR 524; Shantaben Bhurabhai Bhuriya v. AnandAthabhai Chaudhari, Criminal Appeal No. 967 of 2021;Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :[2014] 2 SCR 1; AR Antulay v. RR Nayak, 1988 AIR1531 : [1988] 1 Suppl. SCR 1; Santhosh De v. ArchanaGuha AIR 1994 SC 1229 : 1994 (3) Suppl. SCC 735;Anna Reddy Sambvisa Reddy v. State of A.P, AIR 2009SC 2661 : [2009] 6 SCR 755; Chief EnforcementOfficer v. Videocon International Ltd., (2008) 2 SCC492 : [2008] 2 SCR 36; Fakhruddin Ahmad v. State ofUttaranchal, (2008) 17 SCC 157 : [2008] 13 SCR 66;State of W.B. v. Mohd. Khalid (1995) 1 SCC 684 : [1994]6 Suppl. SCR 16; Ranjit Singh v. State of Punjab (1998)7 SCC 149 : [1998] 2 Suppl. SCR 8; RN Agarwal v. RCBansaL (2015) 1 SCC 48 : [2014] 14 SCR 1124;Harshad Mehta v. State of Maharashtra, (2010) 8 SCC257; State of Orissa v. M/s M.A. Tulloch, AIR 1964 SC1284 : [1964] SCR 461; Syndicate Bank v. Prabha D.Naik, (2001) 4 SCC 713 : [2001] 2 SCR 714; State ofMP v. Kedia Leather & Liqour Limited, (2003) 7 SCC389 : [2003] 2 Suppl. SCR 727; Lal Shah Baba DargahTrust v. Magnum Developers, (2015) 17 SCC 65 : [2015]10 SCR 966; Deep Chand v. State of Uttar Pradesh(1959) 2 SCR 8; Fakhruddin Ahmad v. State ofUttaranchal (2008) 17 SCC 157 : [2008] 13 SCR 66;Mehmood Ul Rehman v. Khazir Mohammad Tunda(2015) 12 SCC 420 : [2015] 4 SCR 841; Sunil BhartiMittal v. CBI (2015) 4 SCC 609 : [2015] 1 SCR 377;Ravindranatha Bajpe v. Bangalore Special EconomicZone Ltd Criminal Appeal Nos. 1047-1048/2021;Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC424 : [2012] 2 SCR 696; State of Gujarat v. AfrozMohammed Hasanafatta (2019) 20 SCC 539; KanwarPal Singh v. The State of Uttar Pradesh (2020) 14 SCC331 : 2019 (12 ) JT 420; Jayant v. The State of MadhyaPradesh (2021) 2 SCC 670; 2020 (12 ) JT 52; Shiva

Kumar Jatia v. NCT of Delhi (2019) 17 SCC 193 : [2019]11 SCR 210; Sunil Sethi v. State of Andhra Pradesh(2020) 3 SCC 240; Ravindranatha Bajpe v. MangaloreSpecial Economic Zone Ltd. 2021 SCC OnLine 806 –referred to.

Case Law Reference

[2000] 1 SCR 468referred toPara 25

[2001] 2 Suppl. SCR 128referred toPara 26

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1288 of 2021.

From the Judgment and Order dated 12.11.2020 of the High Courtof Karnataka at Bengaluru in Criminal Petition No.2512 of 2017.

With

Criminal Appeal Nos.1289 and 1290 of 2021.

Pravin H. Parekh, Siddhartha Dave, Sr. Advs., S. Udaya KumarSagar, Ms. Bina Madhavan, L. M. Chidanandayya, Ms. Akanksha Mehra,M/s Lawyer S. Knit & Co., Naveen Kumar, Vinit Kumar, ShourajeetChakravarty, Siddharth Garg, Ms. Devanshi Singh, Himanshu Chaubey,Advs. for the Appellant.

Nikhil Goel, AAG, V. N. Raghupathy, Ashutosh Ghade, VinayMathew, Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

Contents*

A. The Facts..........................................................................3

B. The Submissions.............................................................13

C. The Analysis..................................................................17

C.1 The power to take cognizance...............................17

C.2 Special Court’s power to take cognizance..............19

C.2.1 Section 465 CrPC and interlocutory orders.....30

*The Contents is as per the Original Judgment.

[2021] 11 S.C.R.

AC 2.2 Section 465 CrPC and failure of Justice...........35

C.3 Cognizance of the offence and not the offender........41

C.4 Cognizance by the Special Court of offences underthe IPC...................................................................47

C.4.1 Joint trial and express repeal...........................51

C.4.2 Joint trial and implied repeal............................54

C.5 Cognizance order and non-application of mind....58

C.6 ‘Authorised person’ and Section 22 of MMDR Act..67

CC.7 Vicarious liability and Section 23 of MMDR Act.......74

D. The Conclusion...............................................................78

A. The Facts

1. Single Judge of the High Court of Karnataka dismissed twoDpetitions instituted by the appellants for quashing the criminal proceedingsinitiated against them in Special CC No.599/2015 (arising out of CrimeNo.21/2014) for offences punishable under the provisions of Sections409 and 420 read with Section 120B IPC, Sections 21 and 23 read withSections 4(1) and 4(1)(A) of the Mines and Mineral (Development andERegulation) Act 1957[1] and Rule 165 read with Rule 144 of the KarnatakaForest Rules 1969.

2. Pradeep S. Wodeyar, who is the Managing Director of aCompanyby the name of Canara Overseas Limited is arraigned as thefirst accused[2 ]and is the appellant in the appeal arising out of SLPF(Criminal) No138/2021. Lakshminarayan Gubba, who is director ofthe said company has been arraigned as the second accused[3 ]and is theappellant in the appeal arising out of SLP (Criminal) No.1448/2021.

3. An overview of the criminal case needs to be noticed.

4. On 1 June 2009, Canara Overseas Limited, Company dealingGin exports and imports is alleged to have entered into an agreement withK. Ramappa, the third accused[4], who is the owner of Mineral Miners

1 "MMDR Act”

2 "A-1"

3 "A-2"

H4 "A-3"

and Traders, Bellary for the purpose of exporting iron ore. In pursuanceof the agreement, the company purchased 31,650.65 metric tons (MTs)of iron ore from A-3, of which 20,000 metric tons were exported toChina between the period of 1 January 2009 to 31 May 2010, while theremaining iron ore was sold to two other companies in India. Thesetransactions are alleged to have been carried out through, or at BelekerePort in Karnataka. It has been alleged that the transportation and exportof iron ore was carried out in the absence of permits from the ForestDepartment and the Department of Mines and Geology. The iron oreinvolved in the transactions is alleged to have been removed from theMining Lease No.921/2553, Kallahari Village, Bellary. The fourthAccused[5] is allegedly the mine owner while the fifth accused[6] is theiragent. The iron ore is alleged to have been stocked in an unauthorizedstockyard without bulk permits from the department of Mines and Geologyand to have been transported without an authorized forest way pass.Acting in conspiracy, the accused are alleged to have caused loss ofRs.3,27,83,379/- to the state exchequer.5. Persistent complaints were made on large-scale illegal miningand transportation of iron ore, and illegal encroachment in forest areasfor the purpose of illegal mining. Samaj Parivartna Samudaya filed aPetition[7 ]under article 32 before this Court regarding illegal mining in theforest areas in Andhra Pradesh and Karnataka. The Central EmpoweredCommittee[8], pursuant to an order of this Court dated 19 November2010submitted report on 7 January, 2011 regarding six mining leases inthe Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This Courtby an order dated 25 February 2011 directed the CEC to submit itsreport in respect of the allegations of illegal mining in Karnataka. Pursuantto the order, the CEC filed five reports on illegal mining. Following thesubmission of the report of the CEC dated 3 February 2012 raisingconcerns over illegal mining, transportation, sale and export of iron orein the districts of Bellary, Chitradurga and Tumkur, directions were issuedby this Court on 16 September 2013 for an investigation by the CBI. Thepurport of the directions of this Court was as follows:

(i)CBI was permitted to register criminal cases against those

exporters in respect of whom preliminary enquiry had

5 "A-4"

6 "A-5"

7 Writ Petition (Civil) No. 562/2009

8 "CEC”

[2021] 11 S.C.R.

Abeen conducted, involving export of more than 50,000 MTsof iron ore without valid permits;

(ii)CBI was permitted to refer the cases of exporters whohad exported less than 50,000 MTs and had not beenenquired in the preliminary enquiry (PE), to the GovernmentBof Karnataka for taking necessary action in accordancewith relevant laws;

(iii)CBI was permitted to refer to the Government of Karnatakafor initiating action against exporters who had been enquiredinto in the PE and had exported less than 50,000 MTs ofCiron ore without valid permits; and

(iv)The Government of Karnataka was directed to take actionunder relevant law as recommended by the CEC in its reportdated 5 September 2012 with regard to those exporters whohad exported less than 50,000 MTs and report compliance.

D6. On 22 November 2013, the Government of Karnataka entrustedthe above cases in terms of the orders of this Court for further investigationand criminal proceedings to the Lokayukta Police. On 21January 2014,the state government issued notification authorizing several officers,including the Inspector of Police, as ‘authorized persons’ for the purposeEof sub-sections (3) and (4) of Section 21 and Section 22 of the MMDRAct and Rules 43(3) and 46 of the Karnataka Minor Mineral ConcessionRules, 1994. On 24 January 2014, the Government of Karnatakaconstituted Special Investigation Team[9] in the Karnataka Lokayuktafor investigation of illegal mining among other purposes. The SIT includedthe Inspector of Police. On 29 May 2014, the Home Department of theFGovernment of the Karnataka declared, in pursuance of Section 2(s) ofthe Criminal Procedure Code,[10] that the office of the Inspector Generalof Police, SIT, Karnataka Lokayukta shall be police station for thepurpose of the said clause and, power and jurisdiction in respect of theoffences of illegal mining of minerals/minor minerals as defined in Section3of the MMDR Act was conferred. The text of the notification is extractedGbelow:

“In exercise of the powers conferred by clause (s) of Section 2 ofthe Code of Criminal Procedure, 1973 (Central Act 2 of 1974),

9 "SIT”H10 "CrPC”

the Government of Karnataka hereby declare that with effectfrom the date of publication of this notification in the OfficialGazette, the office of Inspector General of Police, SpecialInvestigation Team, Karnataka Lokayuktha, Bangalore shall be aPolice Station for the purpose of the said clause with jurisdictionthroughout the State of Karnataka and shall have powers andjurisdiction in respect of the offences of illegal mining of “minerals”and “minor minerals” as defined under Section 3 of the Minesand Minerals (Regulation and Development) Act, 1957 (CentralAct 6 7 of 1957) committed under the provisions of the followingActs and the corresponding rules, if any, made thereunder namely:-

1. Indian Penal Code, 1860

2. Prevention of Corruption Act, 1988

3. The Karnataka Forest Act, 1962

4. Any other offence under any other relevant Act committedeither in furtherance of or in violation of the above mentionedDActs or to undertake illegal mining; and

5. Any other cases of illegal mining entrusted by State Government.

The Notification shall remain in force for period of two years, co-terminus with the term of the Special Investigation Team (SIT).”

7. On 9 October 2014, an FIR was registered in the first case(Crime No.21/2014) against the following accused:

(i)G. Lakshminarayan Gubba, Managing Director, CanaraOverseas Private Limited;

(ii) Canara Overseas Private Limited;

(iii)K. Ramappa, owner of M/s Mineral Miners and Traders;and

(iv)Unknown Government Officials and unknown privatepersons.

8. final report under Section 173 of the CrPC was submitted on17 December 2015 against:

(i)Canara Overseas Limited represented by Sri Pradeep S.Wodeyar, Managing Director (A-1);

(ii)Lakshminarayana Gubba (A-2);

A(iii)K. Ramappa (A-3);

(iv)Smt. Shanthalakshmi Jayaram (A-4); and

(v)J. Mithileshwar (A-5).

9. On 29 December 2015, the Deputy Registrar, City Civil Court,Bengaluru passed the following order noting that the charge-sheet wasBsubmitted on 17 December 2015:

“The charge sheet is submitted by the Inspector of Police, S.I.T.Kamataka Lokayukta, Bengaluru, on 17.12.2015. The offencesalleged against the above named accused punishable U/s 409,420 r/w 120B IPC 21, 23 r/w 4(1), 4(l)(A) of MMDR Act 1957Cand Sec. 165 r/w 144 Kamataka Forest Rules 1969. Prays thatfor the reasons stated therein this Hon’ble Court may be pleasedto prosecute the above named accused for the aforesaid offences:

1. F.I.R. Complaint. Crime papers in Cr.No.21/2014 are enclosed.

D2. Connected documents are produced.

3. Statements of witnesses are produced.

4. Accused copies are furnished.

5. Connected properties are not produced.

E6. Al & A4 are not arrested as per charge sheet.A2, A3 & A5 are on court bail.

Place it before the XXIII Addi. City Civil & Sessions Judge andSpecial Judge for Prevention of Corruption Act for kind orders.Sd/- 29/12/15FDeputy Registrar

City Civil Court

Bengaluru.”

10. On 30 December 2015,the 23[rd] Additional City Civil SessionsGJudge and Special Judge for Prevention of Corruption Act at BengaluruCity took cognizance after perusing the final report. direction was alsoissued for the registration of the case against the accused persons andfor issuance of summons. The order reads as follows:

“Perused the final report. Cognizance is taken against AccusedHNo. 1 to 5. Register the case against Accused No. 1 to 5. Register

PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the case against Accused No. 1 to 5. Register the case and issuesummons to accused No. 1 to 5 returnable by 16.01.2016.

Sd/-30.12.2015

Special Judge,

Prevention of Corruption Act

Bangalore Urban, Bangalore”

11. On 20 March 2017, proceedings were instituted before theHigh Court under Section 482 CrPC for quashing the criminal proceedingsinitiated against the appellants. The appellants sought the quashing ofthe criminal proceedings on the following grounds:

(i)A-1 was not involved in the alleged illegal transaction. Hewas residing in Indonesia at the relevant point of time. Theaffairs of the company were managed by A-2;

(ii)According to the agreement entered into for the transaction,Dthe responsibility of obtaining the dispatch permit from theconcerned Department of Mines and Geology and totransport the same was on the A-3. Therefore, A-2 couldnot be prosecuted for procuring iron ore without the permit;

(iii)The order of the Special Judge taking cognizance does notmention the offences for which cognizance was taken.Therefore, the cognizance order reflects non-application ofmind; and

(iv)The Special Judge did not have the power to take cognizanceof offences under the MMDR Act without complaint bythe authorized officer in view of Section 22 of the MMDRAct.

12. The High Court by its judgment dated 12 November 2020dismissed the quashing petitions filed by Pradeep S. Wodeyar (A-1) andLakshminarayan Gubba (A-2) on the following grounds:

(i)A-1 is sought to be prosecuted in his capacity as ManagingDirector of the company. Under Section 23 of the MMDRAct every person who at the time the offence wascommitted was responsible for the conduct of the businessshall be guilty of the offence. Whether A-1 was personallyinvolved in the relevant transaction could only be decided

Aduring the trial since A1 would have to prove that thecommission of the alleged offence was not within hisknowledge in terms of the proviso to Section 23;

(ii)Though according to the agreement, A-3 was given theresponsibility of obtaining the mineral dispatch permit, A-2Btransported the minerals without insisting on A-3 obtainingthe permit;

(iii)The order taking cognizance was passed after consideringthe SIT report. It is sufficient if the order reflects applicationof mind. It is settled position of law that an order takingCcognizance need not be elaborate, with lengthy reasoning.It is sufficient if the Special Judge has satisfied himself thatthere is sufficient ground for proceeding against the accusedperson;

(iv) complaint was filed by the authorized person as requiredDunder Section 22 of the MMDR Act based on the SIT report;

(v)There are similar allegations in the complaint and the SITreport. If the Special Judge has looked into the SIT reportand has satisfied himself that the allegations prima faciedisclose the commission of the offence, the Special JudgeEhas taken cognizance of the offence under Section 22 ofthe MMDR Act; and

(vi)When complaint is filed under either Section 200 CrPCor under Section 22 of the MMDR Act, the Court couldeither take cognizance based on the facts on record or canFrefer the complaint for investigation under Section 156(3)of CrPC or order fresh enquiry under Section 202 CrPC.Since detailed investigation has already been undertakenby the SIT, the Special Court can consider the SIT reportfor the purpose of taking cognizance.

13. SLP (Criminal) No.138/2021 and SLP (Criminal) No.1448/G2021 were instituted under Article 136 of the Constitution to challengethe judgment of the High Court. In the appeal arising out of the companionSLP[11], the appellant is the proprietor of concern by the name of TBSLogistics which is involved in the business of buying, selling and exporting

iron ore. The case of the prosecution is that the appellant entered into acriminal conspiracy with other accused persons, for purchasing and sellingextracted iron ore illegally without mining dispatch permits and the paymentof charges to the Mining and Geological Departments and the ForestDepartment. On 9 October 2014, Crime case No.23/2014 was registeredwith the police investigation team, Karnataka Lokayukta Bengaluru foroffences punishable under Sections 409, 420 and 471 read with 120B ofthe IPC, Sections 21 and (4)(1)(A) of the MMDR Act, 1957 and Rules144 and 165 of the Karnataka Forest Rules, 1959. charge sheet wassubmitted on 24 November 2015. The Special Judge took cognizance on30 December 2015. The appellant instituted petition under Section 482CrPC for quashing the criminal proceedings. The petition was dismissedby the High Court on 18 November 2020 for the following reasons:

(i)The argument that the SIT does not have the jurisdiction toinvestigate into mining offences is not res integra in viewof the judgments of the High Court. It is settled positionthat the SIT has the jurisdiction to register FIR toDinvestigate into mining offences;

(ii)An authorized officer filed the complaint before the SpecialJudge. Therefore, there is no infirmity in view of the barcontained in Section 22 of the MMDR Act;

(iii)The order taking cognizance makes it evident that the SpecialJudge referred to the FIR, charge-sheet, seizure mahazarand documents collected by the investigating officer fortaking cognizance of the offences. The order reflectsapplication of mind; and

(iv) The material produced by the SIT prima facie makes outthe ingredients of the offences charged against the petitioner.

14. Since similar issues arise in all the three appeals, they havebeen heard together. As stated earlier, in the first two appeals, A-1 andA-2 are before the court. The companion appeal has been instituted byA-1 (out of 5 accused).

B. The Submissions

15. It is in this backdrop that it becomes necessary to consider thesubmissions which have been urged on behalf of the appellants in supportof the three appeals.

A16. Mr. Siddharth Daveand Mr Pravin Parekh, Senior Counselhave led the arguments on behalf of the appellants. Their submissionshave proceeded along the following lines:

(i)The order of the Special Judge taking cognizance is contraryto law. Cognizance, it is well settled, has to be taken of theoffences and not of the offender. Yet the Special Judge hasacted illegally, without application of mind in takingcognizance of the accused;

(ii)A-1 (Pradeep S. Wodeyar) cannot be held vicariously liablesince:

(a)He was not in-charge of the affairs of the companyat the relevant time during the alleged illegaltransactions;

(b)He was in Indonesia and hence cannot be heldpersonally responsible;

D(iii)The Special Court constituted under Section 30(B) of theMMDR Act has jurisdiction only to try offences forcontravention of Section (4)(1) or Section 4(1)(A) of theMMDR Act, punishable under Section 21(1). This powerof the Special Court does not extend to taking cognizance(and conducting trial) of offences punishable under the IPC;

(iv)Section 193 CrPC bars the Court of Session from takingcognizance of any offence as court of original jurisdictionunless the case has been committed to it by the Magistrateunder the Code. The only exception is if it has beenotherwise expressly provided by the CrPC or by any otherFlaw for the time being in force. There is no specific provisionin the MMDR Act or the Code empowering the Court ofSession to take cognizance without an order of committalby the Magistrate; and

(v)Section 22 of the MMDR Act stipulates that no Court shallGtake cognizance of any offence punishable under the Actor any Rules made under it except upon written complaintmade by person authorized in this behalf by the CentralGovernment or the State Government. There was noauthorization for the Inspector of the Lokayukta Police andhence there has been violation of the provisions of SectionH22.

17. The submissions urged on behalf of the appellants have beenopposed by the State of Karnataka. Mr. Nikhil Goel has urged thefollowing submissions before this Court:

(i)A-1 was undisputedly the Managing Director of CanaraOverseas Private Limited during the period when theoffences were committed. Section 23 of the MMDR Actincorporates the principle of criminal vicarious liability. Theproviso to Section 23(1) carves out the exception that whenit is proved that the offence was committed without theknowledge of the accused or that he had exercised all duediligence, he shall not be vicariously liable for the offencesby the company. Establishing the conditions in the proviso,however, is matter of trial. Moreover, it is settled principlethat the role of the Managing Director is distinct since bythe very nature of the position, the person who occupies itis in-charge of, and responsible for, the conduct of thebusiness;

(ii)The order of the Deputy Registrar indicates that the entirepapers of the investigation were placed before the SpecialJudge. Moreover, the order of the Special Judge indicatesthat he had perused the charge sheet and thereafter hadtaken cognizance and proceeded to issue summons. Hence,there can be no grievance of non-application of mind. Adistinction has to be drawn in law between cognizance basedon complaints under Section 200 CrPC which are notproceeded by an investigation and complaint proceededby police report. well-reasoned cognizance order is notrequired when cognizance is taken pursuant to policereport since the Magistrate has enough material before thecourt to peruse. However, since there is dearth of materialin Section 200 CrPC complaint, it is only in such casesthat cognizance order needs to be well-reasoned to proveapplication of mind. Moreover, in the present case, the HighCourt has after detailed discussion come to the conclusionthat the summons issued to the appellants contained detailsof the offences. Therefore, the accused were aware of thecharges against them. Hence, it cannot be argued that theorder issuing summons did not fulfil the requirement ofSection 190 or that cognizance was not validly taken;

1008SUPREME COURT REPORTS

A(iii)The mere fact that cognizance was directly taken by theSessions Court, in itself, would not be sufficient to quashthe entire criminal proceeding under Section 482 CrPC. Inview of the constricted role of the Magistrate under Section209 at the stage of committal of an offence exclusivelytriable by the Sessions Court, the absence of committalBorder of the Magistrate is hardly of any significance unlessa failure of justice is shown. In any event, in the presentlitigation, the appellants moved the High Court in 2017inorder to challenge the cognizance order of 2015. In themeantime, submissions on the framing of charges wereCaddressed before the Special Judge. There is absolutely nomaterial to indicate that failure of justice has beenoccasioned due to the Magistrate not passing an order ofcommittal;(iv)There is no merit in the submission that there was an absenceDof delegation of power under Section 22 of the MMDR Actto file complaint under Section 21(i):

(a)The Government of Karnataka had issued specificnotification for the purpose of Section 22 on 21January 2014, authorizing among others, the policeEinspector having jurisdiction over the place; and

(b)The High Court has recorded that complaint wasfiled under Section 22 read with Section 21(i) of theMMDR Act and that it contains allegations identicalto those contained in the charge sheet and SIT reportFpertaining to offences under the Act.

C. The Analysis

18. Having adverted to the submissions of the parties, we shallnow turn to the issues raised before this Court.G

C.1 The power to take cognizance

19. Chapter XIV of the CrPC is titled “Conditions Requisite forInitiation of Proceeding”. Section 190 empowers the Magistrate to takecognizance of any offence:H

“190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate ofthe first class, and any Magistrate of the second class speciallyempowered in this behalf under sub- section (2), may takecognizance of any offence-

(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

(c) upon information received from any person other than policeofficer, or upon his own knowledge, that such offence has beencommitted.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub- section (1) ofsuch offences as are within his competence to inquire into or try.”

20. Clauses (a), (b) and (c) of sub-section (1) of Section 190contemplate cognizance being taken by Magistrate of an offence byany of the following three modes, namely upon:

(i)the Magistrate receiving complaint of facts whichconstitute an offence;

(ii)a police report of such facts; and

(iii)information received from any person other than policeofficer or upon his own knowledge that an offence has beencommitted.

21. Section 193 reads as follows:

“193. Cognizance of offences by Courts of Session. Except asotherwise expressly provided by this Code or by any other lawfor the time being in force, no Court of Session shall takecognizance of any offence as Court of original jurisdiction unlessthe case has been committed to it by Magistrate under thisCode.”

Section 193 stipulates that unless the case has been committed bya Magistrate to the Sessions Court under the Code, no Court of Sessionshall take cognizance of any offence. But there are two exceptions tothis formulation, namely, where:

1010SUPREME COURT REPORTS

A(i)the CrPC has made an express provision to the contrary;and

(ii)an express provision to the contrary is contained in “anyother law for the time being in force”.

The bar in Section 193 is to the Sessions Court taking cognizanceBof an offence, as court of original jurisdiction unless the case has beencommitted to it by the Magistrate under the Code.

22. Section 209 states that when case is instituted either on apolice report or otherwise, and it appears to the Magistrate that theoffence is exclusively triableby the Sessions Court, he shall commit thecase to the Court of Session. Section 209 reads as follows:C

“209. Commitment of case to Court of Session when offence istriable exclusively by it. When in case instituted on policereport or otherwise, the accused appears or is brought before theMagistrate and it appears to the Magistrate that the offence istriable exclusively by the Court of Session, he shall-D(a) commit, after complying with the provisions of section 207 orsection 208, as the case may be, the case to the Court of Session,and subject to the provisions of this Code relating to bail, remandthe accused to custody until such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remandEthe accused to custody during, and until the conclusion of, thetrial;

(c) send to that Court the record of the case and the documentsand articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case toFthe Court of Session.”

C.2 Special Court’s power to take cognizance

23. The counsel for the appellant contended that the SpecialCourt(which is Sessions Court) is not empowered to take cognizanceof offences without the case being committed to it, in view of SectionG193 CrPC. Since the Magistrate did not commit the case to the SpecialCourt before it took cognizance of the offences in the instant case, it hasbeen contended that the order taking cognizance is vitiated. As stated inthe earlier section of the judgment, Section 193 is subject to twoexceptions- (a) provisions to the contrary under the CrPC; (b) provisionsHto the contrary under any other law.

24. Reference was made to Section 36A(1)(d) of the NationalDrugs and Psychotropic Substances Act 1985[12], Section 5 of thePrevention of Corruption Act 1988[13 ]and Section 16(1) of the NationalInvestigation Agency Act 2008[14] which specifically empower the SpecialCourt to take cognizance of offences without the accused beingcommitted to it for trial. It was contended that since neither the Codenor the statute specifically empower the Special Court to take cognizanceof the offence without committal, the exercise of power by the SpecialCourt to take cognizance is without jurisdiction.

25. Before we address the merits of this contention, we find itimperative to refer to the judgments of this Court on the interpretation ofSection 193 CrPC. The decision of two judge Bench in Gangula Ashokv. State of AP[15] arose out of complaint lodged under the ScheduleCastes and the Scheduled Tribes (Prevention of Atrocities) Act 1989[16]against the appellants. The police filed charge-sheet upon investigationdirectly before the Sessions Court. The Sessions Court is designated asa Special Court for trial of offences under the Act. Charges were framedby the Special Judge. The High Court was moved for quashing thecharges and the charge-sheet. The Single Judge held that the SpecialJudge had no jurisdiction to take cognizance of the offence under theAct without the case being committed to it and accordingly set aside theproceedings. The High Court directed the charge-sheet and connectedpapers to be returned to the police officer who was directed to presentit before the JMFC for the purpose of committal and the Special Courtwas directed on committal to frame appropriate charges. The order ofthe High Court was questioned in appeal before this Court. The firstissue which arose was whether the Special Judge could have takencognizance ‘straightway without the case being committed’ by theMagistrate. The Special Court under the SC and ST Act was Court ofSessions, having regard to Section 14 of the Act. After setting out theprovision of Section 14[17], Justice KT Thomas observed that the Special

12 "NSPS Act”13 "PC Act”14 "NIA Act”

15 (2000) 2 SCC 504

16 "SC and ST Act”

17 "For the purpose of providing for speedy trial, the State Government shall, with theconcurrence of the Chief Justice of the High Court, by notification in the OfficialGazette, specify for each district Court of Session to be Special Court to try theoffences under this Act”.

ACourt under the Act was constituted only for the ‘speedy trial’ of offenceswhich is different from an ‘inquiry’. In this context, it was observed:

“8…So it is for trial of the offences under the Act that particularCourt of Session in each district is sought to be specified as aSpecial Court. Though the word “trial” is not defined either in theBCode or in the Act it is clearly distinguishable from inquiry. Theword “inquiry” is defined in Section 2(g) of the Code as “everyinquiry, other than trial, conducted under this Code by Magistrateor court”. So the trial is distinct from inquiry and inquiry mustalways be forerunner to the trial. The Act contemplates onlythe trial to be conducted by the Special Court. The added reasonCfor specifying Court of Session as Special Court is to ensurespeed for such trial. “Special Court” is defined in the Act as “aCourt of Session specified as Special Court in Section 14” [videSection 2(1)(d)].”

After analyzing the provision of Sections 4(2) and 193 of the CrPCDthis Court observed that there is no express provision by which the SpecialCourt can take cognizance of the offence without committal; nor canthis be inferred. It was further observed that since the Sessions Court isplaced higher in the hierarchical court structure, the legislature intentionallyrelieved it from performing preliminary formalities:E

“10 [..] The word “expressly” which is employed in Section 193denoting those exceptions is indicative of the legislative mandatethat Court of Session can depart from the interdict contained inthe section only if it is provided differently in clear and unambiguousterms. In other words, unless it is positively and specificallyFprovided differently no Court of Session can take cognizance ofany offence directly, without the case being committed to it by aMagistrate.

11. Neither in the Code nor in the Act is there any provisionwhatsoever, not even by implication, that the specified Court ofGSession (Special Court) can take cognizance of the offence underthe Act as court of original jurisdiction without the case beingcommitted to it by Magistrate. If that be so, there is no reason tothink that the charge-sheet or complaint can straight away befiled before such Special Court for offences under the Act. It canbe discerned from the hierarchical settings of criminal courts thatH

the Court of Session is given superior and special status. Hencewe think that the legislature would have thoughtfully relieved theCourt of Session from the work of performing all the preliminaryformalities which Magistrates have to do until the case is committedto the Court of Session.”

26. Consequently, it was held that Special Court under the SCand ST Act is essentially court of Sessions and it cannot take cognizanceof the offence without the case being committed to it by the Magistratein accordance with the provisions of the CrPC. In other words, thecomplaint or chargesheet could not straightway be laid down beforethe Special Court. In this backdrop, this Court upheld the view of theHigh Court setting aside the proceedings initiated by the Special Court.

27. In State of MP v. Bhooraji[18], the appellant was convictedinter alia of an offence punishable under Section 302/149 of the IPCread with Section 3(2) of the SC and ST Act. Since the charge sheetwas filed under Section 3(2) of the SC and ST Act together with offencesunder the IPC, the appellants were tried by Special Judge constitutedunder the SC and ST Act. The appellant was convicted. An appeal wasfiled before the High Court against the conviction. During the pendencyof the appeal, this Court decided Gangula Ashok (supra). Aninterlocutory application was filed by the appellants seeking the trialproceedings to be quashed since the Special Court took cognizancewithout the case being committed to it by the Magistrate. The HighCourt allowed the application and directed the charge sheet and connectedpapers to be returned to the police who were directed to present it beforethe Magistrate for the purpose of committal. In appeal, this Court referredto Section 465(1) of the Code which states that no finding shall bereversed on account of irregularity unless there is failure of justice.The Bench compared the provision on committal to the Sessions Courtby the Magistrate[19], before and after the enactment of the Code of1973. Before 1973, the committal Court could examine witnesses andrecords before deciding to commit the case to the Court of Sessions.However, after 1973, the only examination that the Magistrate has toundertake for the exercise of the committal power is to determine whetherthe case is exclusively triable by the Court of Sessions. Highlighting thechange in the role of the committing court after 1973, the Bench observed

18 (2001) 7 SCC 679

19 Sections 207 and 207A of the Old Code, and Section 209 of the new Code

Athat the accused would achieve no ‘advantage’ by sending the caseback to the Magistrate for committal:

“18. It is apposite to remember that during the period prior to theCode of Criminal Procedure, 1973, the committal court, in policecharge-sheeted cases, could examine material witnesses, and suchBrecords also had to be sent over to the Court of Session alongwith the committal order. But after 1973, the committal court, inpolice charge-sheeted cases, cannot examine any witness at all.The Magistrate in such cases has only to commit the casesinvolving offences exclusively triable by the Court of Session.Perhaps it would have been possible for an accused to raise aCcontention before 1973 that skipping committal proceedings haddeprived him of the opportunity to cross-examine witnesses in thecommittal court and that had caused prejudice to his defence. Buteven that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counselDfor the accused to tell us what advantage the accused would secureif the case is sent back to the Magistrate’s Court merely for thepurpose of retransmission of the records to the Sessions Courtthrough committal order. We did not get any satisfactory answerto the above query put to the counsel.E28. contention was also raised on the ground that Section 465would only be applicable where the order has been passed by ‘court ofcompetent jurisdiction’, and that the Court of Sessions is not competentcourt before the case is committed to it. Rejecting this argument, it wasobserved that the phrase “court of competent jurisdiction” denotes aFvalidly constituted court conferred with the jurisdiction to try the offenceand an irregularity in the procedure would not denude the competenceof the court. The Bench further distinguished the decision in GangulaAshok (supra) on the ground that there the trial was yet to begin asopposed to this case where the challenge was after the accused wasconvicted. On these reasons, the appeal was allowed.G29. In Moly v. State of Kerala[20]and Vidyadharan v. State ofKerala[21], the accused was convicted under the SC and ST Act andprovisions of the IPC. The appeal against the conviction was dismissed20 (2004) 4 SCC 584H21 (2004) 1 SCC 215

by the Kerala High Court. Before this Court, it was contended that theSessions Court could not have taken cognizance without committal bythe Magistrate. Relying on Gangula Ashok (supra), it was held that theCourt of Sessions could not have taken cognizance and the order ofconviction was set aside.

30. In Rattiram v. State of Madhya Pradesh[22], three judgeBench of this Court dealt with divergence of views, in Moly (supra)and Vidhyadharan (supra) on one hand, and Bhooraji (supra) on theanother, on the effect of not committing an accused in terms of Section193 of the CrPC, in cases where chargesheet is filed under the SC andST Act and cognizance is directly taken by the Special Judge. JusticeDipak Misra (as the learned Chief Justice then was) delivered thejudgment of the three judge Bench to resolve the conflict of opinions.The Court was to decide on the issue of whether the cognizance orderpassed by the Special Court without committal of proceedings could beheld to vitiate the proceedings after the trial is completed:

“14. The demonstrable facet of the discord is that if cognizanceis directly taken by the Special Judge under the Act and an accusedwithout assailing the same at the inception allows the trial tocontinue and invites judgment of conviction, would he bepermitted in law to question the same and seek quashment of theconviction on the bedrock that the trial Judge had no jurisdictionor authority to take cognizance without the case being committedto it and thereby violated the mandate enshrined under Section193 of the Code.”

(emphasis supplied)

31. The Bench answered the question in the negative by holdingthat the trial will not be vitiated due to an irregularity in the cognizanceorder for the following reasons:

(i)Section 207 and Section 207A of the Code of 1898enunciated an exhaustive procedure which was to beGfollowed by the Magistrate before committing the case tothe Court of Sessions. The CrPC of 1973 made departurefrom the provisions of the erstwhile Code of 1898 underwhich “the accused enjoyed substantial right prior to

Acommittal of the case” which is “indeed vital stage”. Inmarked contrast, under the CrPC of 1973 the Magistrate“is only required to see whether the offences are exclusivelytriable by the Court of Sessions”. Noticing the cleardistinction between the earlier Code of 1898 and the CrPCof 1973, the Court held that “there is sea of difference”Bbetween the two provisions and there was nothing in Section209 of the CrPC of 1973 which would even remotely suggestthat the protections as provided under the old Code havebeen telescoped to the existing one”. In this backdrop, theCourt held that in view of the restricted role of the MagistrateCin committal proceedings, absence of committal would notlead to failure of justice;(ii)A criminal proceeding must endeavor to conform to theprinciples of ‘speedy trial’ and ‘protection of the victim ofthe crime’. Since the objection was not raised at the timeDof framing of charges but only after the conviction, thefailure of justice must be proved to be overbearing comparedto the right of the victim and right of speedy trial which wasnot proved in this case;

(iii)Moly (supra) and Vidhyadharan (supra) are perincuriam. Bhooraji (supra) has been correctly decided;Eand

(iv)In Gangula Ashok (supra), the trial had not commencedas compared to the other cases where the trial hadcompleted and the accused were convicted. The accuseddid not wait for the trial to commence before challengingFthe cognizance order.

32. It may be noted that Section 14 of the SC and ST Act hasbeen substituted by Act 1 of 2016 with effect from 26 January 2016.The proviso to Section 14(1), following the amendment, stipulates thatthe Special Court shall have the power to directly take cognizance ofGoffences under the Act. Recently, Division Bench of this Court inShantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari[23]interpreted the proviso to Section 14 of the SC and ST Act. In that case,FIR was filed for offences punishable under the SC/ST Act and provisionsof the Penal Code. The Judicial Magistrate took cognizance of the

H23 Criminal Appeal No.967 of 2021

offences and issued process under Section 204 and then committed thecase to the Special Court. An application was filed before the HighCourt seeking to quash the FIR and summons order. It was contendedthat in view of the proviso to Section 14 of the SC and ST Act, theMagistrate had no power to take cognizance of offences under the Act.The High Court allowed the application and quashed the proceedings onthe ground that the proviso to Section 14 ousts the jurisdiction of theMagistrate to take cognizance. On appeal, two judge bench of thisCourt set aside the judgment of the High Court by holding that the provisoto Section 14 of the SC and ST Act does not oust the power of theMagistrate to take cognizance, but it provides the power to takecognizance to the Special Court in addition to the Magistrate. Whilereversing the judgment of the High Court, Justice MR Shah, speakingfor the two judge Bench, observed:

(i)Section 14 does not take away the jurisdiction of theMagistrate to take cognizance and commit the case to theSpecial Court for trial. The words used in amended Section14 are “Court so established or specified shall havepower to directly take cognizance of the offences underthis Court”. The word, 'only' is missing; and

(ii)In view of the provisions of Section 460 CrPC, the act ofthe Magistrate in taking cognizance could at the highest beheld to be irregular and would not vitiate the proceedings.

33. The judgements on the interpretation of Section 193 CrPCmay for the purpose of analysis be divided into two categories based onthe time frame of challenge: (i) cases involving challenge to thecognizance order before and after the commencement of trial, that is,before the completion of the trial; and (ii) cases involving challenge tothe cognizance order after the completion of the trial. Gangula Ashok(supra) and Shantaben (supra) fall within the first category, whileRattiram (supra), Moly (supra), Bhooraji(supra)and Vidhyadharan(supra) fall within the second category. In both Bhooraji (supra)andRattiram (supra), though it was observed that the cognizance order isirregular, it was held not to vitiate the proceedings since there was no‘failure of justice’ that could be proved in view of Section 465 CrPC.However, in Gangula Ashok (supra), the challenge to the cognizanceorder was made before the commencement of the trial.

A34. Section 193 CrPC states that the Sessions Court shall nottake cognizance of an offence as Court of original jurisdiction unlessthe Magistrate commits the case to it. The only exception is if it isexpressly provided otherwise by the Code or the statute. Neither theCode nor the MMDR Act provide that the Special Court could directlytake cognizance of the offences. Therefore, the Sessions Court did notBhave the authority to take cognizance. Section 209 CrPC provides theMagistrate the power to commit the case. In Dharam Pal v. State ofHaryana, Constitution Bench[24], while discussing whether thecommitting court was required under Section 209 to take cognizance ofthe offence before committing the case to the Court of Sessions, heldCthat the Magistrate could either commit the case before or after takingcognizance. In this case, the Special Court has directly taken cognizance.It now needs to be determined if this irregularity in the cognizance ordervitiates the entire proceedings for the order to be quashed and set aside.

35. Thus, the issue before us is two-fold: (i) whether the principleDencompassed in Section 465 CrPC would be applicable to orders passedat the pre-trial stage; and (ii) If the answer to (i) is in the affirmative,whether order taking cognizance would lead to ‘failure of justice’ if itwere not to be quashed.

C.2.1 Section 465 CrPC and interlocutory ordersE36. Section 465 CrPC reads as below:

“465. Finding or sentence when reversible by reason oferror, omission or irregularity.—(1) Subject to the provisionshereinbefore contained, no finding, sentence or order passed bya Court of competent jurisdiction shall be reversed or altered byFa Court of appeal, confirmation of revision on account of anyerror, omission or irregularity in the complaint, summons, warrant,proclamation, order, judgment or other proceedings before orduring trial or in any inquiry or other proceedings underthis Code, or any error, or irregularity in any sanction for theGprosecution, unless in the opinion of that Court, failure of justicehas in fact been occasioned thereby;

(2) In determining whether any error, omission or irregularity inany proceeding under this Code, or any error or irregularity in anysanction for the prosecution has occasioned failure of justice,

H24 (2014) 3 SCC 306

the Court shall have regard to the fact whether the objectioncould and should have been raised at an earlier stage inthe proceedings.”

(emphasis supplied)

The general principle which is embodied in Section 465 CrPC isthat finding or order is not reversible due to irregularities unless a‘failure of justice’ is proved. Sub-section (2) of Section 465 providesthat while determining whether there has beena failure of justice, theappellate Court shall have regard to whether the objection regarding theirregularity could and should have been raised at an earlier stage in theproceeding. The observation in Rattiram (supra) distinguishing GangulaAshok (supra)on the basis of the stage of the trial thus takes its supportfrom Section 465(2) of the Code where classification is sought to bemade on the basis of the challenge vis-à-vis the stage of the proceedings.

37. Section 465 stipulates that the order passed by Court ofcompetent jurisdiction shall not be reversed or altered by Court ofappeal on account of an irregularity of the proceedings before trial orany inquiry. It is settled law that cognizance is pre-trial or inquiry stage.[25]Therefore, irregularity of cognizance order is covered by the provision.In order to determine if the provision applies to pre-trial orders like anirregular cognizance order or only applies to orders of conviction oracquittal, it is necessary that we interpret the provision contextually.

38. Chapter XXXV of the CrPC is titled Irregular Proceedings”.Section 460[26] on the one hand provides for those irregularities if any, on

25 Gangula Ashok v. State of A.P, (2000) 2 SCC 504; Hardeep Singh v. State of Punjab,(2014) 3 SCC 92, where Constitution Bench held that trial begins after framing ofcharge

26 460. Irregularities which do not vitiate proceedings. If any Magistrate not empoweredby law to do any of the following things, namely:-

(a)to issue search- warrant under section 94;

(b)to order, under section 155, the police to investigate an offence;

(c)to hold an inquest under section 176;

(d)to issue process under section 187, for the apprehension of person within his local

jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e)to take cognizance of an offence under clause (a) or clause (b) of sub- section (1) ofsection 190;

(f) to make over case under sub- section (2) of section 192;

(g) to tender pardon under section 306;

(h)to recall case and try it himself under section 410; or

(i)to sell property under section 458 or section 459, erroneously in good faith does

that thing, his proceedings shall not be set aside merely on the ground of his not beingso empowered.

Athe part of Magistrate which do not vitiate proceedings. Section 461[27],on the other hand, contains list of proceedings by the Magistrate whois not empowered by law in this behalf, which would vitiate theproceedings. Clause (e) of Section 460 relates to the taking of cognizanceof an offence under clause (a) or clause (b) of sub-section (1) of SectionB190 CrPC. Clause (a) of section 190(1) refers to the receipt of complaintof facts constituting an offence and clause (b) refers to police reportof the facts. Consequently, where Magistrate who is not empoweredby law takes cognizance of an offence either under clause (a) or clause(b) of Section 190(1) erroneously though in good faith, the proceedingswill not be set aside merely on the ground that the Magistrate was not soCempowered. In other words, for vitiating the proceedings, somethingmore than mere lack of authority has to be established. Clause (k) ofSection 461 adverts to situation where Magistrate who is notempowered takes cognizance of an offence under clause (c) of Section190(1). Section 190(1)(c) empowers the Magistrate to take cognizance

Dupon information received from person other than police officer orupon his own knowledge. The taking of cognizance under Section190(1)(c) by Magistrate who is not empowered, renders theproceedings void.

E27 461. Irregularities which vitiate proceedings. If any Magistrate, not being empoweredby law in this behalf, does any of the following things, namely:-

(a)attaches and sells property under section 83;

(b)issues search- warrant for document, parcel or other thing in the custody of apostal or telegraph authority;

(c)demands security to keep the peace;F(d)demands security for good behaviour;

(e)discharges person lawfully bound to be of good behaviour;

(f) cancels bond to keep the peace;

(g)makes an order for maintenance;

(h)makes an order under section 133 as to local nuisance;

(i)prohibits, under section 143, the repetition or continuance of public nuisance;

(j)makes an order under Part or Part of Chapter X;G(k)takes cognizance of an offence under clause (c) of sub- section (1) of section 190

(l)tries an offender;

(m)tries an offender summarily;

(n)passes sentence, under section 325, on proceedings recorded by another Magistrate;

(o)decides an appeal;

(p) calls, under section 397, for proceedings; or(q)revises an order passed under section 446, his proceedings shall be void.H

39. Section 462 relates to proceedings being taken in wrongplace; Section 463 with the non-compliance of the provisions of Section164[28] or Section 281[29] and Section 464 with the effect of an omission toframe, or absence of or error in charge. Section 465 deals withirregularity of “the complaint, summons, warrant, proclamation, order,judgment or other proceedings before or during trial”.

40. The overarching purpose of Chapter XXXV CrPC, as is evidentfrom reading of Sections 460 to 466, is to prevent irregularities that donot go to the root of the case from delaying the proceedings. Sections462-464 lay down specific irregularities which would not vitiate theproceedings. Section 465 on the other hand is broad residuary provisionthat covers all irregularities that are not covered by the above provisions.This is evident from the initial words of Section 465,namely, “Subject tothe provisions hereinabove contained”. Therefore, irregular proceedingsthat are not covered under Sections 461-464 could be covered underSection 465. It is also evident that the theme of ‘failure of justice’,uniformly guides all the provisions in the Chapter. There is no indicationin Section 465 and in Sections 462-464 that the provisions only apply toorders of conviction or acquittal. All the provisions use the words “finding,sentence or order”. Though one of the major causes of judicial delay isthe delay caused from the commencement of the trial to its conclusion,there is no denying that delay is also predominantly caused in the pre-trial stage. Every interlocutory order is challenged and is on appeal tillthe Supreme Court, on grounds of minor irregularities that do not go tothe root of the case. The object of Chapter XXXV of the CrPC is notonly to prevent the delay in the conclusion of proceedings after the trialhas commenced or concluded, but also to curb the delay at the pre-trialstage. It has been recognized by multitude of judgments of this Courtthat the accused often uses delaying tactics to prolong the proceedingsand prevent the commencement or conclusion of the trial.[30] The objectof Chapter XXXV is to further the constitutionally recognized principleof speedy trial. This was highlighted by Justice Jeevan Reddy whilewriting for two judge Bench in Santhosh De v. Archana Guha wherethe learned judge observed[31]:

28 Recording of confessions and statements

29 Record of examination of accused

30 AR Antulay v. RR Nayak, 1988 AIR 1531

31 AIR 1994 SC 1229

A“15. The facts of this case impel us to say how easy it has becometoday to delay the trial of criminal cases. An accused so mindedcan stall the proceedings for decades together, if he has the meansto do so. Any and every single interlocutory order is challenged inthe superior Courts and the superior Courts, we are pained to say,are falling prey to their stratagems. We expect the superior CourtsBto resist all such attempts. Unless grave illegality is committed,the superior Courts should not interfere. They should allow theCourt which is seized of the matter to go on with it. There isalways an appellate Court to correct the errors. One should keepin mind the principle behind Section 465 Cr. P.C. That any andCevery irregularity or infraction of procedural provision cannotconstitute ground for interference by superior Court unlesssuch irregularity or infraction has caused irreparable prejudice tothe party and requires to be corrected at that stage itself, becausesuch frequent interference by superior Court at the interlocutorystages tends to defeat the ends of Justice instead of serving thoseDends. It should not be that man with enough means is able tokeep the law at bay. That would mean the failure of the verysystem.”

41. Section 465 would also be applicable to challenges tointerlocutory orders such as cognizance order or summons order onEthe ground of irregularity of procedure. This interpretation is supportedby sub-section (2) to Section 465 which states that while determining ifthe irregularity has occasioneda failure of justice, the Court shall haveregard to whether the objection could or should have been raised at anearlier stage in the proceeding. Therefore, the very fact that the statuteFprovides that the Court is to consider if the objection could have beenraised earlier, without any specific mention of the stage of the trial,indicates that the provision covers challenges raised at any stage. TheCourt according to sub-Section (2)is to determine if the objection wasraised at the earliest.

GC 2.2 Section 465 CrPC and failure of Justice42. Rattiram (supra), had distinguished Gangula Ashok[32](supra)on the basis of the stage of the proceedings since the trial had not

32 It is to be noted that no discussion on the applicability of Section 465 CrPC wasHmade in Gangula Ashok

begun in the latter but was completed in the former. Rattiram (supra)does not hold that Section 465 CrPC would not be applicable to pre-trial cases. The differentiation between trial and pre-trial cases wasmade only with reference to sub-Section (2) of Section 465. Since thecognizance order was challenged after the trial was over, the accusedcould not prove failure of justice in view of Section 465(2). However,Section 465(2) only provides one of the factors that shall be consideredwhile determining if there has been failure of justice. Section 465(2)by corollary does not mean that if the alleged irregularity is challenged atan earlier stage, the failure of justice is deemed to be proved. Even insuch cases though, where the challenge is made before the trial begins,the party has the burden of provinga ‘failure of justice’. Further, even ifthe challenge is made before the trial begins, the Court still needs todetermine if the challenge could have been made earlier.

43. The test established for determining if there has been failureof justice for the purpose of Section 465 is whether the irregularity hascaused prejudice to the accused.[33] No straitjacket formula can be applied.However, while determining if there was failure of justice, the Courtscould decide with reference to inter alia the stage of challenge, theseriousness of the offence charged, and apparent intention to prolongproceedings. It must be determined if the failure of justice would overridethe concern of delay in the conclusion of the proceedings and the objectiveof the provision to curb the menace of frivolous litigation.

44. It needs to be determined if condoning the irregularity of thecognizance order under Section 465 would lead to ‘failure of justice’.In our considered opinion, it would not lead to failure of justice for thefollowing reasons:

(i)The diminished role of the committing Court under Section209 of the new Code while committing the case to the Courtof Session. Both the decision in Bhooraji (supra) as wellas the subsequent decision in Ratiram (supra) notice thatunder the Code of 1898, the Magistrate had broad powerat the stage of committal which included the power toGexamine witnesses and to allow cross-examination. Such apower is noticeably absent in the provisions of Section 209of the CrPC. On the contrary, Section 209 makes it

33 Anna Reddy Sambvisa Reddy v. State of A.P, AIR 2009 SC 2661

[2021] 11 S.C.R.

abundantly clear that when case is instituted on the basisof police report or otherwise and it appears to theMagistrate that the offence is triable exclusively by the Courtof Sessions, the Magistrate shall commit the case to theCourt of Sessions after complying with the provisions ofSection 207 or Section 208, as the case may be. Thecircumstance to which the Magistrate has to apply theirmind is solely whether the offence is triable exclusively bythe Court of Sessions. Since the committing Magistrate doesnot have wide discretionary powers to exercise at this stagenot exercising it would not cause any injustice to the parties;

(ii)Gradation in irregularity of cognizance order under Sections460 and 461-Under Sections 460 and 461, the order takingcognizance based on police report has been givena greaterstanding as compared to an order taking cognizance basedon information received from any person other than policeofficer or upon the own knowledge of the Magistrate, forthe specific purpose of deciding on the irregularity of theorder. The reason behind the gradation is because in theformer case, the Magistrate has material based on aninvestigation by the police to ground his decision which maybe absent when cognizance is taken based on informationby any other person. In this case, cognizance was takenbased on the SIT report. Therefore, the case squarely fallsunder Section 190(b) of CrPC which under Section 460,even if irregular would not vitiate the proceedings;

(iii)Objective of the MMDR Act: The appellants are accusedFof the commission of offences under the MMDR Actinvolving the export and transportation of minerals withoutpermit. Offences under the MMDR Act are environmentalcrimes. These crimes impact upon society at large.Theseoffences cause detriment to and affect the well-being ofthe entire community. Environmental crime is not confinedGwithin geographical or state limits. The impact ofenvironmental crime transcends borders and time.Environmental crime may or may not have an immediatelyidentifiable human victim but there can be no mistaking itsconsequence for the entire bio-system of which humanHbeings are an intrinsic, but not the only, element.

[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Environmental crime is in essence planetary crime – itaffects every component of the natural systems with whichthe planet has been endowed. They constitute our heritage;a heritage which is held in trust by the present for the future.Illegal mining denudes the eco-system of valuableresources. The destruction of the natural environment hasserious consequences for the present and the future. TheMMDR Act must hence be construed in this perspective.At one level, illegal mining deprives the state of its revenues.But the law is not merely revenue yielding or regulatingmeasure. The essence of the law is to protect human kindand every species whose existence depends on naturalresources from the destruction which is caused by rapaciousand unregulated mining. The offences which have beentaken into account by Parliament while enacting sub-sections(1) and (1A) of Section 4 intrinsically affect the environmentwhich, in turn, affects the existence of communities whodepend on the environment and of every species to whomit provides nurture and sustenance. It is because of the wide-ranging impact of such offences on the life of the communityand on the well-being of not only the present, but of thesucceeding generations, that principles such as theprecautionary principle, the public trust doctrine and theconcept of sustainable development have gained surejurisprudential foundation. In environmental crime, there maybe no single, immediate victim. The act which predicatesthe offence is crime against humanity. These crimes mightnot be perceived in the present to have immediate,foreseeable or quantifiable repercussions but there is nomistaking that they impact the life of future generations;

(iv)The Preamble of the Act at the time of its enactmentindicated that it is an “Act for regulation of mines and thedevelopment of minerals”. This was substituted by Act 38of 1999 to emphasise that the “Act provides for thedevelopment and regulation of mines and minerals”. Theamendment to the Preamble is indicative of the intent ofthe legislature that development and regulation must proceedhand-in-hand, and in order to reduce the increasingmagnitude of environmental crime, development needs to

be regulated and sustainable. Thus, when Parliamentamended the MMDR Act to include Section 30B in 2015for the constitution of Special Courts which would be deemedto be Courts of Session conferred with all requisite powers,the object and purpose of the legislative provision must beborne in mind. The ultimate object of the provision is toensure that violators are punished by speedy process oftrial before court duly constituted in that behalf; and

(v)The delay in the commencement of trial- The FirstInformation Report was registered on 9 October 2014 inthe first of the batch of cases in the present set of cases.The charge-sheet was submitted on 29 December 2015.Between December 2015 and March 2017, the accusedparticipated in the proceedings. On 30 December 2015, theSpecial Judge recorded that he had perused the final reportand that he was taking cognizance. Summons were directedto be issued to the accused. After cognizance was takenon 30 December 2015, several proceedings took placebefore 23[rd] Additional City Civil and Sessions Judge/SpecialJudge, Bengaluru City including on 16 January 2016 whensome of the accused were admitted to bail. On 17 March2017, arguments were addressed before the Special Judgeby the Special Public Prosecutor on the charges. The HighCourt was moved for quashing under Section 482 CrPC on20 March 2017 at that stage. Significantly in the proceedingsbefore the High Court, no ground of challenge wasaddressed on the basis of the submission (now urged beforethis Court) that in the absence of committal order by theMagistrate, the proceedings before the Special Judgesuffered for want of jurisdiction. The submission which hasbeen urged before this Court for the first time, purportedlyon the ground that pure question of law is involved, cannotefface the factual position that from the date of thesubmission of the charge sheet in 2015 until the filing of thequashing petition on 20 March 2017, the accused participatedin the proceedings before the Special Judge and raised noobjection at any time either before the Special Judge orbefore the High Court.Therefore, the challenge to theirregularity in taking cognizance was not made at the earliest.

Though it was made before the conclusion of the trial, thechallenge after two years would still amount to aconsiderable delay, when there were opportunities for it tohave been raised earlier.

C.3 Cognizance of the offence and not the offender

45. It is well settled principle of law that cognizance as envisagedin Section 190 of the CrPC is of the offence and not of the offender. Theexpression “cognizance of any offence” is consistently used in theprovisions of Sections 190, 191, 192 and 193[34].

46. Section 193 of the old CrPC Code (of 1898) stated that Courtof Session shall not take cognizance of any offence unless the ‘accusedhas been committed’ to it by the Magistrate. However, Section 193 ofthe CrPC 1973 states that cognizance of an offence shall be taken afterthe ‘casehas been committed’ to it by the Magistrate. comparison ofthe provisions in the Old and New Code is tabulated below:

(emphasis supplied)

47. In Kishun Singh v. State of Bihar[35], the question before theCourt was whether the Court of Sessions to which case has beencommitted to for trial by the Magistrate, can without recording evidence,summon person not named in the police report by exercise of its powerunder Section 319 CrPC. The two judge Bench held that when case iscommitted to the Court of Sessions by the Magistrate under Section 209

34 "As matter of fact, the expression “cognizance of any offence” is also used inSection 195, 196, 197, 198, 198A, 198B, 199. Chapter 15 of the CrPC which governscomplaints of Magistrates also emphasises the principle that cognizance is of an offence.The same principle, as we have seen earlier, is emphasised in Chapter 16 in whichSection 204(1) adverts to Magistrate “taking cognizance of an offence”.35 (1993) 2 SCC 16

Aon the ground that it is exclusively triable by it, the Sessions Court wouldhave the power to take cognizance of the offence.[36] It was thus heldthat since cognizance is taken of the offence and not the accused, if anymaterial suggests the complicity of other persons in the offence, theCourt of Sessions can summon such other persons. The court, by drawinga comparison between Section 193 of the Code of 1973 and the Code ofB1898, and on reading of Section 209 CrPC held that both the committaland cognizance is of the offence and not the accused/offender.[37] JusticeAM Ahmadi (as the learned Chief Justice then was) summarized theposition in law in the following observations:

“7. […] Section 190 of the Code sets out the different ways inCwhich Magistrate can take cognizance of an offence, that is tosay, take notice of an allegation disclosing commission of crimewith view to setting the law in motion to bring the offender tobook. Under this provision cognizance can be taken in three waysenumerated in clauses (a), (b) and (c) of the offence alleged toDhave been committed. The object is to ensure the safety of acitizen against the vagaries of the police by giving him the right toapproach the Magistrate directly if the police does not take actionor he has reason to believe that no such action will be taken bythe police. Even though the expression ‘take cognizance’ is notdefined, it is well settled by catena of decisions of this CourtEthat when the Magistrate takes notice of the accusations andapplies his mind to the allegations made in the complaint or policereport or information and on being satisfied that the allegations, ifproved, would constitute an offence decides to initiate judicialproceedings against the alleged offender he is said to have takenFcognizance of the offence. It is essential to bear in mind the factthat cognizance is in regard to the offence and not the offender.

It may immediately be noticed that under the old provision Courtof Session could not take cognizance of an offence as court ofG

36 Also see, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC492 (at 499, paragraphs 19 and 20); Fakhruddin Ahmad v. State of Uttaranchal, (2008)17 SCC 157 (at 163, paragraph 17)

37 In arriving at the above conclusion, this Court in Kishun Singh affirmed the judgmentof Full Bench of the Punjab High Court in SK Lutfur Rahman v. State:1985 PLJR 640:H1985 Cri LJ 1238(Pat HC) (FB)

original jurisdiction unless the accused was committed to itwhereas under the recast section as it presently stands theexpression the accused has been replaced by the words the case.As has been pointed out earlier, under Section 190 cognizancehas to be taken for the offence and not the offender; so alsounder Section 193 the emphasis now is to the committal of thecase and no more on the offender. So also Section 209 speaksof committing the case to the Court of Session. On conjointreading of these provisions it becomes clear that while under theold Code in view of the language of Section 193 unless an accusedwas committed to the Court of Session the said court could nottake cognizance of an offence as court of original jurisdiction;now under Section 193 as it presently stands once the case iscommitted the restriction disappears.”“16…Thus, on plain reading of Section 193, as it presently standsonce the case is committed to the Court of Session by Magistrateunder the Code, the restriction placed on the power of the Courtof Session to take cognizance of an offence as court of originaljurisdiction gets lifted. On the Magistrate committing the caseunder Section 209 to the Court of Session the bar of Section 193is lifted thereby investing the Court of Session complete andunfettered jurisdiction of the court of original jurisdiction to take

cognizance of the offence which would include the summoning ofthe person or persons whose complicity in the commission of thecrime can prima facie be gathered from the material available onrecord.”

48. In other words, upon the committal by the Magistrate, theCourt of Sessions is empowered to take cognizance of the whole of theincident constituting the offence. The Court of Sessions is thus investedwith the complete jurisdiction to summon any individual accused of thecrime. The above principles were reiterated in two judge Bench decisionin State of W.B. v. Mohd. Khalid[38]. Justice S Mohan speaking for theCourt observed:

“43.[…] Section 190 of the Code talks of cognizance of offencesby Magistrates. This expression has not been defined in the Code.In its broad and literal sense, it means taking notice of an offence.

AThis would include the intention of initiating judicial proceedingsagainst the offender in respect of that offence or taking steps tosee whether there is any basis for initiating judicial proceedings orfor other purposes. The word ‘cognizance’ indicates the pointwhen Magistrate or Judge first takes judicial notice of anoffence. It is entirely different thing from initiation of proceedings;Brather it is the condition precedent to the initiation of proceedingsby the Magistrate or the Judge. Cognizance is taken of cases andnot of persons.”

49. In Dharam Pal (supra), Constitution Bench was decidingon whether the Court of Sessions has the power under Section 193CCrPC to take cognizance of the offence and then summon other personsnot mentioned as accused in the police report. The issue was referred toa five-judge Bench in view of the conflicting decisions in Kishun Singh(supra) and Ranjit Singh v. State of Punjab[39]. As discussed above,while in Kishun Singh (supra),it was held that the Sessions Court heldDsuch power under Section 193 CrPC, it was held in Ranjit Singh(supra)that from the stage of committal till the Sessions Court reaches the stageindicated in Section 230 CrPC, the Court could not arraign any otherperson as the accused. Chief Justice Altamas Kabir, speaking for theConstitution Bench affirmed the view in Kishun Singh (supra) on theground that the Magistrate before whom the final report is submittedEhas ample powers to disagree with the report filed by the police underSection 173(2) and to proceed against the accused persons dehors thepolice report. However, if the interpretation in Ranjit Singh (supra)were to be followed, it would lead to an anomaly where the SessionsCourt would not have this power till the Section 319 stage is reached,Fwhich the Magistrate would otherwise have. In that context, theConstitution Bench observed:

“35. In our view, the Magistrate has role to play while committingthe case to the Court of Session upon taking cognizance on thepolice report submitted before him under Section 173(2) CrPC.GIn the event the Magistrate disagrees with the police report, hehas two choices. He may act on the basis of protest petition thatmay be filed, or he may, while disagreeing with the police report,issue process and summon the accused. Thereafter, if on beingsatisfied that case had been made out to proceed against the

persons named in column 2 of the report, proceed to try the saidpersons or if he was satisfied that case had been made outwhich was triable by the Court of Session, he may commit thecase to the Court of Session to proceed further in the matter.”

50. In RN Agarwal v. RC Bansal[40], Special Judge tookcognizance of the offences punishable under Sections 120-B, 420, 468and 471 IPC as well as Section 13(1)(d) of the Prevention of CorruptionAct. The Special Judge however, summoned the prosecution witnesses.The prosecution witnesses approached the High Court under Section482 CrPC seeking to quash the summons issued against them. The HighCourt quashed the summons order passed by the Special Judge. ThisCourt allowed the appeal holding that the Special Judge in view of Sections193 and 209, took cognizance of the offence and therefore had the powerto arraign other accused in the case based on the material availablebefore it at that stage.

51. It is evident from the discussion in Kishun Singh (supra) andDharam Pal (supra) that in view of the provisions of Section 193 CrPC,cognizance is taken of the offence and not the offender. Thus, theMagistrate or the Special Judge does not have the power to takecognizance of the accused. The purpose of taking cognizance of theoffence instead of the accused is because the crime is committed againstthe society at large. Therefore, the grievance of the State is against thecommission of the offence and not the offender. The offender as anactor is targeted in the criminal procedure to provide punishments so asto prevent or reduce the crime through different methods such asreformation, retribution and deterrence. Cognizance is thus taken againstthe offence and not the accused since the legislative intent is to preventcrime. The accused is means to reach the end of preventing andaddressing the commission of crime.

52. In the factual matrix before us, the Special Judge by an orderdated 30 December 2015 referred to all the relevant material beforehim, including the FIR and witness statements, before taking cognizance.The question that arises is whether merely because the cognizance ordermentions that cognizance is taken against the ‘accused’, the entireproceedings would be vitiated. The order taking cognizance inadvertentlymentioned that the Special Judge has taken cognizance against the

Aaccused instead of the offence. This would not vitiate the entireproceedings, particularly where material information on the commissionof the offence had been brought to the notice of and had been perusedby the Special Judge.

53. In order to prove that the irregularity vitiates the proceeding,Bthe accused must prove ‘failure of justice’ as prescribed under Section465 CrPC. In view of the discussion in the previous section on theapplicability of Section 465 CrPC (and the inability to prove failure ofjustice) to the cognizance order, the irregularity would not vitiate theproceedings. Moreover, bearing in mind the objective behind prescribingthat cognizance has to be taken of the offence and not the offender, aCmere change in the form of the cognizance order would not alter theeffect of the order for any injustice to be meted out.

C.4 Cognizance by the Special Court of offences under the

IPC

D54. The appellant had raised contention that even if the SpecialJudge had the power to take cognizance of the offence, he could onlyhave taken cognizance of offences under the MMDR Act and could nothave taken cognizance (and conduct trial) of the offences under theprovisions of IPC. For this purpose, the counsel for the appellant referredto Section 30B(1) of the MMDR Act which states that the StateEGovernment may for providing speedy trial of offences under Sections4(1) or Section 4(1A) of the MMDR Act constitute Special Courts.Section 30B(1) reads as follows:“30B. Constitution of Special Courts.¯(1) The State Governmentmay, for the purposes of providing speedy trial of offences forFcontravention of the provisions of sub-section (1) or sub-section(1A) of section 4, constitute, by notification, as many Special Courtsas may be necessary for such area or areas, as may be specifiedin the notification.”

Section 4(1) of the MMDR Act states that no person shallGundertake any reconnaissance, prospecting or mining operations withoutany license or permit. Section 4(1A) states that no person can transportor store material otherwise than in accordance with the provisions ofthis Act. Section 4(1) and (1A) of the Act readas follows:

“4. Prospecting or mining operations to be under licence orHlease.¯(1) [No person shall undertake any reconnaissance,

prospecting or mining operations in any area, except under and inaccordance with the terms and conditions of reconnaissancepermit or of prospecting licence or, as the case may be, of amining lease, granted under this Act and the rules madethereunder]:

Provided that nothing in this sub-section shall affect any prospectingor mining operations undertaken in any area in accordance withterms and conditions of prospecting licence or mining leasegranted before the commencement of this Act which is in forceat such commencement:

[Provided further that nothing in this sub-section shall apply toany prospecting operations undertaken by the Geological Surveyof India, the Indian Bureau of Mines, 6 [the Atomic MineralsDirectorate for Exploration and Research] of the Department ofAtomic Energy of the Central Government, the Directorates ofMining and Geology of any State Government (by whatever namecalled), and the Mineral Exploration Corporation Limited., aGovernment company within the meaning of 7 [clause (45) ofsection 2 of the Companies Act, 2013 (18 of 2013), and any suchentity that may be notified for this purpose by the CentralGovernment]:]

[Provided also that nothing in this sub-section shall apply to anymining lease (whether called mining lease mining concession orby any other name) in force immediately before thecommencement of this Act in the Union territory of Goa, Damanand Diu.]

[(1A) No person shall transport or store or cause to be transportedor stored any mineral otherwise than in accordance with theprovisions of this Act and the rules made thereunder.]”

55. It is contended by the appellant that the Special Courtestablished under statute can try offences under the IPC (or any offenceother than the offences under the statute) only if expressly provided. Tobuttress this argument, Section 4(3) of the PC Act, Section 14(1) of theNIA Act, and Section 28(2) of the Protection of Children from SexualOffences Act 2012[41] were referred to. All the three provisions expresslyprovide the Special Court with the power to try offences other than

41 "POCSO Act”

[2021] 11 S.C.R.

Athose offences specified in the Act. Section 4(3) of the PC Act reads asfollows:

“(3) When trying any case, special Judge may also try anyoffence, other than an offence specified in section 3, with whichthe accused may, under the Code of Criminal Procedure, 1973 (2Bof 1974), be charged at the same trial.”

(emphasis supplied)

Section 14 of the NIA Act read as follows:

“14. Powers of Special Courts with respect to otheroffences.—(1) When trying any offence, Special Court mayCalso try any other offence with which the accused may, underthe Code be charged, at the same trial if the offence isconnected with such other offence.

(2) If, in the course of any trial under this Act of any offence, it isfound that the accused person has committed any other offenceDunder this Act or under any other law, the Special Court mayconvict such person of such other offence and pass any sentenceor award punishment authorised by this Act or, as the case maybe, under such other law.”

(emphasis supplied)

ESection 28(2) of the POCSO Act provides the following:

“(2) While trying an offence under this Act, Special Courtshall also try an offence [other than the offence referred to insub-section (1)], with which the accused may, under the Code ofCriminal Procedure,1973 (2 of 1974) be charged at the same trial.”

(emphasis supplied)

56. In the case before us, the Special Judge took cognizance andissued summons against the appellants for offences under Sections 409,420 read with Section 120B IPC;Sections 21 and 23 read with Sections4(1), 4(1A) of the MMDR Act; and Rule 165 read with Rule 144 of theGKarnataka Forest Rules, 1969. According to the first schedule of theCrPC, the offences under Sections 409 and 420 are triable by theMagistrate of the First Class. Section 209 CrPC states that if it appearsto the Magistrate that the offence is triable exclusively by the Court ofSessions, then he shall commit the case to the Court of Session. Section2(hc) of the MMDR Act states that Special Court constituted underH

Section 30 B(1) of the Act is deemed to be the Court of Sessions. ASpecial Court designated under the MMDR Act is Court of Sessionswhich is exclusively vested with the power to try offences under theAct. While the offences under Sections 409 and 420 IPC are triable bythe Judicial Magistrate First Class[42], the issue is whether the offencesunder the IPC can be tried jointly with the offences under the MMDRAct by the Special Court.

C.4.1 Joint trial and express repeal

57. At this juncture, it is relevant to take note of Section 220 CrPC.Section 220 envisages situations when person shall be tried for multipleoffences at one trial which reads as follows:

“220. Trial for more than one offence.—(1) If, in one series ofacts so connected together as to form the same transaction, moreoffences than one are committed by the same person, he may becharged with, and tried at one trial for, every such offence.

(2) When person charged with one or more offences of criminalbreach of trust or dishonest misappropriation of property asprovided in sub-section (2) of section 212 or in sub-section (1) ofsection 219, is accused of committing, for the purpose of facilitatingor concealing the commission of that offence or those offences,one or more offences of falsification of accounts, he may becharged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two ormore separate definitions of any law in force for the time beingby which offences are defined or punished, the person accusedof them may be charged with, and tried at one trial for, each ofsuch offences.

(4) If several acts, of which one or more than one would by itselfor themselves constitute an offence, constitute when combined adifferent offence, the person accused of them may be chargedwith, and tried at one trial for the offence constituted by such actswhen combined, and for any offence constituted by any one, ormore, of such acts.

(5) Nothing contained in this section shall affect section 71 of theIndian Penal Code (45 of 1860).”

A58. Section 409 IPC deals with the offence of Criminal breach oftrust by public servant, banker, or agent, while Section 420 IPC dealswith cheating. Since both these offences are alleged to have beencommitted in the course of the same transaction as the offences underthe MMDR Act, the situation is squarely covered by sub-section (1) ofSection 220 of CrPC. It now needs to be determined if Section 220BCrPC can be applied to proceedings before the Special Court constitutedunder the MMDR Act.

59. Section 4(1) CrPC states that all offences under the IPC shallbe investigated and tried according to the provisions contained in theCrPC. Section 4(2) states that all offences under any other law shall beCinvestigated and tried according to the same provisions, subject to anyother enactment that regulates the manner of investigation and trial.Section 5 states that nothing in the Code shall affect any special law thatconfers power, and jurisdiction, unless there is specific provision to thecontrary. Section 30C of the MMDR Act stipulates that unless otherwiseDprovided by the Act, the CrPC shall apply to the proceedings before theSpecial Court. Section 30C reads as follows:

“30C. Special Courts to have powers of Court of Session.¯Saveas otherwise provided in this Act, the Code of CriminalProcedure, 1973 (2 of 1974), shall apply to the proceedingsEbefore the Special Court and for the purpose of the provisionsof this Act, the Special Court shall be deemed to be Court ofSession and shall have all powers of Court of Session and theperson conducting prosecution before the Special Court shall bedeemed to be public prosecutor.”

(emphasis supplied)

60. Therefore, on combined reading of Sections 4 and 5 of CrPCalong with Section 30C of the MMDR Act, it is apparent that theprocedure prescribed under the Code shall be applicable to proceedingsbefore the Special Court unless the MMDR Act provides anything toGthe contrary. These provisions incorporate the principle of express repeal– i.e., unless any provision of the CrPC is expressly repealed by theprovisions of the MMDR Act, the procedure prescribed under the CrPCwould apply to the proceedings before the Special Court. Provisions ofthe PC Act, POCSO Act and NIA Act which expressly provide that theSpecial Court may try offences under the statute along with other offencesH

is only clarificatory. It is settled law that while contextually interpretinga provision, reference to other statutes which are pari materia can bemade.[43 ]However, since the provisions in the similar statute on combinedtrial are only clarificatory, the reference to external aids offer no supportto the argument of the appellant.

61. It now needs to be determined if there is:

(i)an express provision in the MMDR Act that provides thatSection 220 CrPC shall not be applicable; and

(ii)if (i) is in negative, then whether the MMDR Act bynecessary implication excludes the application of SectionC220 CrPC.

62. Since there is no express provision that excludes the applicationof Section 220 CrPC, it needs to be examined if the MMDR Act has bynecessary implication excluded the application of Section 220 CrPC. Inthis context, it needs to be determined if Section 30B of the MMDR Actwhile establishing the Special Court for offences under Section 4 of theMMDR Act, by necessary implication excludes the application of Section220 CrPC.

C.4.2 Joint trial and implied repeal

63. The general rule of construction is that there is presumptionagainst repeal by implication because the legislature has full knowledgeof the existing law on the subject matter while enacting law. When arepealing provision is not specifically mentioned in the subsequent statute,there is presumption that the intention of the legislature was not torepeal the provision. The burden to prove that the subsequent enactmenthas impliedly repealed the provision of an earlier enactment is on theparty asserting the argument. This presumption against implied repeal isrebutted if the provision(s) of the subsequent Act are so inconsistent andrepugnant with the provision(s) of the earlier statute that the two provisionscannot ‘stand together’.[44] Therefore, the test to be applied for theconstruction of implied repeal is as follows: Whether the subsequentstatute (or provision in the subsequent statute) is inconsistent and

43 Harshad Mehta v. State of Maharashtra, (2010) 8 SCC 257

44 Harshad Mehta (n 40); Justice GP Singh, Principles of Statutory Interpretation (14thed. LexisNexis 2016) 737-738

Arepugnant with the earlier statute (or provision in the earlier statute)such that both the statutes (or provisions) cannot stand together. [45] Thetest when applied in the context of this case is whether Section 30B ofthe MMDR Act is inconsistent and repugnant to Section 220 CrPC thatboth the provisions cannot go hand in hand.

B64. This Court has in Municipal Council, Palai v. T.J Joseph[46]indicated that the test applied for determination of repugnancy underArticle 254 of the Indian Constitution maybe applied to determinerepugnancy in the context of implied repeal as well. Justice Mudholkarwriting for three judge Bench, followed the test that was laid down inDeep Chand v. State of Uttar Pradesh[47]:C“10. […] (i) Whether there is direct conflict between the twoprovisions;

(ii) Whether the legislature intended to lay down an exhaustivecode in respect of the subject-matter replacing the earlier law;

D(iii) Whether the two laws occupy the same field.”

65. In the decision in Harshad Mehta v. State of Maharashtra[48],the issue before this Court was whether the Special Court establishedunder the Special Court (Trial of Offences relating to Transactions inSecurities) Act 1992 has the power to grant pardon as under SectionsE306 and 307 CrPC[49]. Therefore, the question in essence was whetherSections 306 and 307 CrPC apply to the proceedings before the SpecialCourt constituted under the Special Court Act 1992. Section 9(2) of theSpecial Court Act 1992 stated that the provisions of the CrPC would beapplicable to the proceedings before the Special Court, unless the SpecialFCourt Act 1992 provides anything to the contrary. It was held by thethree judge Bench of this Court that there was no express provision (orinference by necessary implication that can be made) excluding the

45 Also see, State of Orissa v. M/s M.A. Tulloch, AIR 1964 SC 1284; Syndicate Bankv. Prabha D. Naik, (2001) 4 SCC 713; State of MP v. Kedia Leather & Liqour Limited,G(2003) 7 SCC 389; Lal Shah Baba Dargah Trust v. Magnum Developers, (2015) 17 SCC65;

46 AIR 1963 SC 1561.47 (1959) 2 SCR 848 (2010) 8 SCC 257

49 Section 306 and 307 CrPC deal with the tendor of pardon by the Court to anaccomplice on the condition of making full and complete disclosure of the circumstancesHof the offence to the best of his/her knowledge

applicability of Sections 306 and 307 CrPC to proceedings before theSpecial Court. One of the contentions raised by the counsel for theappellant was that similar earlier enactments have expressly granted thepower to grant pardon to the Special Court constituted under the Actand that when the legislature has deliberately omitted the inclusion ofthe provision, it would mean that the power was not intended to be granted.The counsel contended that the Special Court under the Act consists ofa Judge of the High Court, while Section 306 for the purpose of theprovision only enumerates categories of Magistrates. The Benchobserved that an express provision needs to be made in the subsequentspecific statute only when wider powers or no powers are intended tobe given:

“38. It is understandable that if powers wider than the onecontemplated by the Code are intended to be conferred, provisionto that effect will have to be made. It does not follow therefromthat in an altogether different statute, if no special provision ismade, an inference can be drawn that even where thepowers under the Code and not wide powers were intendedto be conferred, save and except where it is so statedspecifically, the effect of omission would be that the SpecialCourt will not have even similar powers as are exercisedby the ordinary criminal courts under the Code.”

(emphasis supplied)

Addressing the contention of the appellant that Section 306 usesthe term ‘Magistrate’, while the Special Court consists of High Courtjudges, it was held that the statute and the Code need to be harmoniouslyconstrued. On the argument that other statutes have an express provisionproviding the power to grant pardon, the court held that other statutesare an external aid of interpretation and can be relied on only when it isshown that the scheme of the two Acts is similar. The court in thisregard observed as follows:

“51. The Code has been incorporated in the Act by application ofthe doctrine of legislation by incorporation. The power to grantpardon has not been denied expressly or by necessary implication.As earlier stated after decision in the case of A.R. Antulay [(1984)2 SCC 500 (p. 527, para 27) : 1984 SCC (Cri) 277] it was notnecessary to make specific provision in the Act conferring poweron the Special Court to grant pardon at trial or pre-trial stage. The

ASpecial Court is court of original criminal jurisdiction and has allthe powers of such court under the Code, including those ofSections 306 to 308 of the Code, the same not having beenexcluded specifically or otherwise.

52. There is no provision in the Act which negates the power ofBthe Special Court to grant pardon. The Special Court has powerto grant pardon at any stage of the proceedings. The power underSection 307 cannot be denied merely because no commitment ofthe case is made to the Special Court. Learned Solicitor-General,in our view, rightly contends that the other statutes are only anexternal aid to the interpretation and to rely upon the omission ofCa provision which is contained in another different enactment, ithas to be shown that the two Acts are similar which is not theposition here. The scheme of the two Acts is substantially differentas has been earlier noticed by us. It is also evident from Fernandescase [AIR 1968 SC 594: (1968) 1 SCR 695 : 1968 Cri LJ 550] asDwell.”

C.4.2.1 Section 30B of the MMDR Act and Section 220

CrPC- The question of implied repeal

66. Section 30B of the MMDR Act provides for the constitutionof the Special Court for ‘speedy trial of offences for contravention ofEthe provisions’ of Section 4 of the Act. Does the fact that the SpecialCourt has jurisdiction to try offences under the MMDR Act oust thejurisdiction of the Special Court to try offences under any other law (inthis case the IPC). As has been noted above, the provisions of theCodemay be held to be impliedly repealed, only if there is ‘direct conflict’Fbetween the provisions such that it is not possible to harmoniouslyinterpret the provisions. It thus needs to be analysed whether Section30B of the MMDR Act and Section 220 CrPC can be harmoniouslyconstrued.

67. The Judicial Magistrate First Class is invested with the authorityGto try offences under Sections 409 and 420 IPC. On the other hand, theSessions Judge is appointed as Special Judge for the purposes of theMMDR Act. If the offences under the MMDR Act and the IPC aretried together by the Special Judge, there arises no anomaly, for it is nota case where judge placed lower in the hierarchy has been artificiallyvested with the power to try the offences under both the MMDR ActHand the Code. Additionally, if the offences are tried separately by different

fora though they arise out of the same transaction, there would be amultiplicity of proceedings and wastage of judicial time, and may resultin contradictory judgments. It is settled principle of law that aconstruction that permits hardship, inconvenience, injustice, absurdityand anomaly must be avoided. Section 30B of the MMDR Act andSection 220 CrPC can be harmoniously construed and such constructionfurthers justice. Therefore, Section 30B cannot be held to impliedly repealthe application of Section 220 CrPC to the proceedings before the SpecialCourt.

C.5 Cognizance order and non-application of mind

68. The counsel for the appellant has contended that the order ofthe Special Judge taking cognizance has not sufficiently demonstratedapplication of mind to the material placed before him. To substantiatethis contention, the appellant relied on the decisions in Pepsi FoodsLtd. v. Special Judicial Magistrate[50], Fakhruddin Ahmad v. Stateof Uttaranchal[51] Mehmood Ul Rehman v. Khazir MohammadTunda[52], Sunil Bharti Mittal v. CBI[53]and Ravindranatha Bajpe v.Bangalore Special Economic Zone Ltd.[54]. The respondent arguedthat this Court has made distinction on application of mind by the judgefor the purpose of taking cognizance based on police report on the onehand and private complaint under Section 200 CrPC on the other, andthat the requirement of demonstrable application of mind in the lattercase is higher. For this purpose, the counsel relied on this Court’s decisionsin Bhushan Kumar v. State (NCT of Delhi)[55] and State of Gujarat v.Afroz Mohammed Hasanafatta[56].

69. The decision of this Court in Pepsi Foods Ltd. (supra), aroseout of the institution of complaint filed against the appellants underSection 7 read with Section 16 of the Prevention of Food AdulterationAct 1964. The allegation in the complaint was that the appellants sold abottle of beverage which was adulterated. After recording primaryevidence, the Magistrate passed orders summoning the appellants. The

50 (1998) 5 SCC 74951 (2008) 17 SCC 157

52 (2015) 12 SCC 42053 (2015) 4 SCC 60954 Criminal Appeal Nos. 1047-1048/202155 (2012) 5 SCC 42456 (2019) 20 SCC 539

Aappellants instituted proceedings before the High Court under Section482 CrPC for quashing the summoning order and the proceedings. Itwas in this backdrop, that while adverting to the procedure envisaged inChapter XV of the CrPC more particularly the provisions of Section200, Justice DP Wadhwa speaking for two judge Bench held:

B“12. […] One of the modes by which court can take cognizanceof an offence is on filing of complaint containing facts whichconstitutes such offence. Magistrate taking cognizance of anoffence on complaint shall examine upon oath the complainantand the witnesses present, if any, and the substance of suchexamination shall be reduced to writing and shall be signed by theCcomplainant and the witnesses, and also by the Magistrate(Sections 190 and 200 of the Code).”

Having noticed that proceeding had been initiated on the basis ofa complaint, this Court held:

D“28. Summoning of an accused in criminal case is seriousmatter. Criminal law cannot be set into motion as matter ofcourse. It is not that the complainant has to bring only twowitnesses to support his allegations in the complaint to have thecriminal law set into motion. The order of the Magistratesummoning the accused must reflect that he has applied his mindEto the facts of the case and the law applicable thereto. He has toexamine the nature of allegations made in the complaint and theevidence both oral and documentary in support thereof and wouldthat be sufficient for the complainant to succeed in bringing chargehome to the accused. It is not that the Magistrate is silentFspectator at the time of recording of preliminary evidence beforesummoning of the accused. The Magistrate has to carefullyscrutinize the evidence brought on record and may even himselfput questions to the complainant and his witnesses to elicit answersto find out the truthfulness of the allegations or otherwise andthen examine if any offence is prima facie committed by all orGany of the accused.”

On the facts, the Court held that the allegations against theappellants did not establish any offence under Section 7 of the Preventionof Food Adulteration Act and there was no basis in the complaint tomake such allegation. Setting aside the order of the High Court, thisHCourt accordingly quashed the complaint. The genesis of the decision in

Pepsi Foods Ltd is founded on complaint made to the Magistrateupon which steps had been initiated pursuant to the provision of Section200 of the CrPC.

70. In Sunil Bharti Mittal (supra), the case before this Courtarose out of alleged irregularities in the grant of an additional Spectrumin 2002. The case was being monitored by this Court. The CBI registereda case and after completion of the investigation filed charge-sheet inthe court of the Special Judge. The CBI, among others, mentioned threetelecom companies as accused persons in respect of offences underSection 13(2) read with 13(1)(d) of the PC Act and allied offences.When the matter was taken up for the issuance of summons to theaccused persons, the Special Judge while recording satisfaction that therewas enough incriminating material to proceed against the accused namedin the charge-sheet also found that three individuals, namely, the CMD,MD and Director of the three telecom companies were an alter ego ofthe respective companies. While taking cognizance of the cases, summonswere issued not only to the accused in the charge-sheet but to theaforesaid three persons as well. Two of them moved this Court. JusticeA K Sikri, while speaking for the three judge Bench, held that beforetaking cognizance of an offence, the Magistrate should have applied hismind to the case to satisfy himself that the allegations would constitutean offence:“48. Sine qua non for taking cognizance of the offence is theapplication of mind by the Magistrate and his satisfaction that theallegations, if proved, would constitute an offence. It is, therefore,imperative that on complaint or on police report, the Magistrateis bound to consider the question as to whether the same disclosescommission of an offence and is required to form such an opinionin this respect. When he does so and decides to issue process, heshall be said to have taken cognizance. At the stage of takingcognizance, the only consideration before the court remains toconsider judiciously whether the material on which the prosecutionproposes to prosecute the accused brings out prima facie caseor not.”

Justice Sikri observed that while the Magistrate is empowered toissue process against person who has not been charge-sheeted, therehas to be sufficient material in the police report showing his involvement.The Court held that no such exercise was carried out by the Special

AJudge and in its absence, the order summoning the appellants could notbe sustained. The decision in Sunil Bharti Mittal (supra) arose out ofa police report but clearly involved situation where appellants had notbeen arraigned as accused in the charge-sheet. The Magistrate hadissued summons to them merely treating them to be an alter ego of thecompany. This Court held that it was wrong (and ‘reverse’) applicationBof the principle of alter ego and that the order summoning them couldnot be sustained.

71. In Mehmood Ul Rehman (supra), complaint was filed bythe Respondent under Section 500 of the Ranbir Penal Code (in parimateria to Section 500 of the IPC). The Magistrate passed the followingCorder:

“4. […] Perused the complaint, and the statements recorded. Inthe first instance of proceedings, let bail warrant to the tune of Rs15,000 be issued against the alleged accused persons, with directionto the accused persons to cause their appearance before this CourtDon 22-4-2007, to answer the material questions.”

The Respondent filed petition before the High Court seeking toquash the proceedings initiated by the Magistrate. The High Court rejectedthe petition. Before this Court, contention was raised that the Magistratehad not applied his mind to the complaint to form an opinion on whetherEthe allegations would constitute an offence. Relying on Pepsi FoodsLtd.(supra), it was observed that the Magistrate ought to have appliedhis mind to the allegations and must be satisfied that the facts allegedwould constitute an offence. The order of the Magistrate was set asideby this Court on the ground that the order did not indicate an applicationFof mind by the Magistrate. The facts in this case fall squarely withinSection 190(1)(a) CrPC since the Magistrate was only guided by thecomplaint before him. Moreover, Justice Kurian Joseph, writing for thetwo-judge Bench has clearly taken note of the difference between Section190(1)(a) and 190(1)(b):

G“21. Under Section 190(1)(b) CrPC, the Magistrate has theadvantage of police report and under Section 190(1)(c) CrPC,he has the information or knowledge of commission of an offence.But under Section 190(1)(a) CrPC, he has only complaint beforehim. The Code hence specifies that “a complaint of facts whichconstitute such offence”. Therefore, if the complaint, on the faceHof it, does not disclose the commission of any offence, the

Magistrate shall not take cognizance under Section 190(1)(a)CrPC. The complaint is simply to be rejected.”

72. In Fakruddin Ahmed (supra), complaint was lodged beforethe Judicial Magistrate alleging commission of offences under Sections420, 467, 468 and 471 IPC. The Magistrate directed the police to registerthe case and investigate it. The Magistrate thus, instead of following theprocedure laid down under Section 200 or 202 CrPC, ordered that thematter be investigated and report be submitted under Section 173(2)of the Code. Based on the police report, cognizance was taken by theMagistrate. two-judge Bench of this Court observed that the Magistratemust apply his mind before taking cognizance of the offence. However,no observation was made that the cognizance order based on policereport needs to be ‘well-reasoned’. On the facts of the case, the Courtheld that since the cognizance order was not placed before the HighCourt, it did not have the opportunity to review if the Magistrate hadapplied his mind while taking cognizance. The matter was thus remandedback to the High Court for it to peruse the documents and then decidethe Section 482 petition afresh.

73. It must be noted that the decisions in Pepsi Foods Ltd. (supra)and Mehmood Ul Rehman (supra) arose in the context of privatecomplaint. Though the decision in Sunil Bharti Mittal (supra) arosefrom police report, it is evident from the narration of facts in the earlierpart of this judgment that in that case, the charge-sheet had not namedthe Chief Executive Officers of the Telecom Companies as accused.The Magistrate, however, furnished the reason that the CEO was analter ego of the Telecom Company which, as this Court noted in itsjudgment was “reverse application” of the alter ego doctrine. Similarly,the cognizance order in Fakruddin Ahmed (supra)was based on policereport. However, this Court remanded the case back to the High Courtfor fresh consideration of the validity of the cognizance order and didnot review the Magistrate’s satisfaction before issuing the cognizanceorder. Therefore, none of the above judgments referred to support thecontention of the appellant. Though all the above judgments mentionthat the Magistrate needs to apply his mind to the materials placed beforehim before taking cognizance, they have been differentiated on factsfrom the present case as unlike the present case where cognizance wastaken based on the SIT report, in those cases cognizance was takenbased on complaint. The difference in the standard of proof forapplication of mind with reference to cognizance based on complaint

Aand police report has been briefly discussed in Mehmood Ul Rehman(supra) and Fakruddin Ahmed (supra). two-judge Bench of thisCourt in Afroz Mohammed Hasanfatta (supra) laid down the law onthe difference of the standard of review of the application of mind bythe Judge while taking cognizance based on police report and privatecomplaint.B

74. In Afroz Mohammed Hasanfatta (supra), complaint wasfiled by the Manager of Bank against Private Limited Companyalleging that in pursuance of conspiracy, the Company was importingrough and polished diamonds from the foreign market and selling themin the local market. On verification, the bills of entry were found to beCbogus. Based on the complaint, an FIR was registered for offencesunder Sections 420, 465, 467, 468, 471, 477A and 120B of the PenalCode. charge-sheet was submitted under Section 173 CrPC againsttwo persons and the respondent was referred to as suspect. Asupplementary charge-sheet was submitted inter alia against theDrespondent and based on it, cognizance was taken by the Magistrate.The High Court set aside the order of the Chief Judicial Magistratetaking cognizance. Justice Banumathi speaking for the two judge Benchdealt with the issue as to whether while taking cognizance of an offenceunder Section 190(1)(b) CrPC, the Court has to record reasons for itssatisfaction before the issuance of summons. Relying upon the decisionEin Pepsi Foods Ltd. (supra), it was urged by the accused that the orderfor the issuance of process without recording reasons was correctly setaside by the High Court. Moreover, it was urged that there was noapplication of mind by the Magistrate. While distinguishing the decisionin Pepsi Foods Ltd. (supra) on the ground that it related to taking ofFcognizance in complaint case, the court held since in case ofcognizance based on police report, the Magistrate has the advantageof perusing the materials, he is not required to record reasons:

“23. Insofar as taking cognizance based on the police report isconcerned, the Magistrate has the advantage of the charge-sheet,Gstatement of witnesses and other evidence collected by the policeduring the investigation. Investigating officer/SHO collects thenecessary evidence during the investigation conducted incompliance with the provisions of the Criminal Procedure Codeand in accordance with the rules of investigation. Evidence andmaterials so collected are sifted at the level of the investigatingHofficer and thereafter, charge-sheet was filed. In appropriate

cases, opinion of the Public Prosecutor is also obtained beforefiling the charge-sheet. The court thus has the advantage of thepolice report along with the materials placed before it by the police.Under Section 190(1)(b) CrPC, where the Magistrate hastaken cognizance of an offence upon police report andthe Magistrate is satisfied that there is sufficient groundfor proceeding, the Magistrate directs issuance of process.In case of taking cognizance of an offence based upon thepolice report, the Magistrate is not required to recordreasons for issuing the process. In cases instituted on apolice report, the Magistrate is only required to pass anorder issuing summons to the accused. Such an order ofissuing summons to the accused is based upon satisfaction of theMagistrate considering the police report and other documents andsatisfying himself that there is sufficient ground for proceedingagainst the accused. In case based upon the police report, at thestage of issuing the summons to the accused, the Magistrate isnot required to record any reason. In case, if the charge-sheet isbarred by law or where there is lack of jurisdiction or when thecharge-sheet is rejected or not taken on file, then the Magistrateis required to record his reasons for rejection of the charge-sheetand for not taking it on file.”

(emphasis supplied)

75. The Special Judge, it must be noted, took cognizance on thebasis of report submitted under Section 173 CrPC and not on the basisof private complaint. Therefore, the case is squarely covered by thedecision in Afroz Mohammed Hasanfatta (supra).The Special Judgetook note of the FIR, the witness statements, and connected documentsbefore taking cognizance of the offence. In this backdrop, it would befar-fetched to fault the order of the Special Judge on the ground that itdoes not adduce detailed reasons for taking cognizance or that it doesnot indicate that an application of mind. In the facts of this case, therefore,the order taking cognizance is not erroneous.

C.6 ‘Authorised person’ and Section 22 of MMDR Act

76. Section 22 of the MMDR Act stipulates that no Court shalltake cognizance of any offence punishable under this Act or Rules, exceptupon complaint made in writing by person authorised on that behalfby the Central or the State Government. It has been contended by the

Aappellant that before the Special Court (Sessions Court) took cognizanceof the offence, no complaint was filed by the authorised person.

77. In State (NCT of Delhi) v. Sanjay[57], the principal questionwhich was formulated for the decision of two judge Bench was whetherthe Magistrate has the power to take cognizance of the offence upon aBpolice report without complaint from the authorised person under Section22 of the MMDR Act. Justice MY Eqbal, delivering the judgment forthe two-judge Bench, held that Section 22 only bars the prosecution andcognizance of offences for contravention of Section 4 of the MMDRAct without written complaint and not for offences under the provisionsof the IPC. The court also noted the object and policy underlying theCMMDR Act in the context of environmental protection. The Courtobserved:

“62. Sub-section (1-A) of Section 4 of the MMDR Act puts arestriction in transporting and storing any mineral otherwise thanin accordance with the provisions of the Act and the Rules madeDthereunder. In other words no person will do mining activity withouta valid lease or licence. Section 21 is penal provision accordingto which if person contravenes the provisions of sub-section (1-A) of Section 4, he shall be prosecuted and punished in the mannerand procedure provided in the Act. Sub-section (6) has beenEinserted in Section 4 by amendment making the offence cognizablenotwithstanding anything contained in the Code of CriminalProcedure, 1973. Section 22 of the Act puts restriction on thecourt to take cognizance of any offence punishable under the Actor any Rule made thereunder except upon complaint made by aperson authorised in this behalf. It is very important to note thatFSection 21 does not begin with non obstante clause. Instead ofthe words “notwithstanding anything contained in any law for thetime being in force no court shall take cognizance….”, the sectionbegins with the words “no court shall take cognizance of anyoffence.

70. There cannot be any dispute with regard to restrictions imposedunder the MMDR Act and remedy provided therein. In any case,where there is mining activity by any person in contravention of

the provisions of Section 4 and other sections of the Act, the officerempowered and authorised under the Act shall exercise all thepowers including making complaint before the JurisdictionalMagistrate. It is also not in dispute that the Magistrate shall insuch cases take cognizance on the basis of the complaint filedbefore it by duly authorised officer. In case of breach andviolation of Section 4 and other provisions of the Act, the policeofficer cannot insist the Magistrate for taking cognizance underthe Act on the basis of the record submitted by the police allegingcontravention of the said Act. In other words, the prohibitioncontained in Section 22 of the Act against prosecution of personexcept on complaint made by the officer is attracted only whensuch person is sought to be prosecuted for contravention of Section4 of the Act and not for any act or omission which constitutes anoffence under the Penal Code.”

In view of the above discussion, the Court held: -

(i)The ingredients constituting an offence under the MMDRAct and the ingredients of the offences under the IPC aredistinct; and

(ii)For the commission of an offence under the IPC, on receiptof police report, the Magistrate having jurisdiction cantake cognizance without awaiting complaint by theauthorized officer. complaint is required in terms of Section22 only for taking cognizance in respect of violation ofthe provisions of the MMDR Act.

78. In Kanwar Pal Singh v. The State of Uttar Pradesh[58], atwo judge Bench has followed the earlier decision in Sanjay (supra). InJayant v. The State of Madhya Pradesh[59], the appeal before thisCourt arose from decision of the High Court rejecting the applicationunder Section 482 CrPC for quashing FIRs alleging the commission ofoffences under Sections 379 and 414 IPC, Sections 4/21 of the MMDRAct and Rule 18 of the M.P. Minerals (Prevention of illegal Mining,Transportation and Storage) Rules, 2006. The JMFC, taking note of theinformation and the decision of this Court in Sanjay (supra) exercisedpowers under Section 156(3) CrPC and directed the registration of

58 (2020) 14 SCC 33159 (2021) 2 SCC 670

Acriminal case for investigation. FIRs were registered on the basis of theorder passed by the Magistrate. The High Court was moved underSection 482 CrPC for quashing the FIRs on the basis of the bar containedin Section 22 of the MMDR Act. The petitions for quashing weredismissed on the basis of the decision in Sanjay (supra). After advertingto the decision in Sanjay (supra), Justice MR Shah, speaking for two-Bjudge Bench of this Court, noted that the prohibition contained in Section22 of the MMDR Act against the prosecution of person except on awritten complaint of the authorised officer is attracted only when theprosecution is for contravention of Section 4 of the MMDR Act andwould not apply in respect of an act or omission which constitutes anCoffence under Penal Code. The court observed that the bar under Section22 of the Act kicks in with regard to the offence under Section 4 of theMMDR Act only when the Magistrate purports to take cognizance ofthe offence and not when the Magistrate orders further investigationunder Section 156(3) CrPC. Referring complaint for investigation underSection 156(3) would be at the pre-cognizance stage. Justice M R ShahDobserved: -“16…Therefore, when an order is passed by the Magistrate forinvestigation to be made by the police under Section 156(3) of theCode, which the learned Magistrate did in the instant case, whensuch an order is made the police is obliged to investigate the caseEand submit report under Section 173(2) of the Code. Thatthereafter the investigating officer is required to send report tothe authorised officer and thereafter as envisaged under Section22 of the MMDR Act the authorised officer as mentioned inSection 22 of the MMDR Act may file the complaint before theFlearned Magistrate along with the report submitted by theinvestigating officer and at that stage the question with respect totaking cognizance by the learned Magistrate would arise.”

The conclusions which were arrived at by the Court were asfollows:G“21.1. That the learned Magistrate can in exercise of powers underSection 156(3) of the Code order/direct the In-charge/SHO ofthe police station concerned to lodge/register crime case/FIR evenfor the offences under the MMDR Act and the Rules madethereunder and at this stage the bar under Section 22 of theMMDR Act shall not be attracted.H

21.2. The bar under Section 22 of the MMDR Act shall beattracted only when the learned Magistrate takes cognizance ofthe offences under the MMDR Act and the Rules made thereunderand orders issuance of process/summons for the offences underthe MMDR Act and the Rules made thereunder.

21.3. For commission of the offence under IPC, on receipt of thepolice report, the Magistrate having jurisdiction can take cognizanceof the said offence without awaiting the receipt of complaint thatmay be filed by the authorised officer for taking cognizance inrespect of violation of various provisions of the MMDR Act andthe Rules made thereunder.

21.4. That in respect of violation of various provisions of theMMDR Act and the Rules made thereunder, when Magistratepasses an order under Section 156(3) of the Code and directs theIn-charge/SHO of the police station concerned to register/lodgethe crime case/FIR in respect of the violation of various provisionsof the Act and the Rules made thereunder and thereafter afterinvestigation the In-charge of the police station/investigating officerconcerned submits report, the same can be sent to the Magistrateconcerned as well as to the authorised officer concerned asmentioned in Section 22 of the MMDR Act and thereafter theauthorised officer concerned may file the complaint before thelearned Magistrate along with the report submitted by theinvestigating officer concerned and thereafter it will be open forthe learned Magistrate to take cognizance after following dueprocedure, issue process/summons in respect of the violations ofthe various provisions of the MMDR Act and the Rules madethereunder and at that stage it can be said that cognizance hasbeen taken by the learned Magistrate.

21.5. In case where the violator is permitted to compound theoffences on payment of penalty as per sub-section (1) of Section23-A, considering sub-section (2) of Section 23-A of the MMDRAct, there shall not be any proceedings or further proceedingsagainst the offender in respect of the offences punishable underthe MMDR Act or any Rules made thereunder so compounded.However, the bar under sub-section (2) of Section 23-A shall notaffect any proceedings for the offences under IPC, such as,Sections 379 and 414 IPC and the same shall be proceeded withfurther.”

A79. The Government of Karnataka issued notification on 21January 2014 in exercise of powers under Sections 21(3), 21(4) and 22of the MMDR Act 1957 and Rules 43(3) and 46 of the Karnataka MinorMineral Concession Rules 1994. The notification authorized officers/authorities for the purpose of Section 22. The text of the authorization isextracted below:

BCDEFG

(emphasis supplied)

80. The Government of Karnataka issued notification on 29May 2014 declaring that the Office of the Inspector General of Police,HSpecial Investigation Team, Karnataka Lokayukta shall be ‘police

station’ for the purpose of Section 2(s) and shall have jurisdictionthroughout the State of Karnataka for offences related to the illegalmining of minerals. The FIR was filed by the SIT, Lokayukta pursuantto the Order of this Court dated 16 September 2013 and was signed bythe Sub-inspector of Police, Karnataka Lokayukta. On reading of thenotification dated 29 May 2014, it is evident that the SIT has thejurisdiction throughout Karnataka in relation to mining offences. S.No.13 of the Notification dated 21 January 2014 authorizes the ‘Sub-inspectorof Police’ within its jurisdiction for the purpose of Section 22 of theMMDR Act. Therefore, on combined reading of both the notifications,it is clear as day light that the complaint filed by SIT and signed by theSub-Inspector of Police has complied with Section 22 of the MMDRAct.

C.7 Vicarious liability and Section 23 of MMDR Act

81. A-1 submitted that the charge-sheet does not ascribe any roleto A-1 and hence the process initiated against him must be quashed. Theappellants in support of their argument relied on Sunil Bharati Mittal(supra), Shiva Kumar Jatia v. NCT of Delhi[60], Sunil Sethi v. Stateof Andhra Pradesh[61] and Ravindranatha Bajpe v. MangaloreSpecial Economic Zone Ltd.[62]In Sunil Bharati Mittal (supra), athree-judge Bench of this Court observed that the general rule is thatcriminal intent of group of people who undertake business can beimputed to the Company but not the other way around. Only twoexceptions were provided to this general rule: (i) when the individual hasperpetuated the commission of offence and there is sufficient evidenceon the active role of the individual; and (ii) the statute expresslyincorporates the principle of vicarious liability. Justice Sikri writing for athree-judge Bench observed:

“43. Thus, an individual who has perpetrated the commission ofan offence on behalf of company can be made an accused,along with the company, if there is sufficient evidence of his activerole coupled with criminal intent. Second situation in which hecan be implicated is in those cases where the statutory regimeitself attracts the doctrine of vicarious liability, by specificallyincorporating such provision.

60 (2019) 17 SCC 19361 (2020) 3 SCC 24062 2021 SCC OnLine 806

ABC

DEF

A44. When the company is the offender, vicarious liability of theDirectors cannot be imputed automatically, in the absence of anystatutory provision to this effect. One such example is Section141 of the Negotiable Instruments Act, 1881. In AneetaHada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd.,(2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri)B241] , the Court noted that if group of persons that guide thebusiness of the company have the criminal intent, that would beimputed to the body corporate and it is in this backdrop, Section141 of the Negotiable Instruments Act has to be understood. Sucha position is, therefore, because of statutory intendment making itCa deeming fiction. Here also, the principle of “alter ego”, wasapplied only in one direction, namely, where group of personsthat guide the business had criminal intent, that is to be imputed tothe body corporate and not the vice versa. Otherwise, there hasto be specific act attributed to the Director or any other personallegedly in control and management of the company, to the effectDthat such person was responsible for the acts committed by oron behalf of the company.”

Shiva Kumar Jatia (supra), Sunil Sethi (supra) andRavindranatha Bajpe (supra) also rely on this observation made inSunil Bharati Mittal (supra).E

82. Section 23(1) of the MMDR Act stipulates that where theoffence has been committed by company, every person who at thetime of the commission of the offence was in-charge of and responsiblefor the conduct of business shall be deemed to be guilty of the offence.The proviso stipulates that nothing contained in sub-section (1) shall renderFsuch person liable to punishment, if he proves that the offence wascommitted without his knowledge or that he exercised all due diligenceof preventing the commission of the offence.

83. In SMS Pharmaceuticals v. Neeta Bhalla[63], three-judgeBench while construing the provisions of Section 141 of the NegotiableGInstruments Act 1881, which are in pari materia with Section 23 of theMMDR Act has noted that the position of Managing Director or aJoint Managing Director of company is distinct since persons occupyingthat position are in charge of and responsible for the conduct of thebusiness. It was observed that though there is general presumption

that the Managing Director and Joint Managing Director are responsiblefor the criminal act of the company, the director will not be held liable ifhe was not responsible for the conduct of the company at the time ofcommission of the offence. The Court observed:

“9. The position of managing director or joint managing directorin company may be different. These persons, as the designationof their office suggests, are in charge of company and areresponsible for the conduct of the business of the company. Inorder to escape liability such persons may have to bring their casewithin the proviso to Section 141(1), that is, they will have to provethat when the offence was committed they had no knowledge ofthe offence or that they exercised all due diligence to prevent thecommission of the offence.

Every person connected with the company shall not fall withinthe ambit of the provision. It is only those persons who were incharge of and responsible for the conduct of business of thecompany at the time of commission of an offence, who will beliable for criminal action. It follows from this that if director of acompany who was not in charge of and was not responsible forthe conduct of the business of the company at the relevant time,will not be liable under the provision. The liability arises frombeing in charge of and responsible for the conduct of businessof the company at the relevant time when the offence wascommitted and not on the basis of merely holding designationor office in company. Conversely, person not holding anyoffice or designation in company may be liable if he satisfies themain requirement of being in charge of and responsible for theconduct of business of company at the relevant time.”

(emphasis supplied)

The same principle has been followed by Bench of two judgesin Mainuddin Abdul Sattar Shaikh v. Vijay Salvi[64] :

“12. The respondent has adduced the argument that in thecomplaint the appellant has not taken the averment that the accusedwas the person in charge of and responsible for the affairs of theCompany. However, as the respondent was the Managing Director

Aof M/s Salvi Infrastructure (P) Ltd. and sole proprietor of M/sSalvi Builders and Developers, there is no need of specificaverment on the point. This Court has held in National SmallIndustries Corpn. Ltd. v. Harmeet Singh Paintal [(2010) 3 SCC330 : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri) 1113] , asfollows : (SCC p. 346, para 39)B“39. (v) If the accused is Managing Director or JointManaging Director then it is not necessary to make specificaverment in the complaint and by virtue of their position they areliable to be proceeded with.”C84. The test to determine if the Managing Director must be chargedfor the offence committed by the Company is to determine if the conditionsin Section 23 of the MMDR Act have been fulfilled i.e., whether theindividual was in-charge of and responsible for the affairs of the companyduring the commission of the offence. In view of the above decisions,the submissions which has been urged on behalf of the appellant cannotDbe acceded to. The determination of whether the conditions stipulated inSection 23 of the MMDR Act have been fulfilled is matter of trial.Moreover, it is evident that the charge sheet, as matter of fact, ascribesa role to A-1 and A-2 for the payment of transportation. Therefore,there is prima facie case against A-1, which is sufficient to arraignEhim as an accused at this stage.

D. The Conclusion

85. In view of the discussion above, we summarise our findingsbelow:

F(i)The Special Court does not have, in the absence of aspecific provision to that effect, the power to take cognizanceof an offence under the MMDR Act without the case beingcommitted to it by the Magistrate under Section 209 CrPC.The order of the Special Judge dated 30 December 2015taking cognizance is therefore irregular;G

(ii)The objective of Section 465 is to prevent the delay in thecommencement and completion of trial. Section 465 CrPCis applicable to interlocutory orders such as an order takingcognizance and summons order as well. Therefore, even ifthe order taking cognizance was irregular, it would not vitiateHthe proceedings in view of Section 465 CrPC;

(iii)The decision in Gangula Ashok (supra) was distinguishedAin Rattiram (supra) based on the stage of trial. Thisdifferentiation based on the stage of trial must be read withreference to Section 465(2) CrPC. Section 465(2) does notindicate that it only covers challenges to pre-trial ordersafter the conclusion of the trial. The cardinal principle thatBguides Section 465(2) CrPC is that the challenge to anirregular order must be urged at the earliest. Whiledetermining if there was failure of justice, the Courts oughtto address it with reference to the stage of challenge, theseriousness of the offence and the apparent intention toprolong proceedings, among others;C

(iv)In the instant case, the cognizance order was challengedby the appellant two years after cognizance was taken. Noreason was given to explain the inordinate delay. Moreover,in view of the diminished role of the committal court underSection 209 of the Code of 1973 as compared to the role ofthe committal court under the erstwhile Code of 1898, thegradation of irregularity in cognizance order made inSections 460 and 461 and the seriousness of the offence,no failure of justice has been demonstrated;

(v)It is settled principle of law that cognizance is taken ofthe offence and not the offender. However, the cognizanceorder indicates that the Special Judge has perused all therelevant material relating to the case before cognizance wastaken. The change in the form of the order would not alterits effect. Therefore, no ‘failure of justice’ under Section465 CrPC is proved. This irregularity would thus not vitiatethe proceedings in view of Section 465 CrPC;

(vi)The Special Court has the power to take cognizance ofoffences under MMDR Act and conduct joint trial withother offences if permissible under Section 220 CrPC. Thereis no express provision in the MMDR Act which indicatesthat Section 220 CrPC does not apply to proceedings underthe MMDR Act;

(vii)Section 30B of the MMDR Act does not impliedly repealSection 220 CrPC. Both the provisions can be readharmoniously and such an interpretation furthers justice and

1058SUPREME COURT REPORTS

Aprevents hardship since it prevents multiplicity ofproceedings;

(viii) Since cognizance was taken by the Special Judge based ona police report and not private complaint, it is not obligatoryfor the Special Judge to issue fully reasoned order if itBotherwise appears that the Special Judge has applied hismind to the material;

(ix)A combined reading of the notifications dated 29 May 2014and 21 January 2014 indicate that the Sub-Inspector ofLokayukta is an authorized person for the purpose of SectionC22 of the MMDR Act. The FIR that was filed to overcomethe bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information wasgiven by the SIT. Therefore, the respondent has compliedwith Section 22 of the MMDR Act; and

D(x)The question of whether A-1 was in-charge of andresponsible for the affairs of the company during thecommission of the alleged offence as required under theproviso to Section 23(1) of the MMDR Act is matter fortrial. There appears to be prima facie case against A-1,which is sufficient to arraign him as an accused at this stage.

E86. For the reasons above, we find no merit in the appeals. Theappeals shall accordingly stand dismissed.

87. Pending application(s), if any, shall stand disposed of.

FAnkit Gyan

Appeals dismissed.