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2021 (11) TMI 1040 - SUPREME COURTLarge-scale illegal mining and transportation of iron ore - illegal encroachment in forest areas for the purpose of illegal mining - Section 23 of the MMDR Act - HELD THAT:- The following conclusion is reached:- (i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate Under Section 209 Code of Criminal Procedure. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular; (ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 Code of Criminal Procedure is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 Code of Criminal Procedure; (iii) The decision in Gangula Ashok [2000 (1) TMI 975 - SUPREME COURT] was distinguished in Rattiram [2012 (2) TMI 643 - SUPREME COURT] based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) Code of Criminal Procedure. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) Code of Criminal Procedure is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others; (iv) In the instant case, the cognizance order was challenged by the Appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court Under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated; (v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' Under Section 465 Code of Criminal Procedure is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 Code of Criminal Procedure; (vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible Under Section 220 Code of Criminal Procedure. There is no express provision in the MMDR Act which indicates that Section 220 Code of Criminal Procedure does not apply to proceedings under the MMDR Act; (vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 Code of Criminal Procedure. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings; (viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material; (ix) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar Under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the Respondent has complied with Section 22 Code of Criminal Procedure; and (x) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an Accused at this stage. The appeal is dismissed.
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