TMI Blog2021 (11) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n H Parekh, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Bina Madhavan, Adv., Mr. L.M. Ch8idanandayya, Adv., Ms. Akanksha Mehra, Adv., M/. Lawyer S Knit Co., Mr. Prabhar Kumar Rai, Adv., Mr. Nitesh Bhandari, Adv., Mr. Shourajeet Chakravarthy, Adv., Mr. Vinit Kumar, Adv., Mr. Naveen Kumar, AOR, Mr. Siddhartha Dave, Sr. Adv., Mr. Siddharth Garg, Adv., Ms. Devanshi Singh, Adv., Mr. Himanshu Chaubey, AOR For the Respondent : Mr. Nikhil Goel, AAG, Mr. V.N. Raghupathy, AOR, Mr. Ashutosh Ghade, Adv., Mr. Vinay Mathew, Adv. JUDGMENT Dr. D.Y. Chandrachud, J. Contents A. The Facts B. The Submissions C. The Analysis C.1 The power to take cognizance C.2 Special Court's power to take cognizance C.2.1 Section 465 Code of Criminal Procedure and interlocutory orders C 2.2 Section 465 Code of Criminal Procedure and failure of Justice C.3 Cognizance of the offence and not the offender C.4 Cognizance by the Special Court of offences under the Indian Penal Code C.4.1 Joint trial and express repeal C.4.2 Joint trial and implied repeal C.5 Cognizance order and non-application of mind C.6 'Authorised pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass. Acting in conspiracy, the Accused are alleged to have caused a loss of ₹ 3,27,83,379/- to the state exchequer. 5. Persistent complaints were made on large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. Samaj Parivartna Samudaya filed a Petition Writ Petition (Civil) No. 562/2009 Under Article 32 before this Court regarding illegal mining in the forest areas in Andhra Pradesh and Karnataka. The Central Empowered Committee CEC , pursuant to an order of this Court dated 19 November 2010 submitted a report on 7 January, 2011 regarding six mining leases in the Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This Court by an order dated 25 February 2011 directed the CEC to submit its report in respect of the allegations of illegal mining in Karnataka. Pursuant to the order, the CEC filed five reports on illegal mining. Following the submission of the report of the CEC dated 3 February 2012 raising concerns over illegal mining, transportation, sale and export of iron ore in the districts of Bellary, Chitradurga and Tumkur, directions were issued by his Court on 16 September 2013 for an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby declare that with effect from the date of publication of this notification in the Official Gazette, the office of Inspector General of Police, Special Investigation Team, Karnataka Lokayukta, Bangalore shall be a Police Station for the purpose of the said Clause with jurisdiction throughout the State of Karnataka and shall have powers and jurisdiction in respect of the offences of illegal mining of minerals and minor minerals as defined Under Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (Central Act 67 of 1957) committed under the provisions of the following Acts 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 committed either in furtherance of or in violation of the above mentioned Acts 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the High Court Under Section 482 Code of Criminal Procedure for quashing the criminal proceedings initiated against the Appellants. The Appellants sought the quashing of the criminal proceedings on the following grounds: (i) A-1 was not involved in the alleged illegal transaction. He was residing in Indonesia at the relevant point of time. The affairs of the company were managed by A-2; (ii) According to the agreement entered into for the transaction, the responsibility of obtaining the dispatch permit from the concerned Department of Mines and Geology and to transport the same was on the A-3. Therefore, A-2 could not be prosecuted for procuring iron ore without the permit; (iii) The order of the Special Judge taking cognizance does not mention the offences for which cognizance was taken. Therefore, the cognizance order reflects non-application of mind; and (iv) The Special Judge did not have the power to take cognizance of offences under the MMDR Act without a complaint by the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o challenge the judgment of the High Court. In the appeal arising out of the companion SLP (Criminal) No. 1923/2021, the Appellant is the proprietor of a concern by the name of TBS Logistics which is involved in the business of buying, selling and exporting iron ore. The case of the prosecution is that the Appellant entered into a criminal conspiracy with other Accused persons, for purchasing and selling extracted iron ore illegally without mining dispatch permits and the payment of charges to the Mining and Geological Departments and the Forest Department. On 9 October 2014, Crime case No. 23/2014 was registered with the police investigation team, Karnataka Lokayukta Bengaluru for offences punishable Under Sections 409, 420 and 471 read with 120B of the Indian Penal Code, Sections 21 and (4)(1)(A) of the MMDR Act, 1957 and Rules 144 and 165 of the Karnataka Forest Rules, 1959. A charge sheet was submitted on 24 November 2015. The Special Judge took cognizance on 30 December 2015. The Appellant instituted a petition Under Section 482 Code of Criminal Procedure for quashing the criminal proceedings. The petition was dismissed by the High Court on 18 November 2020 for the following r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure bars the Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by the Magistrate under the Code. The only exception is if it has been otherwise expressly provided by the Code of Criminal Procedure or by any other law for the time being in force. There is no specific provision in the MMDR Act or the Code empowering the Court of Session to take cognizance without an order of committal by the Magistrate; and (v) Section 22 of the MMDR Act stipulates that no Court shall take cognizance of any offence punishable under the Act or any Rules made under it except upon a written complaint made by a person authorized in this behalf by the Central Government or the State Government. There was no authorization for the Inspector of the Lokayukta Police and hence there has been a violation of the provisions of Section 22. 17. The submissions urged on behalf of the Appellants have been opposed by the State of Karnataka. Mr. Nikhil Goel has urged the following submissions before this Court: (i) A-1 was undisputedly the Managing Director of Canara Overseas Private Limited during the period when the offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any significance unless a failure of justice is shown. In any event, in the present litigation, the Appellants moved the High Court in 2017 in order to challenge the cognizance order of 2015. In the meantime, submissions on the framing of charges were addressed before the Special Judge. There is absolutely no material to indicate that a failure of justice has been occasioned due to the Magistrate not passing an order of committal; (iv) There is no merit in the submission that there was an absence of delegation of power Under Section 22 of the MMDR Act to file a complaint Under Section 21(i): (a) The Government of Karnataka had issued a specific notification for the purpose of Section 22 on 21 January 2014, authorizing among others, the police inspector having jurisdiction over the place; and (b) The High Court has recorded that a complaint was filed Under Section 22 read with Section 21(i) of the MMDR Act and that it contains allegations identical to those contained in the charge sheet and SIT report pertaining to offences under the Act. C. The Analysis 18. Having adverted to the submissions of the parties, we shall now turn to the issues raised before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that when a case is instituted either on a police report or otherwise, and it appears to the Magistrate that the offence is exclusively triable by the Sessions Court, he shall commit the case to the Court of Session. Section 209 reads as follows: 209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the Accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the Accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the Accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. C.2 Special C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Court was directed on committal to frame appropriate charges. The order of the High Court was questioned in appeal before this Court. The first issue which arose was whether the Special Judge could have taken cognizance 'straightway without the case being committed' by the Magistrate. The Special Court under the SC and ST Act was a Court of Sessions, having regard to Section 14 of the Act. After setting out the provision of Section 14 For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act ., Justice K.T. Thomas observed that the Special Court under the Act was constituted only for the 'speedy trial' of offences which is different from an 'inquiry'. In this context, it was observed: 8. ...So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word trial is not defined either in the Code or in the Act it is clearly distinguishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially a court of Sessions and it cannot take cognizance of the offence without the case being committed to it by the Magistrate in accordance with the provisions of the Code of Criminal Procedure. In other words, the complaint or a chargesheet could not straightway be laid down before the Special Court. In this backdrop, this Court upheld the view of the High Court setting aside the proceedings initiated by the Special Court. 27. In State of MP v. Bhooraji (2001) 7 SCC 679, the Appellant was convicted inter alia of an offence punishable Under Section 302/149 of the Indian Penal Code read with Section 3(2) of the SC and ST Act. Since the charge sheet was filed Under Section 3(2) of the SC and St Act together with offences under the Indian Penal Code, the Appellants were tried by a Special Judge constituted under the SC and ST Act. The Appellant was convicted. An appeal was filed before the High Court against the conviction. During the pendency of the appeal, this Court decided Gangula Ashok (supra). An interlocutory application was filed by the Appellants seeking the trial proceedings to be quashed since the Special Court took cognizance without the case being committed to it by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 465 would only be applicable where the order has been passed by a 'court of competent jurisdiction', and that the Court of Sessions is not a competent court before the case is committed to it. Rejecting this argument, it was observed that the phrase court of competent jurisdiction denotes a validly constituted court conferred with the jurisdiction to try the offence and an irregularity in the procedure would not denude the competence of the court. The Bench further distinguished the decision in Gangula Ashok (supra) on the ground that there the trial was yet to begin as opposed to this case where the challenge was after the Accused was convicted. On these reasons, the appeal was allowed. 29. In Moly v. State of Kerala (2004) 4 SCC 584 and Vidyadharan v. State of Kerala (2004) 1 SCC 215, the Accused was convicted under the SC and ST Act and provisions of the Indian Penal Code. The appeal against the conviction was dismissed by the Kerala High Court. Before this Court, it was contended that the Sessions Court could not have taken cognizance without committal by the Magistrate. Relying on Gangula Ashok (supra), it was held that the Court of Sessions could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure of 1973 which would even remotely suggest that the protections as provided under the old Code have been telescoped to the existing one . In this backdrop, the Court held that in view of the restricted role of the Magistrate in committal proceedings, absence of committal would not lead to a failure of justice; (ii) A criminal proceeding must endeavor to conform to the principles of a 'speedy trial' and 'protection of the victim of the crime'. Since the objection was not raised at the time of framing of charges but only after the conviction, the failure of justice must be proved to be overbearing compared to the right of the victim and right of speedy trial which was not proved in this case; (iii) Moly (supra) and Vidhyadharan (supra) are per incuriam. Bhooraji (supra) has been correctly decided; and (iv) In Gangula Ashok (supra), the trial had not commenced as compared to the other cases where the trial had completed and the Accused were convicted. The Accused did not wait for the trial to commence before challenging the cognizance order. 32. It may be noted that Section 14 of the SC and ST Act has been substituted by Act 1 of 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance order after the completion of the trial. Gangula Ashok (supra) and Shantaben (supra) fall within the first category, while Rattiram (supra), Moly (supra), Bhooraji (supra) and Vidhyadharan (supra) fall within the second category. In both Bhooraji (supra) and Rattiram (supra), though it was observed that the cognizance order is irregular, it was held not to vitiate the proceedings since there was no 'failure of justice' that could be proved in view of Section 465 Code of Criminal Procedure. However, in Gangula Ashok (supra), the challenge to the cognizance order was made before the commencement of the trial. 34. Section 193 Code of Criminal Procedure states that the Sessions Court shall not take cognizance of an offence as a Court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special Court could directly take cognizance of the offences. Therefore, the Sessions Court did not have the authority to take cognizance. Section 209 Code of Criminal Procedure provides the Magistrate the power to commit the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding. The observation in Rattiram (supra) distinguishing Gangula Ashok (supra) on the basis of the stage of the trial thus takes its support from Section 465(2) of the Code where a classification is sought to be made on the basis of the challenge vis- -vis the stage of the proceedings. 37. Section 465 stipulates that the order passed by a Court of competent jurisdiction shall not be reversed or altered by a Court of appeal on account of an irregularity of the proceedings before trial or any inquiry. It is settled law that cognizance is pre-trial or inquiry stage. Gangula Ashok v. State of A.P., (2000) 2 SCC 504; Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, where a Constitution Bench held that trial begins after framing of charge. Therefore, irregularity of a cognizance order is covered by the provision. In order to determine if the provision applies to pre-trial orders like an irregular cognizance order or only applies to orders of conviction or acquittal, it is necessary that we interpret the provision contextually. 38. Chapter XXXV of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Magistrate who is not empowered by law in this behalf, which would vitiate the proceedings. Clause (e) of Section 460 relates to the taking of cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190 Code of Criminal Procedure. Clause (a) of Section 190(1) refers to the receipt of a complaint of facts constituting an offence and Clause (b) refers to a police report of the facts. Consequently, where a Magistrate who is not empowered by law takes cognizance of an offence either under Clause (a) or Clause (b) of Section 190(1) erroneously though in good faith, the proceedings will not be set aside merely on the ground that the Magistrate was not so empowered. In other words, for vitiating the proceedings, something more than a mere lack of authority has to be established. Clause (k) of Section 461 adverts to a situation where a Magistrate who is not empowered takes cognizance of an offence under Clause (c) of Section 190(1). Section 190(1)(c) empowers the Magistrate to take cognizance upon information received from a person other than a police officer or upon his own knowledge. The taking of cognizance Under Section 190(1)(c) by a Magistrate who is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized principle of speedy trial. This was highlighted by Justice Jeevan Reddy while writing for a two judge Bench in Santhosh De v. Archana Guha where the learned judge observed AIR 1994 SC 1229: 15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An Accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior Courts and the superior Courts, we are pained to say, are falling prey to their stratagems. We expect the superior Courts to resist all such attempts. Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind Section 465 Code of Criminal Procedure. That any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge could have been made earlier. 43. The test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the Accused. Anna Reddy Sambasiva Reddy v. State of A.P. AIR 2009 SC 2661 No straitjacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation. 44. It needs to be determined if condoning the irregularity of the cognizance order Under Section 465 would lead to a 'failure of justice'. In our considered opinion, it would not lead to a failure of justice for the following reasons: (i) The diminished role of the committing Court Under Section 209 of the new Code while committing the case to the Court of Session. Both the decision in Bhooraji (supra) as well as the subsequent decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not have an immediately identifiable human victim but there can be no mistaking its consequence for the entire bio-system of which human beings are an intrinsic, but not the only, element. Environmental crime is in essence a planetary crime-it affects every component of the natural systems with which the 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 valuable resources. The destruction of the natural environment has serious consequences for the present and the future. The MMDR 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 a revenue yielding or regulating measure. The essence of the law is to protect human kind and every species whose existence depends on natural resources from the destruction which is caused by rapacious and unregulated mining. The offences which have been taken into account by Parliament while enacting Sub-sections (1) and (1A) of Section 4 intrinsically affect the environment which, in turn, affects the existence of communities who depend on the environm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to bail. On 17 March 2017, arguments were addressed before the Special Judge by the Special Public Prosecutor on the charges. The High Court was moved for quashing Under Section 482 Code of Criminal Procedure on 20 March 2017 at that stage. Significantly in the proceedings before the High Court, no ground of challenge was addressed on the basis of the submission (now urged before this Court) that in the absence of a committal order by the Magistrate, the proceedings before the Special Judge suffered for want of jurisdiction. The submission which has been urged before this Court for the first time, purportedly on the ground that a pure question of law is involved, cannot efface the factual position that from the date of the submission of the charge sheet in 2015 until the filing of the quashing petition on 20 March 2017, the Accused participated in the proceedings before the Special Judge and raised no objection at any time either before the Special Judge or before the High Court. Therefore, the challenge to the irregularity in taking cognizance was not made at the earliest. Though it was made before the conclusion of the trial, the challenge after two years would still amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of its power Under Section 319 Code of Criminal Procedure. The two judge Bench held that when a case is committed to the Court of Sessions by the Magistrate Under Section 209 on the ground that it is exclusively triable by it, the Sessions Court would have the power to take cognizance of the offence. Also see, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 (at 499, paragraphs 19 and 20); Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157 (at 163, paragraph 17) It was thus held that since cognizance is taken of the offence and not the Accused, if any material suggests the complicity of other persons in the offence, the Court of Sessions can summon such other persons. The court, by drawing a comparison between Section 193 of the Code of 1973 and the Code of 1898, and on a reading of Section 209 Code of Criminal Procedure held that both the committal and cognizance is of the offence and not the Accused/offender. In arriving at the above conclusion, this Court in Kishun Singh affirmed the judgment of a Full Bench of the Punjab High Court in SK Lutfur Rahman v. State 1985 PLJR 640 : 1985 Cri. LJ 1238(Pat HC) (FB) Justice A.M. Ahmadi (as the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case Under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. 48. In other words, upon the committal by the Magistrate, the Court of Sessions is empowered to take cognizance of the whole of the incident constituting the offence. The Court of Sessions is thus invested with the complete jurisdiction to summon any individual Accused of the crime. The above principles were reiterated in a two judge Bench decision in State of W.B. v. Mohd. Khalid (1995) 1 SCC 684. Justice S. Mohan speaking for the Court observed: 43.[...] Section 190 of the Code talks of cognizance of of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the Accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 50. In R.N. Agarwal v. R.C. Bansal (2015) 1 SCC 48, a Special Judge took cognizance of the offences punishable Under Sections 120-B, 420, 468 and 471 Indian Penal Code as well as Section 13(1)(d) of the Prevention of Corruption Act. The Special Judge however, summoned the prosecution witnesses. The prosecution witnesses approached the High Court Under Section 482 Code of Criminal Procedure seeking to quash the summons issued against them. The High Court quashed the summons order passed by the Special Judge. This Court allowed the appeal holding that the Special Judge in view of Sections 193 and 209, took cognizance of the offence and therefore had the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effect of the order for any injustice to be meted out. C.4 Cognizance by the Special Court of offences under the Indian Penal Code 54. The Appellant had raised a contention that even if the Special Judge had the power to take cognizance of the offence, he could only have taken cognizance of offences under the MMDR Act and could not have taken cognizance (and conduct trial) of the offences under the provisions of Indian Penal Code. For this purpose, the counsel for the Appellant referred to Section 30B(1) of the MMDR Act which states that the State Government may for providing speedy trial of offences Under Sections 4(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 Government may, for the purposes of providing speedy trial of offences for contravention of the provisions of Sub-section (1) or Sub-section (1A) of Section 4, constitute, by notification, as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. Section 4(1) of the MMDR Act states that no person shall undertake any reconnaissance, prospecting or mining opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssly provide the Special Court with the power to try offences other than those offences specified in the Act. Section 4(3) of the PC Act reads as follows: (3) When trying any case, a special Judge may also try any offence, other than an offence specified in Section 3, with which the Accused may, under the Code of Criminal Procedure, 1973 (2 of 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 other offences.--(1) When trying any offence, a Special Court may also try any other offence with which the Accused may, under the Code be charged, at the same trial if the offence is connected with such other offence. (2) If, in the course of any trial under this Act of any offence, it is found that the Accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law. (emphasis supplied) Section 28(2) of the POCSO Act provides the following: (2) While trying an offence under this Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person Accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person Accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this Section shall affect Section 71 of the Indian Penal Code (45 of 1860). 58. Section 409 Indian Penal Code deals with the offence of Criminal breach of trust by a public servant, banker, or agent, while Section 420 Indian Penal Code deals with cheating. Since both these offences are alleged to have been committed in the course of the same transaction as the offences under the MMDR Act, the situation is squarely covered by Sub-section (1) of Section 220 of Code of Criminal Procedure. It now needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions in the similar statute on combined trial are only clarificatory, the reference to external aids offer no support to 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 that Section 220 Code of Criminal Procedure shall not be applicable; and (ii) if (i) is in negative, then whether the MMDR Act by necessary implication excludes the application of Section 220 Code of Criminal Procedure. 62. Since there is no express provision that excludes the application of Section 220 Code of Criminal Procedure, it needs to be examined if the MMDR Act has by necessary implication excluded the application of Section 220 Code of Criminal Procedure. In this context, it needs to be determined if Section 30B of the MMDR Act while establishing the Special Court for offences Under Section 4 of the MMDR Act, by necessary implication excludes the application of Section 220 Code of Criminal Procedure. C.4.2 Joint trial and implied repeal 63. The general Rule of construction is that there is a presumption against a repeal by implication because the legislature has full knowledge of the existing law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Securities) Act 1992 has the power to grant pardon as Under Sections 306 and 307 Code of Criminal Procedure Section 306 and 307 Code of Criminal Procedure deal with the tender of pardon by the Court to an accomplice on the condition of making full and complete disclosure of the circumstances of the offence to the best of his/her knowledge. Therefore, the question in essence was whether Sections 306 and 307 Code of Criminal Procedure apply to the proceedings before the Special Court constituted under the Special Court Act 1992. Section 9(2) of the Special Court Act 1992 stated that the provisions of the Code of Criminal Procedure would be applicable to the proceedings before the Special Court, unless the Special Court Act 1992 provides anything to the contrary. It was held by the three judge Bench of this Court that there was no express provision (or inference by necessary implication that can be made) excluding the applicability of Sections 306 and 307 Code of Criminal Procedure to proceedings before the Special Court. One of the contentions raised by the counsel for the Appellant was that similar earlier enactments have expressly granted the power to grant pardon to the Special Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power Under Section 307 cannot be denied merely because no commitment of the case is made to the Special Court. Learned Solicitor-General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us. It is also evident from Fernandes case [AIR 1968 SC 594 : (1968) 1 SCR 695 : 1968 Cri. LJ 550] as well. C.4.2.1 Section 30B of the MMDR Act and Section 220 Code of Criminal Procedure-The question of implied repeal 66. Section 30B of the MMDR Act provides for the constitution of the Special Court for 'speedy trial of offences for contravention of the provisions' of Section 4 of the Act. Does the fact that the Special Court has jurisdiction to try offences under the MMDR Act oust the jurisdiction of the Special Court to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of taking cognizance based on a police report on the one hand and a private complaint Under Section 200 Code of Criminal Procedure on the other, and that the requirement of a demonstrable application of mind in the latter case is higher. For this purpose, the counsel relied on this Court's decisions in Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424 and State of Gujarat v. Afroz Mohammed Hasanfatta (2019) 20 SCC 539. 69. The decision of this Court in Pepsi Foods Ltd. (supra), arose out of the institution of a complaint filed against the Appellants Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1964. The allegation in the complaint was that the Appellants sold a bottle of beverage which was adulterated. After recording primary evidence, the Magistrate passed orders summoning the Appellants. The Appellants instituted proceedings before the High Court Under Section 482 Code of Criminal Procedure for quashing the summoning order and the proceedings. It was in this backdrop, that while adverting to the procedure envisaged in Chapter XV of the Code of Criminal Procedure more particularly the provisions of Section 200, Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um in 2002. The case was being monitored by this Court. The CBI registered a case and after completion of the investigation filed a charge-sheet in the court of the Special Judge. The CBI, among others, mentioned three telecom companies as Accused persons in respect of offences Under Section 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 the Accused persons, the Special Judge while recording satisfaction that there was enough incriminating material to proceed against the Accused named in the charge-sheet also found that three individuals, namely, the CMD, MD and Director of the three telecom companies were an alter ego of the respective companies. While taking cognizance of the cases, summons were issued not only to the Accused in the charge-sheet but to the aforesaid three persons as well. Two of them moved this Court. Justice A.K. Sikri, while speaking for the three judge Bench, held that before taking cognizance of an offence, the Magistrate should have applied his mind to the case to satisfy himself that the allegations would constitute an offence: 48. Sine qua non for taking cognizance of the offence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), it was observed that the Magistrate ought to have applied his mind to the allegations and must be satisfied that the facts alleged would constitute an offence. The order of the Magistrate was set aside by this Court on the ground that the order did not indicate an application of mind by the Magistrate. The facts in this case fall squarely within Section 190(1)(a) Code of Criminal Procedure since the Magistrate was only guided by the complaint before him. Moreover, Justice Kurian Joseph, writing for the two-judge Bench has clearly taken note of the difference between Section 190(1)(a) and 190(1)(b): 21. Under Section 190(1)(b) Code of Criminal Procedure, the Magistrate has the advantage of a police report and Under Section 190(1)(c) Code of Criminal Procedure, he has the information or knowledge of commission of an offence. But Under Section 190(1)(a) Code of Criminal Procedure, he has only a complaint before him. The Code hence specifies that a complaint of facts which constitute such offence . Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance Under Section 190(1)(a) Code of Criminal Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlike the present case where cognizance was taken based on the SIT report, in those cases cognizance was taken based on a complaint. The difference in the standard of proof for application of mind with reference to cognizance based on a complaint and police report has been briefly discussed in Mehmood Ul Rehman (supra) and Fakruddin Ahmed (supra). A two-judge Bench of this Court in Afroz Mohammed Hasanfatta (supra) laid down the law on the difference of the standard of review of the application of mind by the Judge while taking cognizance based on a police report and a private complaint. 74. In Afroz Mohammed Hasanfatta (supra), a complaint was filed by the Manager of a Bank against a Private Limited Company alleging that in pursuance of a conspiracy, the Company was importing rough and polished diamonds from the foreign market and selling them in the local market. On verification, the bills of entry were found to be bogus. Based on the complaint, an FIR was registered for offences Under Sections 420, 465, 467, 468, 471, 477A and 120B of the Penal Code. A charge-sheet was submitted Under Section 173 Code of Criminal Procedure against two persons and the Respondent was referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing summons to the Accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the Accused. In a case based upon the police report, at the stage of issuing the summons to the Accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file. (emphasis supplied) 75. The Special Judge, it must be noted, took cognizance on the basis of a report submitted Under Section 173 Code of Criminal Procedure and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta (supra). The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force no court shall take cognizance.... , the Section begins with the words no court shall take cognizance of any offence. [...] 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other Sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take cognizance of the offence and not when the Magistrate orders further investigation Under Section 156(3) Code of Criminal Procedure. Referring a complaint for investigation Under Section 156(3) would be at the pre-cognizance stage. Justice M.R. Shah observed: 16. ...Therefore, when an order is passed by the Magistrate for investigation to be made by the police Under Section 156(3) of the Code, which the learned Magistrate did in the instant case, when such an order is made the police is obliged to investigate the case and submit a report Under Section 173(2) of the Code. That thereafter the investigating officer is required to send report to the authorised officer and thereafter as envisaged Under Section 22 of the MMDR Act the authorised officer as mentioned in Section 22 of the MMDR Act may file the complaint before the learned Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the learned Magistrate would arise. The conclusions which were arrived at by the Court were as follows: 21.1. That the learned Magistrate can in exercise of powers Under Section 156(3) of the Code order/di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the bar Under Sub-section (2) of Section 23-A shall not affect any proceedings for the offences under Indian Penal Code, such as, Sections 379 and 414 Indian Penal Code and the same shall be proceeded with further. 79. The Government of Karnataka issued a notification on 21 January 2014 in exercise of powers Under Sections 21(3), 21(4) and 22 of the MMDR Act 1957 and Rules 43(3) and 46 of the Karnataka Minor Mineral Concession Rules 1994. The notification authorized officers/authorities for the purpose of Section 22. The text of the authorization is extracted below: Sl. No. Designation of Officers/Authorities Jurisdiction Department (1) (2) (3) (4) 1 The Additional Director (mineral administration) Whole of the State Department of Mines and Geology 2 The Joint Director, South/North zones Within their Jurisdiction Department of Mines and Geology 3 Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. On a reading of the notification dated 29 May 2014, it is evident that the SIT has the jurisdiction throughout Karnataka in relation to mining offences. S. No. 13 of the Notification dated 21 January 2014 authorizes the 'Sub-inspector of Police' within its jurisdiction for the purpose of Section 22 of the MMDR Act. Therefore, on a combined reading of both the notifications, it is clear as day light that the complaint filed by SIT and signed by the Sub-Inspector of Police has complied with Section 22 of the MMDR Act. C.7 Vicarious liability and Section 23 of MMDR Act 81. A-1 submitted that the charge-sheet does not ascribe any role to A-1 and hence the process initiated against him must be quashed. The Appellants in support of their argument relied on Sunil Bharati Mittal (supra), Shiva Kumar Jatia v. NCT of Delhi (2019) 17 SCC 193, Sunil Sethi v. State of Andhra Pradesh (2020) 3 SCC 240 and Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd. In Sunil Bharati Mittal (supra), a three-judge Bench of this Court observed that the general Rule is that criminal intent of a group of people who undertake business can be imputed to the Company but not the other way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing contained in Sub-section (1) shall render such a person liable to punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence of preventing the commission of the offence. 83. In SMS Pharmaceuticals v. Neeta Bhalla (2005) 8 SCC 89, a three-judge Bench while construing the provisions of Section 141 of the Negotiable Instruments Act 1881, which are in pari materia with Section 23 of the MMDR Act has noted that the position of a Managing Director or a Joint Managing Director of a company is distinct since persons occupying that position are in charge of and responsible for the conduct of the business. It was observed that though there is a general presumption that the Managing Director and Joint Managing Director are responsible for the criminal act of the company, the director will not be held liable if he was not responsible for the conduct of the company at the time of commission of the offence. The Court observed: 9. The position of a managing director or a joint managing director in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine if the conditions in Section 23 of the MMDR Act have been fulfilled i.e., whether the individual was in-charge of and responsible for the affairs of the company during the commission of the offence. In view of the above decisions, the submissions which has been urged on behalf of the Appellant cannot be acceded to. The determination of whether the conditions stipulated in Section 23 of the MMDR Act have been fulfilled is a matter of trial. Moreover, it is evident that the charge sheet, as a matter of fact, ascribes a role to A-1 and A-2 for the payment of transportation. Therefore, there is a prima facie case against A-1, which is sufficient to arraign him as an Accused at this stage. D. The Conclusion 85. In view of the discussion above, we summarise our findings below: (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 prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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