9911796707
TMI Blog2012 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 20th April, 2012. Since we have heard the affected parties, the Petitioners and the learned Amicus Curiae, we shall summarize the contentions of the Learned Counsel for the respective parties. The Learned Counsel appearing for the affected parties contended: a. CEC has submitted its report without providing them an opportunity of being heard. b. CEC has exceeded its jurisdiction and enlarged the scope of the enquiry beyond the reference made by the Court. Thus, the Court should not accept any of the recommendations made by the CEC. c. In relation to the alleged irregularities and illegalities pointed out in the report of the CEC, even where criminality is involved or criminal offences are suspected, the matters are sub judice before the Court of competent jurisdiction. Thus, this Court should not pass any orders for transferring the investigation of such offences to the Central Bureau of Investigation (for short 'CBI') as it would seriously prejudice their interests. 2. In order to deal with these contentions, it is necessary for this Court to briefly refer to the background of these cases, which has resulted in the filing of the unnumbered IA in Writ Petition No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the way for a full-fledged probe. As a result of vacation of the stay, the CBI continued its investigation. 5. The CBI also filed a charge-sheet in a special court against the OMC, in an illegal mining case falling within the State of Karnataka, charging the accused under Sections 120B, 409, 420, 468 and Section 471 of the Indian Penal Code, 1860 (for short 'Indian Penal Code') read with the provisions of the Prevention of Corruption Act, 1988. The case against the OMC for illegal mining was under investigation in respect of the areas of Obulapuram and Malangapudi villages of Anantpur district in the State of Andhra Pradesh and in the rest of the State of Andhra Pradesh. 6. Further, the State of Andhra Pradesh vide its G.O. Rt. No. 723 dated 25th November, 2009, issued by the Industrial and Commercial Department, suspended the mining operations and also the transportation of mineral material by OMC and even other implicated companies, on the basis of the findings of a High Level Committee, headed by the Principal Chief Conservator of Forests, Hyderabad and the Report of the CEC submitted to this Court in I.A. No. 2/2009 in Writ Petition (Civil) No. 201 of 2009, a copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der be conducted and proper Relief and Rehabilitation Programmes (for short 'RR Programmes') be implemented. 8. All the above cases, i.e., W.P.(C) No. 202/1995, 562/2009 and SLP(C) No. 7366-7367/2010, relate to protection of environment, forest areas, stoppage of illegal mining and cancellation of illegal sub-leasing and contracts executed by any State Government in favour of the third parties, to the extent such contracts are invalid and improper. The latter cases, Writ Petition (Civil) No. 562 of 2009 and SLP(C) Nos. 7366-7367 of 2010 concern the Bellary Forest Reserve. Further, there were serious allegations raised in these petitions as to how and the manner in which the leases were executed and mining permits were granted or renewed for carrying out the mining activities stated in the petition. 9. The CEC was required to submit quarterly reports, which it has been submitting and with the passage of time, large irregularities and illegalities coupled with criminality were brought to the notice of this Court. The CEC, in discharge of its functions and responsibilities, was examining the matters, in both the States of Andhra Pradesh and Karnataka. These violations have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra Pradesh under FIR No. 17A/2009-CBI (Hyderabad). It was also reported that there was massive illegal mining by third parties in the mining lease No. 1111 of one M/s. National Minerals Development Corporation (NMDC). It was suspected that one M/s. Deccan Mining Syndicate (for short "DMS") was involved in such activities and no action had been taken on the complaints of NMDC. Some other directions were also issued including directions for further inquiry by the CEC and the CEC was required to put up a comprehensive report before this Court. 11. In the meanwhile, an application was filed by the Petitioners of writ petition No. 562 of 2009 which remained un-numbered. The prayer in this application was to extend the scope of investigation by the CBI relating to illegal mining and other allied activities which the politicians and major corporate groups including M/s. Jindal Group and M/s. Adanis were indulging in, within the State of Karnataka. They also prayed that both the States should also be directed demarcate the inter-state boundaries, particularly, in the mining area. 12. After examining the issues raised in the IA, the earlier orders of this Court and based on the meetings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being shown to them in respect of the mining lease of M/s MML it is RECOMMENDED that a detailed investigation may be directed to be carried out in the matter by an independent investigating agency such as the Central Bureau of Investigation (CBI) and to take follow up action. This agency may be asked to delve into the matter in depth and in a time bound manner. This agency may also be directed to investigate into other similar cases, if any, of lands de-notified from acquisition by the Bangalore Development Authority and the illegalities / irregularities / procedural lapses, if any, and to take follow up action. 16. The Prerna Education Society set up by the close relatives of the then Chief Minister, Karnataka has during March, 2010 vide two cheques of Rs. 5.0 crores each received a donation of Rs. 10 crores from M/s South West Mining Limited, a Jindal Group Company. In this context, it is of interest to note that during the year 2009-2010 the net profit (after tax) of the said Company was only Rs. 5,73 crores. Looking into the details of the other donations made by the said Company or by the other Jindal Group Companies to any other Trust / Society not owned, managed or contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI, in terms of its manual has adopted a procedure of conducting limited pre-investigation inquiry as well. In both the cases, the registration of the FIR is essential. A police investigation may start with the registration of the FIR while in other cases (CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of the Code of Criminal Procedure. Section 154 of the Code of Criminal Procedure places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in-charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156(3) Code of Criminal Procedure the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure or the Supreme Court under Article 136 of the Constitution of India, such that it may order for complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of discretionary jurisdiction under Sections 311 and 391 of Code of Criminal Procedure. In cases where cognizance has been taken and where a substantial portion of investigation/trial have already been completed and where a direction for further examination would have the effect of delaying the trial, if the trial court is of the opinion that the case has been made out for alteration of charge etc., it may exercise such powers without directing further investigation. Ref. Sasi Thomas v. State and Ors. (2006) 12 SCC 421. Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such statutory power effective. Therefore, absence of statutory provision empowering Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate shall stay the proceedings and await the report of the investigating agency. Upon presentation of the report, both the cases on a Police report and case instituted on a complaint shall be tried as if both were instituted on a Police report and if the report relates to none of the accused in the complaint it shall proceed with the enquiry/trial which had been stayed by it. The section proceeds on the basis that a complaint case and case instituted on a police report for the commission of the same offence can proceed simultaneously and the Court would await the Police report before it proceeds with the complaint in such cases. The purpose again is to try these cases together, if they are in relation to the same offence with the intent to provide a fair and effective trial. The powers of the trial court are very wide and the legislative intent of providing a fair trial and presumption of innocence in favour of the accused is the essence of the criminal justice system. 25. The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge sheet before the court of competent jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court issued a direction to the CBI to investigate and file the charge sheet before the Court having appropriate jurisdiction over the investigation. The reasoning of the Court can be examined from paragraph 63 to 65 of the said judgment, which reads as under: 63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr Rao that the monitoring of an investigation comes to an end after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India, loses all significance. 64. Moreover, it was not a case where the High Court had assumed a jurisdiction in regard to the same offence in respect whereof the Special Judge had taken cognizance pursuant to the charge-sheet filed. The charge-sheet was not filed in the FIR which was lodged on the intervention of the High Court. 65. As the offences were distinct and different, the High Court never assumed the jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the said contention is again without any substance. We have referred to the various orders of this Court. The ambit and scope of proceedings before this Court, pending in the above writ petition and civil appeal, clearly show that the Court is exercising a very wide jurisdiction in the national interest, to ensure that there is no further degradation of the environment or damage to the forests and so that illegal mining and exports are stopped. The orders are comprehensive enough to not only give leverage to the CEC to examine any ancillary matters, but in fact, place an obligation on the CEC to report to this Court without exception and correctly, all matters that can have a bearing on the issues involved in all these petitions in both the States of Karnataka and Andhra Pradesh. Thus, we reject this contention also. 30. Contention (c) is advanced on the premise that all matters stated by the CEC are sub-judice before one or the other competent Court or investigating agency and, thus, this Court has no jurisdiction to direct investigation by the CBI. In any case, it is argued that such directions would cause them serious prejudice. 31. This argument is misplaced in law and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners. 33. In the case of Narmada Bai v. State of Gujarat and Ors. (2011) 5 SCC 79, this Court was concerned with a case where the State Government had objected to the transfer of investigation to CBI of the case of a murder of a witness to a fake encounter. The CBI had already investigated the case of fake encounter and submitted a charge sheet aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons were examined and the improper purchase of land and donations made by them came to light. These facts appear to be inherently interlinked. Despite that and intentionally, we are not dealing with the factual matrix of the case or the documents on record, in any detail or even discussing the merits of the case in relation to the controversies raised before us so as to avoid any prejudice to the rights of the affected parties before the courts in various proceedings and investigation including the proposed investigation. 36. Now, we shall proceed on the assumption that the illegalities, irregularities and offences alleged to have been committed by the affected parties are the subject matter, even in their entirety, of previous investigation cases, sub-judice before various Courts including the writ jurisdiction of the High Court. It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Code of Criminal Procedure in the case instituted on a police report. Similarly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave petition, a Bench of this Court observed: 14. Sub-section (1) of Section 173 Code of Criminal Procedure makes it clear that every investigation shall be completed without unnecessary delay. Sub-section (2) mandates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the name of the parties, nature of information, name of the persons who appear to be acquainted with the circumstances of the case and further particulars such as the name of the offences that have been committed, arrest of the accused and details about his release with or without sureties. 15. Among the other Sub-sections, we are very much concerned about Sub-section (8) of Section 173 which reads as under: 173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a bearing even on the pending cases. The Court, while permitting inquiry/investigation, including further investigation, completed stayed the proceedings in the Trial Court as well and held as under: 10. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. Needless to say the sole object of the criminal justice system is to ensure that a person who is guilty of an offence is punished. 11. Mr K.T.S. Tulsi, learned Senior Counsel had submitted that in some cases the alleged victims themselves say that wrong persons have been included by the police officials as accused and the real culprits are sheltered. He, therefore, suggested that trial should go on, notwithstanding the inquiry/ investigation including further investigation as directed by us. We find that the course would not be appropriate because if the trial continues and fresh evidence/materials surface, it would require almost a de novo trial which would be not desirable. 39. We do not find any necessity to multiply the precedents on this issue. It is a settled principle of law that the object o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily offences against the State and secondarily against the victim. In this case, if the investigation by specialized agency finds that the suspect persons have committed offences with or without involvement of persons in power, still such violation undoubtedly would have been a great loss to the environmental and natural resources and would hurt both the State and national economy. We cannot expect an ordinary complainant to carry the burden of proving such complex offences before the Court of competent jurisdiction by himself and at his own cost. Doing so would be a travesty of the criminal justice system. 42. It was ever and shall always remain the statutory the obligation of the State to prove offences against the violators of law. If a private citizen has initiated the proceedings before the competent court, it will not absolve the State of discharging its obligation under the provisions of the Code of Criminal Procedure and the obligations of Rule of Law. The Court cannot countenance an approach of this kind where the State can be permitted to escape its liability only on the ground that multifarious complaints or investigations have been initiated by private persons or bodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clear position of law supra, we thus direct; a) The issues specified at point 1(a) and 1(b) of the CEC Report dated 20th April, 2012 are hereby referred for investigation by the Central Bureau of Investigation. b) All the proceedings in relation to these items, if pending before any Court, shall remain stayed till further orders of this Court. The CBI shall complete its investigation and submit a Report to the Court of competent jurisdiction with a copy of the Report to be placed on the file of this Court within three months. c) The Report submitted by the CEC and the documents annexed thereto shall be treated as 'informant's information to the investigating agency' by the CBI. d) The CBI shall undertake investigation in a most fair, proper and unbiased manner uninfluenced by the stature of the persons and the political or corporate clout, involved in the present case. It will be open to the CBI to examine and inspect the records of any connected matter pending before any investigating agency or any court. e) The competent authority shall constitute the special investigating team, headed by an officer not below the rank of Additional Director General of Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
