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2012 (5) TMI 776

eau 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 Police/Additional Commissioner forthwith. - f) Any investigation being conducted by any agency other than CBI shall also not progress any further, restricted to the items stated in Clause ( .....

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s 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. 562/2009 and the peculiar facts and circumstances in which the CEC has made its recommendations. 3. Concerned with the rampant pilferage and illegal extraction of natural wealth and resources, particularly iron ore, and the environmental degradation and disaster that may result from unchecked intrusion into the forest areas, this Court felt compelled to intervene. Vide its order dated 9th September, 2002 in T.N. Godavarman Thirumalpad v. Union of India and Ors. W.P.(C) No. 202 of 1995, this Court constituted the CEC to examine and monitor the various activities infringing the laws protecting the environment and also the preventive or punitive steps that may be required to be taken to protect .....

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he 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 of which was forwarded to the State Government. This was challenged before the High Court of Andhra Pradesh which, vide judgment dated 26th February, 2010, set aside the notification and allowed the writ petitions, while holding that the G.O. issued by the Government suffered from a jurisdictional error and was in violation of the principles of natural justice. Against the said judgment of the High Court, the Government of Andhra Pradesh filed a Special Leave Petition, SLP(C) No. 7366-7367 of 2010 on different grounds. 7. Samaj Parivartan Samuday, a registered society, filed petition under Article 32 of the Constitution of India stating that the illegal mining in the States of Andhra Pradesh and K .....

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ted 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 come to the surface as a result of enquiries conducted by the CEC, regarding illegal mining and mining beyond their leased areas by these companies. It was pointed by the CEC with specific reference to these companies that there was not only illegal extraction of iron ore but the minerals was being also extracted beyond the leased area specified in the lease deeds. Further, there was unchecked export of iron ore from the border areas of the two States, Andhra Pradesh and Karnataka. This related to the quantum, quality and transportation of ore as well. 10. While passing an order of complete ban on mining activity in these areas vide order dated 29th July, 2011 this Court sought submissions on the marke .....

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ayer 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 held by the CEC on 20th March, 2012 and 11th April, 2012, respectively, the CEC identified the issues as follows: i) The alleged serious illegalities/ irregularities and undue favour in respect of (a) the land purchased by the close relatives of the then Chief Minister, Karnataka for 0.40 crore in the year 2006 and subsequently sold to M/s South West Mining Limited in the year 2010 for ₹ 20.00 crores and (b) donation of ₹ 20.00 crore received by Prerna Education Society from M/s South West Mining Limited. ii) the alleged illegal export of iron ore from Belekeri Port and associated issues; iii) alleged export from Krishapatnam and Chennai Port after exports were b .....

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the then Chief Minister, Karnataka has during March, 2010 vide two cheques of ₹ 5.0 crores each received a donation of ₹ 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 ₹ 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 controlled by the Jindal Group. After considering that a number of allegations, with supporting documents, have been made in the Report dated 27th July, 2011 of Karnataka Lokayukta regarding the M/s. JSW Steel Limited having received large quantities of illegal mineral and alleged undue favour shown to it in respect of the extraction / supply of iron ore by / to it from the mining lease of M/s MML, it is RECOMMENDED that this Hon'ble Court may consider directing the investigating agency such as CBI to also look into the linkages, if any, between the above said donation of ₹ 10 crores made by M/s South West Mining Limited and the alleged receipt of illegal mineral b .....

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o 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 of Criminal Procedure. Such an order of the Magistrate under Section 156(3) Code of Criminal Procedure is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI Code of Criminal Procedure. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 Code of Criminal Procedure, or to adopt the above procedure. [Ref. Gopal Das Sindhi and Ors. v. State of Assam and Anr. AIR .....

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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 nevertheless be competent to direct registration of an FIR. Ref. Sakiri Vasu v. State of Uttar Pradesh and Ors. (2008) 2 SCC 409. 20. Thus, the Code of Criminal Procedure leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of Sub-sections (2) to (6) of Section 173 Code of Criminal Procedure to the Court. 21. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge sheet in terms of Section 173 Code of Criminal Procedure) is permissible in any case impliedly but in n .....

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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 jurisdiction, but it has failed to bring all the culprits to book, the Court is empowered under Section 319 Code of Criminal Procedure to proceed against other persons who are not arrayed as accused in the chargesheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it. 26. We have referred to these provisions and the scope of the power of the criminal court, in view of the argument extended that there are certain complaints filed by private persons or that the matters are pending before the court and resultan .....

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een 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 the Special Judge to direct reinvestigation as was urged or otherwise." 27. Now, we shall proceed to examine the merit of the contentions raised before us. We may deal with the submissions (a) and (b), together, as they are intrinsically inter-related. 28. The CEC had submitted the Report dated 20th April, 2012 and it has been stated in the Report that opportunity of being heard had been granted to the affected parties. However, the contention before us is that while the CEC heard other parties, it had not heard various companies like M/s. South West Mining Ltd. and M/s. JSW Steel Ltd. Firstly, the CEC is not vested with any investigative powers under the orders of thi .....

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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 misconceived on facts. Firstly, all the facts that had been brought on record by the CEC are not directly sub-judice, in their entirety, before a competent forum or investigating agency. 32. In relation to issue 1(a) raised by the CEC which also but partially is the subject matter of PCR No. 2 of 2011 pending before the Additional City Civil and Sessions Judge, Bangalore under the Prevention of Corruption Act. The Court took cognizance and summoned the accused to face the trial, writ against the same is pending in the High Court. It primarily relates to the improper de-notification of the land, which had been under acquisition but possession whereof was not taken. This l .....

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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 against high police officials. This Court analyzed the entire law on the subject and cited with approval the judgment of the Court in the case of Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200. In that case, the Court had declared the law that in appropriate cases, the Court is empowered to hand over investigation to an independent agency like CBI even when the charge-sheet had been submitted. In the case of Narmada Bai, the Court had observed that there was a situation which upon analysis of the allegations it appeared that abduction of Sohrabuddin and Kausarbi thei their subsequent murder as well as the murder of the witnesses are one series of facts and .....

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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 Magistrate has powers under Section 202 Code of Criminal Procedure to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of Section 210 Code of Criminal Procedure use the expression 'shall' requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Code of Criminal Procedure that initiation of an investigation and filing of a chargesheet do not completely debar further or wider inves .....

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ed, 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, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). A mere reading of the above provision makes it clear that irrespective of the report under Sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clea .....

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fficials 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 of every investigation is to arrive at the truth by conducting a fair, unbiased and proper investigation. 40. Referring to the plea of prejudice taken up by the affected parties before us, we are unable to see any element of prejudice being caused to the affected parties if the CBI is permitted to investigate the entire matter. The plea taken by the interveners before us is that M/s. JSW Steels Ltd. is a bona fide purchaser of iron ore from the open market and they have been affected by the unilateral actions of one M/s. Mysore Minerals Ltd. They state that they have no statutory liability to check origin of iron ore or to maintain Form 27. According to M/s. JSW Steels Ltd., the .....

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tion 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 bodies other than the State. In our considered view, it enhances the primary and legal duty of the State to ensure proper, fair and unbiased investigation. 43. The facts of the present case reveal an unfortunate state of affairs which has prevailed for a considerable time in the mentioned districts of both the States of Andhra Pradesh and Karnataka. The CEC has recommended, and the complainant and Petitioners have also highlighted, a complete failure of the State machinery in relation to controlling and protecting the environment, forests and minerals from being illegally mined and exploited. 44. Wherever and whenever the State fails to perform its duties, the Court shall step .....

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' 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 Police/Additional Commissioner forthwith. f) Any investigation being conducted by any agency other than CBI shall also not progress any further, restricted to the items stated in Clause (a) above, except with the leave of the Court. The CBI shall complete its investigation uninfluenced by any order, inquiry or investigation that is pending on the date of passing of this order. g) This order is being passed without prejudice to the rights and contentions of any of the parties to the lis, as well as in any other proceedings pending before courts of competent jurisdiction and the investigating agencies. h) All pleas raised on merits are kept open. i) We direct all the parties, the Government .....

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