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2021 (11) TMI 1040 - SC - Indian LawsLarge-scale illegal mining and transportation of iron ore - illegal encroachment in forest areas for the purpose of illegal mining - Section 23 of the MMDR Act - HELD THAT - The following conclusion is reached - (i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate Under Section 209 Code of Criminal Procedure. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular; (ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 Code of Criminal Procedure is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 Code of Criminal Procedure; (iii) The decision in Gangula Ashok 2000 (1) TMI 975 - SUPREME COURT was distinguished in Rattiram 2012 (2) TMI 643 - SUPREME COURT based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) Code of Criminal Procedure. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) Code of Criminal Procedure is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others; (iv) In the instant case, the cognizance order was challenged by the Appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court Under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated; (v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' Under Section 465 Code of Criminal Procedure is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 Code of Criminal Procedure; (vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible Under Section 220 Code of Criminal Procedure. There is no express provision in the MMDR Act which indicates that Section 220 Code of Criminal Procedure does not apply to proceedings under the MMDR Act; (vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 Code of Criminal Procedure. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings; (viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material; (ix) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar Under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the Respondent has complied with Section 22 Code of Criminal Procedure; and (x) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an Accused at this stage. The appeal is dismissed.
Issues Involved:
1. Power to take cognizance. 2. Special Court's power to take cognizance. 3. Cognizance of the offence and not the offender. 4. Cognizance by the Special Court of offences under the Indian Penal Code. 5. Cognizance order and non-application of mind. 6. 'Authorized person' and Section 22 of MMDR Act. 7. Vicarious liability and Section 23 of MMDR Act. Issue-wise Detailed Analysis: 1. Power to Take Cognizance: Chapter XIV of the Code of Criminal Procedure empowers a Magistrate to take cognizance of any offence. Section 190(1) stipulates that a Magistrate can take cognizance upon receiving a complaint, a police report, or information from any person other than a police officer. Section 193 restricts the Sessions Court from taking cognizance unless the case is committed by a Magistrate, with exceptions provided by the Code or any other law. Section 209 mandates that the Magistrate shall commit cases exclusively triable by the Court of Session. 2. Special Court's Power to Take Cognizance: The contention was that the Special Court, being a Sessions Court, cannot take cognizance without the case being committed to it. The court examined precedents, including Gangula Ashok v. State of AP, which held that a Special Court under the SC and ST Act cannot take cognizance without committal by a Magistrate. However, in Bhooraji v. State of MP and Rattiram v. State of MP, it was held that the absence of committal does not vitiate proceedings unless a failure of justice is shown. The court concluded that the Special Court's direct cognizance is irregular but does not vitiate proceedings due to Section 465 of the Code, which prevents reversal of orders due to procedural irregularities unless a failure of justice is demonstrated. 3. Cognizance of the Offence and Not the Offender: The principle that cognizance is taken of the offence and not the offender was reiterated. The court noted that the Special Judge's order mentioned taking cognizance against the accused instead of the offence, which is an irregularity but does not vitiate the proceedings under Section 465 of the Code. 4. Cognizance by the Special Court of Offences under the Indian Penal Code: The court examined whether the Special Court under the MMDR Act could take cognizance of offences under the Indian Penal Code. Section 220 of the Code allows joint trials for offences committed in the same transaction. The court held that the Special Court could conduct joint trials of MMDR Act offences and IPC offences, as there is no express provision in the MMDR Act excluding Section 220 of the Code. 5. Cognizance Order and Non-Application of Mind: The court distinguished between cognizance based on a police report and a private complaint. It held that for cognizance based on a police report, the Magistrate is not required to record detailed reasons if it appears that the Magistrate has applied his mind to the material. The Special Judge had perused the relevant material, and thus the order was not erroneous. 6. 'Authorized Person' and Section 22 of MMDR Act: Section 22 of the MMDR Act requires a complaint by an authorized person for cognizance of offences under the Act. The court noted that the Government of Karnataka had authorized several officers, including the Sub-Inspector of Police, as 'authorized persons.' The FIR filed by the SIT, signed by the Sub-Inspector of Police, complied with Section 22. 7. Vicarious Liability and Section 23 of MMDR Act: Section 23(1) of the MMDR Act holds persons in charge of and responsible for the conduct of the business liable for offences committed by the company. The court held that whether the Managing Director was responsible at the time of the offence is a matter for trial. The charge sheet ascribed a role to A-1, establishing a prima facie case sufficient to arraign him as an accused. Conclusion: The appeals were dismissed, with the court holding that the Special Court's irregular cognizance did not vitiate the proceedings, the Special Court could conduct joint trials, and the cognizance order showed sufficient application of mind. The authorized person requirement under Section 22 was met, and the issue of vicarious liability under Section 23 was a matter for trial.
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