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TMI Blog2012 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 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 of the States of Andhra Pradesh, Karnataka and all other government departments of that and/or any other State, to fully cooperate and provide required information to CBI. - IA No. ... of 2012 in Writ Petition (Civil) No. 562 of 2009 (Under Article 32 of The Constitution of India) - - - Dated:- 11-5-2012 - S.H. Kapadia, Aftab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas, 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 the environment. In addition to this general concern for the environment, the order of this Court dated 9th September, 2002, this Court noted violations of its Orders and directed that the CEC shall monitor implementation of all orders of the Court and shall place before it any unresolved cases of non-compliance, including in respect of the encroachments, removals, implementations of working plans, compensatory afforestation, plantations and other conservation issues. In furtherance to the said order, the Government framed a notification in terms of Section 33 of the Environment Protection Act, 1996. The CEC constituted by this Court was proposed to be converted into a Statutory Committee. The draft notification for the same was also placed before this Court on 9th September, 2002. After approval, the Court di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation 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 Karnataka was still going on in full swing. Such illegal mining and transportation of illegally mined minerals were being done in connivance with the officials, politicians and even Ministers of State. There was a complete lack of action on the part of the Ministry of Environment and Forests on the one hand and the States of Andhra Pradesh and Karnataka, on the other. It was averred that there was complete breakdown of the official machinery, thereby allowing such blatant illegalities to take place. This inaction and callousness on the part of the Central and the State Governments and failure on their part to control the illegal mining has allowed large-scale destruction, both of forest and non-forest lands and has adversely affected the livelihood of the people. It thus, has filed WP (C) 562 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 market requirement for mined ore and vide order dated 5th August, 2011 permitted only M/s. National Minerals Development Corporation Ltd. (for short NMDC ) to carry out very limited mining activity, so that the economic interest of the country and of the states does not suffer irretrievably. This Court has also directed the CEC to examine all aspects of the mining activity and report on various measures that are required to be taken for RR Programmes. Limited mining activity, thus, was permitted to be carried on in the area with the clear direction that the RR Programmes shall be simultaneously commenced and it is only after such RR Programmes are satisfactorily put into motion and the CEC makes a suggestion in this regard, that the mining activity would be permitted. Vide order dated 23rd Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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 banned by the State of Karnataka; and iv) transfer of senior police officers on deputation to Lokayukta, Karnataka. 13. The CEC filed two comprehensive reports before this Court, one dated 20th April, 2012 and other dated 27th April, 2012, both in Writ Petition (Civil) No. 562 of 2011. 14. Out of the above issues indicated, the CEC dealt with issue No. 1 in the Report dated 20th April, 2012, while issue Nos. 2 to 4 were dealt with in the Report dated 27th April, 2012. On issue No. 1, after summarizing the facts and its observations during its enquiry, the CEC pointed out illegalities, irregularities and instances of misuse of public office committed for the benefit of the close relatives of the then Chief Minister, State of Karnataka. It made the following recommendations: 15. Keeping in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndue 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 by M/s JSW Steel Limited and the alleged undue favour shown to it in respect of the mining lease of M/s MML. 17. The CEC has filed its Report dated 28th March, 2012 wherein the representation filed by the Petitioner against Mr. R. Parveen Chandra (ML 2661) has been dealt with (refer para 6(ii), page 11-13 of the CEC Report dated 28th March, 2012). In the said representation it has been alleged that Mr. Parveen Chandra the lessee of ML No. 2661 has made two payments, one of ₹ 2.50 crores to M/s Bhagat Homes Private Limited and the other of ₹ 3.5 crores to M/s Dhavalagir Property Developers Private Limited as a quid pro quo for allotment of the said mining lease. It is RECOMMENDED that this Hon'ble Court may consider directing the investigating agency such as CBI to investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1961 SC 986; Mohd. Yusuf v. Smt. Afaq Jahan and Anr. AIR 2006 SC 705; and Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Ors. (2011) 3 SCC 496. 18. Once the investigation is conducted in accordance with the provisions of the Code of Criminal Procedure, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 Code of Criminal Procedure, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) Code of Criminal Procedure open with non-obstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet, 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 no event is impermissible. 22. A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as afore-noticed and secondly, he could file a complaint under Section 200 Code of Criminal Procedure, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI of the Code of Criminal Procedure. 23. In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond reasonable doubt is entirely on the prosecution. In a complaint case, the complainant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 resultantly this Court would be not competent in law to direct the CBI to conduct investigation of those aspects. We may notice that the investigation of a case or filing chargesheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the Court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 this Court, or under the relevant notifications, in the manner as understood under the Code of Criminal Procedure. The CEC is not conducting a regular inquiry or investigation with the object of filing chargesheet as contemplated under Section 173 Code of Criminal Procedure. Their primary function and responsibility is to report to the Court on various matters relating to collusion in illegal and irregular activities that are being carried on by various persons affecting the ecology, environment and reserved forests of the relevant areas. While submitting such reports in accordance with the directions of this Court, the CEC is required to collect such facts. In other words, it has acted like a fact finding inquiry. The CEC is not discharging quasi-j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 land was purchased by the family members of the then Chief Minister for a consideration of ₹ 40 lacs and was sold after de-notification for a sum of ₹ 20 crores to South West Mining Ltd. after de-notification. For this purpose, office of the Chief Minister and other higher Government Officials were used. While the earlier part of above-noted violations is covered under PCR No. 2 of 2011, the transactions of purchase sale and other attendant circumstances are beyond the scope of the said pending case which refers only to the decision of de-notification. It appears that the entire gamut or the complete facts stated by the CEC and supported by documents are not the matter sub-judice before the Trial Court. Similarly, issue 1 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 was connected together as to form the same transaction under Section 220 of the Code of Criminal Procedure and it was considered appropriate to transfer the investigation of the subsequent case also to CBI. 34. If we analyse the abovestated principles of law and apply the same to the facts of the present case, then the Court cannot rule out the possibility that all these acts and transactions may be so inter-connected that they would ultimately form one composite transaction making it imperative for the Court to direct complete and comprehensive investigation by a single investigating agency. The need to so direct is, inter alia, for the following considerations: (a) The report of the CEC has brought new facts, subsequent ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigation by the investigating agency or police, or even by a specialized investigation agency. Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 clear that further investigation is permissible, however, reinvestigation is prohibited. 16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a further report and not a fresh report regarding the further evidence obtained during such investigation. 19. As observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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., they are already co-operating with the CBI in the investigation directed by the Supreme Court. As far as M/s. South West Mining Ltd. is concerned, it has stated that it is the purchaser of the land for bona fide consideration and genuine purpose. The land has been converted to commercial use and that is why ₹ 20 crores were paid as consideration. They further claimed that they had ₹ 23.96 crores of pre-tax profit and, therefore, they were in a position to make the donation which they had made. Not only they, but other companies affiliated to Jindal Group have also made similar contributions. It is not for us to examine whether the stand taken by the intervener companies is corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 in to ensure that Rule of Law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. This Court expressed its concern about the rampant pilferage and illegal extraction of natural wealth and resources, particularly, iron ore, as also the environmental degradation and disaster that may result from unchecked intrusion into the forest areas. This Court, vide its order dated 29th July, 2011 invoked the precautionary principle, which is the essence of Article 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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