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TMI Blog2020 (1) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of MDPs, was found to be a matter of defence which could not be pressed at the threshold. A matter, Under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the Appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the Appellant with various other acts and omissions which have been alleged against the first Accused in particular along with the fifth Accused and other Accused. However, the fact remains, if the defence of the Appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the Appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the Appellant to press before the court considering the application Under Section 227 of the Code of Criminal Procedure. The inevitable consequence is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) and directed Deputy Director, Mines and Geology, Hospet for issue of MDPs to the new partners, viz., the first Accused and the second Accused by violating Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act', for short) and Mineral Concession Rules, 1960 (hereinafter referred to as 'the Rules', for short). There are various allegations regarding other Accused. As far as Appellant is concerned, it is alleged further in the charge-sheet that the acts of the Accused, seven in number, including the third Accused (Appellant), constitutes criminal offences punishable Under Sections 120B, 420, 379, 409, 447, 468, 471, 477A of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for short) and Sections 13(2) and 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. No doubt, the origin of this investigation is to be traced to an Order passed by this Court dated 29.03.2011 in Special Leave Petition (Criminal) No. 7366-7367 of 2010 and connected matters ordering investigation into the illegalities into the matter of Mining Lease No. 2434 of AMC. The allegations include the allegation that the Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tners were inducted. The application was sent to the Director for issuance of MDP. In addition to the application filed to the Deputy Director seeking MDPs, Shri K.M. Vishwanath, Ex-Partner, representing the firm, made application to the Director, placing on record that firm had been reconstituted by inducting the first and the second Accused and, accordingly, intimated Under Rule 62 of the Rules. It is stated further that after receiving the application by the Department, the file will have to be processed in the Mining Lease Section. There is an elaborate procedure followed while considering applications in Department of Mines and Geology. The Section Officer initially examines the file. A detailed note on the application is prepared. The file, along with note sheet, is sent to the Superintendent of the Mining Leases Section who is a senior Officer who examines the note sheet and puts up the same before the Additional Director. The Additional Director, who is the senior-most departmental Officer in the Department, examines the entire file and puts up the file before the Director. He passes an order considering the law applicable. If it is within the jurisdiction, he disposes the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of the examination of the file, it was brought to the notice of the Appellant that Rule 37 was not applicable. A communication was sent to the Deputy Director, Hospet that the permits will have to be issued to the AMC but not in the names of the partners. The Appellant further submitted that after receipt of the file, he contacted the Deputy Director (Legal) telephonically who informed that the reconstitution of the firm had taken place by inducting new partners and permits may be issued in the name of the Company and not in the name of the partners which was denied by the said Deputy Director (Legal) at a later stage. He sought support of Section 27 of the Act which protected acts done in good faith under the Act. He pointed out that during the investigation, he gave details of various firms who have leases with the Government which have not obtained permission Under Rule 37. The procedure which was consistently followed for obtaining MDPs by intimating reconstitution Under Rule 62 was brought to the notice. It was contended that taking a bonafide administrative decision on the understanding of Rule 37 and based on previous precedents, should not be considered as cheating. Rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating evidence collected by the prosecution, it is noted, is that the Appellant recommended issuance of MDPs in gross violation of the Act despite the office noting to the effect that the matter required legal opinion. The stand of the Appellant that he had discussed the matter with the Legal Department is seen negatived by CW21. As to his contention that many a time AMC was reconstituted and he had really discussed the matter with CW21 before directing the issue of MDPs, was found to be a matter of defence which could not be pressed at the threshold. 8. We notice the following findings: 12. Applying the formulae of (some/mere suspicion - grave suspicion: as enunciated in Dilawar Balu Kurane's case (supra) and Union of India v. Prafulla Kumar Samai and Anr. reported in AIR 1979 SC 366, to the evidentiary material placed before the court against Respondent, then also the needle tilts more towards grove suspicion. The subject matter involved in this case is the natural resource of the country and the alleged offence is said to have caused loss to the State exchequer substantially. The Respondent is a responsible officer of the State. Consciously he passed the order in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and Anr. (2010) 2 SCC 398 and discern the following principles: i. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the Accused. ii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution. iii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court. iv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the Accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the Accused committed offence, then, there will be no sufficient ground for proceeding with the trial . v. It is open to the Accused to explain away the materials giving rise to the grave suspicion. vi. The court has to consider the broad probabilities, the total effect of the evidence and the documents p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently on 1st August, 2009 Smt. K.M. Parvatamma and Mr. K.M. Vishwanath retired. Mr. G. Janardhana Reddy and Mrs. G. Lakshmi Aruna are sole Partners of the Mine. The admission and Retirement deed are enclosed herewith for your perusal. This is for your kind information. Kindly issue permission to transport the ore from Mines to various destinations. Thanking you, Yours sincerely, sd/- Smt. K. Parvatamma sd/- Mr. K.M. Vishwanath 17. The role, which is attributed to the Appellant, begins essentially with this letter. It is the case of the prosecution that having regard to Rule 37 of the Rules, it was incumbent upon the Appellant, before acting upon the reconstitution of the firm, to obtain the previous sanction of the State Government. The Charge Witnesse-CW24-D. Hanumantha, undoubtedly, has given statement indicating that the letter aforesaid was marked to him to process the same. He further stated that he proposed that legal opinion may be obtained. Finally, it was submitted to the Additional Director. The Additional Director also recommended the need to obtain legal opinion. The matter came up before the Appellant on 04.01.2010. On 04.01.2010, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows, inter alia: 37. Transfer of lease: (1) The lessee shall not, without the previous consent in writing of the State Government and in the case of mining lease in respect of any mineral specified in Part 'A' and Part 'B' of the First Schedule to the Act, without the previous approval of the Central Government: (a) assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein, or (b) enter into or make any bonafide arrangement, contract, or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessee's operations or undertakings will or may be substantially controlled by, any person or body of persons other than the lessee: 21. The Trial Court has placed reliance on judgment of the Division Bench of the Mysore High Court in Sree Ramakrishna Mining Company (supra). In fact, the Court in the said case, considered Rule 37 of the Mineral Concession Rules of 1949, which read as follows: 37. Transfer of lease: The lessee may with the previous sanction of the State Government and subject to conditions specified in the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the practice obtaining in the Department. There is the case for the Appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA. 25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction Under Section 227 of the Code of Criminal Procedure The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the Accused, it, undoubtedly, would enure to the benefit of the Accused warranting the Trial Court to discharge the Accused. 26. It is not open to the Accused to rely on material by way of defence and persuade the court to discharge him. 27. However, what is the meaning of the expression materials on the basis of which grave suspicion is aroused in the mind of the court's , which is not explained away? Can the Accused explain away the material only with reference to t ..... 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