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TMI Blog2020 (11) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge, the prosecution had nothing to dispute as to factum of passing of said order. The shortages 3,04,568.175 MT as alleged/found in the impugned Proceedings are not only unsubstantiated but also have been found to be alleged in contradiction to state Govt. s own records. When the figures of three sources viz. Revisionist, IBM and departmental tally with each other, allegations of shortages based on these figures cannot sustain. Revisionist s contention that in the impugned Proceedings quantity transferred for processing/crushing from the existing stock has been accounted twice by the Department for Feb., Mar, June, July and Sept. months of year 2009 and which she has also explained with statutory returns (Annex.- F to I). Thus she has successfully demonstrated and explained where department has erred. It has added to the merit in her contention - Revisionist has produced 29,18,431 MT of iron ore, whereas only 8,49,589.56 MT can be produced from the excavated pits, as stated above there is no basis given in the impugned Proceedings or in the reply. Nor any document/ evidence in support has been given to the Revisionist or filed before Revision Authority. The order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegalities / irregularities / deviations / deficiencies. That being treated as First Information Report (FIR) has led to the registration of Balasore Vigilance P.S. Case No. 59 of 2009 and commencement of investigation thereof. (b) On completion of investigation, the Vigilance Department submitted charge-sheet on 02.11.2010 placing the petitioners and others for trial for commission of offence under section 13(2) read with section 13(1)(d) of the PC Act, section 420/379/120-B of the IPC as well as section 21 of the M.M.D.R. Act. The charge-sheet being filed in the Court of learned Chief Judicial Magistrate, Balasore, the record was transmitted to the learned Special Judge (Vigilance), Balasore leading to registration of T.R. Case No. 44 of 2010. The learned Special Judge (Vigilance), Balasore on receipt of the record and upon perusal of the charge-sheet, took cognizance of above offences by its order dated 06.12.2010. Subsequently, the said case has been transferred to the Court of learned Special Judge (Vigilance), Keonjhar when it was so established and vested with the power to try such offences having the jurisdiction over the area; where the above stated mines situate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .560 MT as confirmed by the expert opinion which shows that the petitioners in connivance with the public servant and the raising contractor have shown dispatch of the excess quantity of 15,81,635.57 MT (24,31,225.130 MT 8,49,589,560 MT) which have not been excavated from the mining leasehold are and the same quantity has been unlawfully procured amounting to theft; Further, that the petitioners have fabricated records in the sale of the iron ore for which the Asst. Commissioner of Commercial Taxes (Vigilance) has assessed payment of huge sum of sales Tax remaining unpaid. 6. The petitioners before the trial court in filing the petition raised several issues explaining the allegations on the factual aspects as attributed to them relating to commission of offences as well as the legal issues in support of their prayer for discharge. Those being culled out from the averments of the said petition are stated as under:- (I) that on the date of joint verification nor on the date of lodging of the F.I.R. which has triggered the investigation as the allegations made therein revealed commission of cognizable offences, the Vigilance Authorities were not empowered either by the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said amount to make good or remedy the breach of conditions within sixty days of receipt of notice; said revision i.e. R.A. No. 22(22)/2010 / RC-1 has been allowed and the demand as well as the above consequential actions in case of failure has been quashed. And that order of Revisional Authority having been challenged by the State by filing a writ application numbered as W.P.(C) NO. 10219 of 2012; the order of the Revisional Authority has been upheld by a judgment passed on 08.08.2016. In view of the fact that these developments have taken place subsequent to the submission of the charge-sheet, the court cannot ignore those from being taken into consideration in their proper perspective so as to judge their legal impact in deciding the question of framing the charge for the trial to commence. (V) In addition to the above, the petitioners have gone to deny each of the factual aspect pointed out by the prosecution in great detail in asserting that actually none of the offences of which cognizance has been taken is made out against them for being charged in the case to face the trial. 7. The prosecution has filed the objection to the above petition in opposing the move f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces indicting the petitioners for facing the trial as to commission of said offences instead of being discharged. 8. The trial court in its order dated 26.07.2018 which has been impugned in this revision having noted the submissions of the learned counsel for the petitioners as well as the Special Public Prosecutor, first of all has gone to narrate the facts as stated in the charge-sheet. It has thereafter discussed the principle of law as to what are the considerations for framing the charges. In doing so, the learned court below has noted few decisions of the Apex Court and quoted the relevant portions from those judgments rendered under the subject. Having proceeded in the exercise to the above extent, further coming to examine the materials on record keeping in view the rival submissions and in the backdrop of the settled principle of law, the followings have been said:- From the joint inspection report, it prima facie reveals that there was excess quantity of dispatch than the production of iron ore from excavated pit and the permission granted for dispatch. Though Indrani Pattanaik has executed a General Power of Attorney in favour of Dipti Ranjan Pattnaik but she was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y baseless and fall flat; thus prima facie not acceptable to be taken cognizance of or even enough to raise strong suspicion in that respect. He further submitted that the prosecution has simply made wild allegations attributing illegal mining activities by the petitioners not only in their mines but also in the periphery without even indicating any such place or places when admittedly by the time of joint inspection, the mining operation in that mines had stretched over years. In this connection inviting the attention of this Court to the observation of the learned trial court that accused having a good case to agitate is a matter to be examined and considered in the trial but not at the stage of framing charge, he urged that having said so, the learned court below ought to have allowed the prayer for discharge of the petitioners as with such stated basic facts, it would be sheer abuse of process to place the petitioners for trial. He then with vehemence submitted that here in the case on the same sets of allegations touching the factual aspects as are said to have been found out during joint inspection which form the basis of the F.I.R. and further investigation as have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Counsel, Vigilance citing recent decision of the Hon ble Apex Court in case of M.E. Shivalinga Murty Vrs. CBI, Bengalore Sevreal Others; (2020) 2 SCC 768 as well as few others first of all placed the scope of consideration and the matters required to be looked into at the time of framing the charge. He submitted that in the obtained facts and circumstances, no case for discharge of the petitioners is made out. He, therefore, submitted that the trial court has rightly passed the order as the grounds raised or the case projected by the petitioners for their discharge are not permissible to be considered at that stage, although the same would stand for their due consideration in the trial. He submitted that the finding in the revision by the Revisional Authority under the MMDR Act as also in the writ do not either operate as estoppel or resjudicata in a prosecution like the present at hand. He further contended that those are also not binding upon the criminal court, where the petitioners are facing the trial and according to him, those are not relevant. It was his submission that said proceeding and the criminal trial going on are two distinct proceedings and here the crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the criminal case. The principles of law are too well settled that while answering the question of framing the charges, a duty is cast upon the Court to consider the record of the case and documents submitted therein. In that exercise, if the decision is to discharge the accused under section 227 of the Code of Criminal Procedure (in short, the Code ), the Court is called upon to give a definite opinion for said discharge. Meaning thereby, that if the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused after recording the reasons for doing so. The language of section 227 of the Code makes it clear that the Court cannot proceed merely on presumption and therefore, the word considers finds place therein. The next parameter is that if after considering the record of the case and the documents submitted there with and hearing in that behalf, the Court exercises the power to frame charges against the accused under section 228 of the Code, said view is tentative. Meaning thereby, that if the Court is of the opinion that there is ground for even presuming that the accused has committed an offence, he shall frame t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding. 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 board probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons; (vii) at the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true; (viii) there must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31,225.130 MT of iron ore stated to have been dispatched clandestinely not from mining leasehold area but by their collection from outside. 18. It has been the fist limb of allegation therein that as ascertained in the joint inspection by a team of Technical Officers, Engineers, Surveyor, Geologist, Revenue, Forest and Mining Officials on 24.09.2009, the closing stock (book balance) should have been 487205.870 MT (29,18431.00 MT- 24,31,225.130MT) as on 24.09. 2009, the date of joint inspection; whereas physical verification of the stock showed the availability of 182637.695 MT; giving a shortage of 304568.175 MT of iron ore. So, it was said that the aforesaid quantity of iron ore has been clandestinely sold avoiding the payment of royalty and sale-tax. With the aforesaid, it was the next limb of allegation that at the relevant time of joint inspection, the quantity of production from May, 2008 to September, 2009 as shown was 2918431.00 MT. of iron ore; whereas the measurement of the volume of excavated pits showed the total production of iron ore was 849589.560 MT. So, it was said that having shown the production of 2068841.44 MT (2918431.00 MT-849589.560 MT), without those b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n continuing to operate the said mines as its lawful lessee since then. 21. The Revisional Authority in its order no.25/2012 dated 16.01.2012 while allowing the said revisional application no.22(22)/2010-RC/1 has from the very beginning taken note of the fact that said proceeding owes its origin to the F.I.R. lodged on 02.09.2010, whereby and whereunder charge-sheet has been prepared on 22.11.2010 after completion of the investigation by the Vigilance Authority and that said F.I.R. was pursuant to the joint inspection and verification of the mines in question of which the petitioner no.2 is the lessee and the petitioner no.1 is the power of attorney holder. It is pertinent to state that the petitioner no.2 being asked to pay the raised demand of Rs.11,31,72,22,470.00 under section 21(5) of the MMDR Act within sixty days, there was stoppage of issuance of Transit Permits bringing the dispatch of minerals from the mines and mining operation to a halt. This had also been complained of by the petitioner no.2 before the Revisional Authority as being an action not sanctioned under the law that even as per the demand before expiration of the period provided therein for compliance an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and dispatches will be as under:- Production 26,57,031 (27,17,082-60,051) Dispatches 24,42,196 (24,82,022-38,826) Closing Balance 2,14,835 (26,57,031-24,42,196) Physical Balance -2,07,338 Shortages 7,497 MT as against alleged/ found 3,04,568.175 Revisionist also contends that F.I.R. dated 01.12.2009 also mentions that on 24.09.09 visiting Vigilance Team had found production 26,38,831 MT (and not 29,18,431 MT as mentioned in the impugned Proceedings). Thus alleges that in the impugned Proceedings record of the Vigilance Department have been tampered by inflating the production figures. Revisionist also contends that IBM on inspection on 09.12.09 certified that production from leasehold area from May 2008 to Nov 2009, had been 30,86,776 MT. With backward computations Revisionist correct production as on 24.09.2009 was 26,57,031 and not 29,18,431 MT. Revisionist finally contends that these shortages are miniscule as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with errors which Sate Govt. appears to have committed in these figures during months of Feb., March, June and July, 2009. She has also given detailed comparison. From above, I observe that there is no discrepancy in production and figures in their records and statutory reports, IBM reports and records of DDM, Joda given under RTI. These all tally with each other. Thus the very basis of the impugned Proceedings is wrong. 31.4. Further as discussed above, the origin or genesis of figures given in the impugned Proceedings has not been explained. Whether they are it is computed on the basis of transit passes, or on the basis of physical periodical departmental inspections or on the basis of the very statutory returns filed by Revisionist? In the absence of clarity and authenticity of these figures, the very basis of impugned proceedings is shaky. 31.5. Thus I hold that shortages 3,04,568.175 MT as alleged/found in the impugned Proceedings are not only unsubstantiated but also have been found to be alleged in contradiction to state Govt. s own records. When the figures of three sources viz. Revisionist, IBM and departmental tally with each other, allegations of shortages base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MT/Cu.M for the iron ore and the Ore Incidence Factor (i.e. recovery percentage) is 70%. Against this that the State Govt. has considered TCF 1.99 and recovery percentage 35% which is wholly arbitrary, mala fide and liable to be rejected being contrary to the norms approved by the IBM. This is also against the general TCF in the area found in survey report of IBNM. The IBM had surveyed the entire region of Joda and Barbil has given report and it had concluded after thorough scientific analysis that general TCF in the mines located in the subject areas is to be considered between 3.5 to 4.8 T/Cu.M (Annexure-L to RA). Revisionist also contends that there is no allegation/evidence of clandestinely dispatch of iron ore. No area from where such ore has been alleged to have been mined has been identified. Thus these allegations / findings have no basis. It is merely surmises and conjectures. The above contentions have been addressed in the revision as under:- 32.3. From scrutiny of impugned Proceedings, I observe that this is a bald allegation / finding. Neither any basis has been given nor has any reference point been mentioned. It is required on the part of party leveling allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal mining from outside lease area after the visit or continued to do so. Impugned Proceedings and State Govt. s reply/ submissions are silent on this issue. Trend and scale of production / dispatch of Revisionist after this visit appears to continue to be the same as it was before. Accordingly pit size must have increased and roads widened over the period. Alternatively another area taken for illegal mining. From records it is not clear whether any effort was made to catch the Revisionist red handed and to effect seizures of trucks/stocks or machineries etc. Whether there is any proposal also to raise demand for period beyond 24.09.09. The impugned Proceedings and State Govt. s reply/ submissions are silent on this aspect as well. 32.7. In its report dt. 09.12.09, IBM has made observations that production has been rather lower (than mining plan). This contracts the allegation/findings of State Govt. it observes: Production is lower side than proposed due to lack of forest clearance. Revisionist contends that recovery of saleable ore is 26,57,031 MT which amounts to 62% of recovery. It is lower than the norm 70% fixed in the approved mining plan. From scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faulted and there was nothing wrong on the part of the Revisional Authority to decide the same on merit and thereafter quash the proceeding after affording opportunity of hearing to the parties. 26. Proceeding then to examine the correctness of the findings of the Revisional Authority on the shortage of minerals, the answer has been recorded that in the facts and circumstances as projected the finding so recorded by the Revisional Authority is perfectly justified and does not warrant interference. Having said so, the Hon ble Division Bench of this Court concurring with the findings of the Revisional Authority, has finally dismissed the writ application on 08.08.2016. With this final curtain has been drawn in that matter initiated by the Government in the Department of Steel and Mines carrying no any further action upon the petitioner no.2-Lessee has been taken as to mining operation, dispatch of minerals etc which is continuing all along. 27. In a number of judgments, the Hon ble Apex Court have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi and Bombay. There was another firm, M/s. Young India and Transport Company wherein the minor children of the appellant and two of his employees were partners. The firm was said to be not a genuine one and the instrument of partnership was attacked therein as invalid and inoperative. The appellant thus faced proceeding under section 147 and 148 of the Income Tax Act and his assessment was reopened and finally with his income, the income of M/s. Young India and Transport Company was added. The statement made by the appellant in the verification to the return being then said to be false being known to the appellant, prosecution was launched and the complaint by the authorized authority was filed. Meanwhile, in the appeal before the Income Tax Appellate Tribunal, the order of the Assessing Officer was set aside holding that the premises upon which the assessing authority has concluded that the business run in the name of M/s. Young India and Transport Company belonged to the assessee i.e. G.L. Didwania are erroneous and not acceptable. This when attained finality, the appellant moved for dropping the prosecution. The learned Magistrate rejected the prayer saying that the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court of law. In the above state of the affair, the appellant filed an application for dropping the criminal proceeding inter alia contending that on the same allegation, the adjudication proceedings having been dropped and he has been exonerated therefrom, his continued prosecution is an abuse of process. The trial court repelled the contention and rejected the petition filed in that behalf. The High Court being approached also did not countenance with the contention. It then observed as under:- Therefore, the contention of Mr. Ghosh is unacceptable that in the adjudication proceedings being held by the Department concerned, the allegations against the petitioner having not been found established the prosecution against him before a court of law cannot have any legs to stand upon, since the same departmental authority which held the enquiry against him and found no materials for establishing his guilt cannot be expected to lodge the prosecution on the self same allegations against that person before a court and cannot be expected to take a different stand on the self same materials as available against him on the record. The Hon ble Apex Court having discussed the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Apex Court have culled out the ratio of those decisions in paragraph 38 which are reproduced herein below:- 38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, the learned Special Judge decided not to proceed against the appellant for trial of said offence(s) under the P.C. Act. Next holding that there was no need for sanction under section 197 of the Code; finding in the facts of the case that a prima facie case for the offences under IPC was made out against the appellant therein, the learned Special Judge refused to discharge the appellant from said offences. The High Court found itself in agreement with the learned Special Judge that there was no need for sanction under section 197 Cr.P.C. The High Court then considered an order of Central Vigilance Commission (CVC) dated 22.12.2011 which had gone into the facts of the case in great detail and concurred with the Competent Authority that on merits no sanction ought to be accorded and no offence under the IPC was in fact made out. The report of the CVC which had been strenuously pressed into service for the purpose of discharge, the High Court brushed aside the same stating in the context:- 25. The Central Vigilance Commission could not have come to the aforementioned conclusion unless there was evidence to do so. This submission of the learned counsel is unfounded. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir critical analysis and keeping in view the rival contentions advanced before it, has held that all those very factual aspects as alleged/ projected in the charge-sheet for trial of the petitioners which form the foundations of the proceedings under challenge are not acceptable. The Hon ble Division Bench of this Court has concurred with those categorical findings as to shortage of minerals as on the date of inspection of the mines and the sustainability of the allegations relating to lifting of minerals outside the leasehold area, dispatch and sale by the petitioners. Fact remains that they have been continuing to operate the mines, dispatch and sale under due authority. Thus the present case is not the one where it could be said that the order of the Revisional Authority in quashing the proceedings on the same set of facts, which form the foundations of this criminal case is based on technical grounds or by giving benefit of doubt wherein the merits have not been touched upon and examined and that only on such above stated grounds, the Hon ble Division Bench of this Court have refused to interfere in the writ filed by the State. Applying thus the aforestated principles as se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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