Pradeep S Wodeyar Vs State Of Karnataka

Pradeep S Wodeyar Vs State Of Karnataka

Citation                    REFERENCE: LL 2021 SC 691
Court                        Supreme Court of India

Case Type                Reference 

Petitioner                 Pradeep S Wodeyar

Respondent              State of Karnataka 

Bench                    Justice DY Chandrachud, Justice Vikram Nath and Justice BV Nagaratha

Referred                Sections of CrPC 209, 193, 460, 461.465

FACTS OF THE CASE
A Single Judge of the High Court of Karnataka dismissed two petitions instituted by the appellants for quashing the criminal proceedings initiated against them in Special CC No.599/2015 (arising out of Crime No.21/2014) for offences punishable under the provisions of Sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and Regulation) Act 19571 and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969.

Pradeep S. Wodeyar, who is the Managing Director of a Company by the name of Canara Overseas Limited is arraigned as the first accused and is the appellant in the appeal arising out of SLP (Criminal) No 138/2021. Lakshminarayan Gubba, who is a director of the said company has been arraigned as the second accused and is the appellant in the appeal arising out of SLP (Criminal) No.1448/2021.

The overview of the criminal case:

On 1 June 2009, Canara Overseas Limited, a Company dealing in exports and imports is alleged to have entered into an agreement with K. Ramappa, the third accused, who is the owner of Mineral Miners and Traders, Bellary for the purpose of exporting iron ore. In pursuance of the agreement, the company purchased 31,650.65 metric tons (MTs) of iron ore from A-3, of which 20,000 metric tons were exported to China between the periods of 1 January 2009 to 31 May 2010, while the remaining iron ore was sold to two other companies in India. These transactions are alleged to have been carried out through, or at Belekere Port in Karnataka. It has been alleged that the transportation and export of iron ore was carried out in the absence of permits from the Forest Department and the Department of Mines and Geology. The iron ore involved in the transactions is alleged to have been removed from the Mining Lease No.921/2553, Kallahari Village, and Bellary. The fourth Accused is allegedly the mine owner while the fifth accused is their agent. The iron ore is alleged to have been stocked in an unauthorized stockyard without bulk permits from the department of Mines and Geology and to have been transported without an authorized forest way pass. Acting in conspiracy, the accused are alleged to have caused a loss of Rs.3, 27, 83,379/- to the state exchequer.

Persistent complaints were made on large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. Samaj Parivartna Samudaya filed a Petition7 under article 32 before this Court regarding illegal mining in the forest areas in Andhra Pradesh and Karnataka. The Central Empowered Committee , pursuant to an order of this Court dated 19 November 2010 submitted a report on 7 January, 2011 regarding six mining leases in the Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This Court by an order dated 25 February 2011 directed the CEC to submit its report in respect of the allegations of illegal mining in Karnataka. Pursuant to the order, the CEC filed five reports on illegal mining. Following the submission of the report of the CEC dated 3 February 2012 raising concerns over illegal mining, transportation, sale and export of iron ore in the districts of Bellary, Chitradurga and Tumkur, directions were issued by his Court on 16 September 2013 for an investigation by the CBI. The purport of the directions of this Court was as follows:

1. CBI was permitted to register criminal cases against those exporters in respect of whom a preliminary enquiry had been conducted, involving export of more than 50,000 MTs of iron ore without valid permits;
2. CBI was permitted to refer the cases of exporters who had exported less than 50,000 MTs and had not been enquired in the preliminary enquiry (PE), to the Government of Karnataka for taking necessary action in accordance with relevant laws;
3. CBI was permitted to refer to the Government of Karnataka for initiating action against exporters who had been enquired into in the PE and had exported less than 50,000 MTs of iron ore without valid permits; and
4. The Government of Karnataka was directed to take action under relevant law as recommended by the CEC in its report dated 5 September 2012 with regard to those exporters who had exported less than 50,000 MTs and report compliance.

On 22 November 2013, the Government of Karnataka entrusted the above cases in terms of the orders of this Court for further investigation and criminal proceedings to the Lokayukta Police. On 21 January 2014, the state government issued a notification authorizing several officers, including the Inspector of Police, as ‗authorized persons‘ for the purpose of sub-sections (3) and (4) of Section 21 and Section 22 of the MMDR Act and Ru Rules 43(3) and 46 of the Karnataka Minor Mineral Concession Rules, 1994. On 24 January 2014, the Government of Karnataka constituted a Special Investigation Team9 in the Karnataka Lokayukta for investigation of illegal mining among other purposes. The SIT included the Inspector of Police. On 29 May 2014, the Home Department of the Government of the Karnataka declared, in pursuance of Section 2(s) of the Criminal Procedure Code,10 that the office of the Inspector General of Police, SIT, Karnataka Lokayukta shall be a police station for the purpose of the said clause and, power and jurisdiction in respect of the offences of illegal mining of minerals/minor minerals as defined in Section 3 of the MMDR Act was conferred.

On 9 October 2014, an FIR was registered in the first case (Crime No.21/2014) against the following accused:

1. G. Lakshminarayan Gubba, Managing Director, Canara Overseas Private Limited;
2.  Canara Overseas Private Limited;
3. K. Ramappa, owner of M/s Mineral Miners and Traders; and
4.   Unknown Government Officials and unknown private persons.

A final report under Section 173 of the CrPC was submitted on 17 December 2015 against:

1. Canara Overseas Limited represented by Sri Pradeep S. Wodeyar, Managing Director (A-1);
2.  Lakshminarayana Gubba (A-2);
3.  K. Ramappa (A-3);
4. Smt. Shanthalakshmi Jayaram (A-4); and
5.  J. Mithileshwar (A-5)

On 29 December 2015, the Deputy Registrar, City Civil Court, Bengaluru passed the order noting that the charge-sheet was submitted on 17 December 2015.

On 30 December 2015, the 23rd Additional City Civil Sessions Judge and Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance after perusing the final report. A direction was also issued for the registration of the case against the accused persons and for issuance of summons.

On 20 March 2017, proceedings were instituted before the High Court under Section 482 CrPC for quashing the criminal proceedings initiated against the appellants. The appellants sought the quashing of the criminal proceedings on the following grounds:

1. A-1 was not involved in the alleged illegal transaction. He was residing in Indonesia at the relevant point of time. The affairs of the company were managed by A-2;
2. According to the agreement entered into for the transaction, the responsibility of obtaining the dispatch permit from the concerned Department of Mines and Geology and to transport the same was on the A-3. Therefore, A-2 could not be prosecuted for procuring iron ore without the permit;
3.  The order of the Special Judge taking cognizance does not mention the offences for which cognizance was taken. Therefore, the cognizance order reflects non-application of mind; and
4.  The Special Judge did not have the power to take cognizance of offences under the MMDR Act without a complaint by the authorized officer in view of Section 22 of the MMDR Act.

The High Court by its judgment dated 12 November 2020 dismissed the quashing petitions filed by Pradeep S. Wodeyar (A-1) and Lakshminarayan Gubba (A-2).

SLP (Criminal) No.138/2021 and SLP (Criminal) No.1448/2021 were instituted under Article 136 of the Constitution to challenge the judgment of the High Court. In the appeal arising out of the companion SLP the appellant is the proprietor of a concern by the name of TBS Logistics which is involved in the business of buying, selling and exporting iron ore. The case of the prosecution is that the appellant entered into a criminal conspiracy with other accused persons, for purchasing and selling extracted iron ore illegally without mining dispatch permits and the payment of charges to the Mining and Geological Departments and the Forest Department. On 9 October 2014, Crime case No.23/2014 was registered with the police investigation team, Karnataka Lokayukta Bengaluru for offences punishable under Sections 409, 420 and 471 read with 120B of the IPC, Sections 21 and (4)(1)(A) of the MMDR Act, 1957 and Rules 144 and 165 of the Karnataka Forest Rules, 1959. A charge sheet was submitted on 24 November 2015. The Special Judge took cognizance on 30 December 2015. The appellant instituted a petition under Section 482 CrPC for quashing the criminal proceedings. The petition was dismissed by the High Court on 18 November 2020.

ISSUES OF THE CASE

• Whether the Special Court had the jurisdiction to take the cognizance of the offences?
•  Whether the irregularity in cognizance of offences vitiates the proceedings?

ARGUMENTS OF THE CASE

Issue 1

The counsel for the appellant contended that the Special Court (which is a Sessions Court) is not empowered to take cognizance of offences without the case being committed to it, in view of Section 193 CrPC. Since the Magistrate did not commit the case to the Special Court before it took cognizance of the offences in the instant case, it has been contended that the order taking cognizance is vitiated. As stated in the earlier section of the judgment, Section 193 is subject to two exceptions-

 (a) Provisions to the contrary under the CrPC;

 (b) Provisions to the contrary under any other law

Reference was made to Section 36A (1) (d) of the National Drugs and Psychotropic Substances Act 1985, Section 5 of the Prevention of Corruption Act 1988 and Section 16(1) of the National Investigation Agency Act 200814 which specifically empower the Special Court to take cognizance of offences without the accused being committed to it for trial. It was contended that since neither the Code nor the statute specifically empower the Special Court to take cognizance of the offence without committal, the exercise of power by the Special Court to take cognizance is without jurisdiction.

The decision of a two judge Bench in Gangula Ashok v. State of AP arose out of a complaint lodged under the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 against the appellants. The police filed a charge-sheet upon investigation directly before the Sessions Court. The Sessions Court is designated as a Special Court for trial of offences under the Act. Charges were framed by the Special Judge. The High Court was moved for quashing the charges and the charge sheet. The Single Judge held that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it and accordingly set aside the proceedings.

After analysing the provision of Sections 4(2) and 193 of the CrPC this Court observed that there is no express provision by which the Special Court can take cognizance of the offence without committal; nor can this be inferred. It was further observed that since the Sessions Court is placed higher in the hierarchical court structure, the legislature intentionally relieved it from performing preliminary formalities.

Consequently, it was held that a Special Court under the SC and ST Act is essentially a court of Sessions and it cannot take cognizance of the offence without the case being committed to it by the Magistrate in accordance with the provisions of the CrPC. In other words, the complaint or a charge sheet could not straightway be laid down before the Special Court. In this backdrop, this Court upheld the view of the High Court setting aside the proceedings initiated by the Special Court.

Issue II

The general principle which is embodied in Section 465 CrPC is that a finding or order is not reversible due to irregularities unless a ‗failure of justice ‘is proved. Subsection (2) of Section 465 provides that while determining whether there has been a failure of justice, the appellate Court shall have regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding. The observation in Rattiram (supra) distinguishing Gangula Ashok (supra) on the basis of the stage of the trial thus takes its support from Section 465(2) of the Code where a classification is sought to be made on the basis of the challenge vis-à-vis the stage of the proceedings.

Section 465 stipulates that the order passed by a Court of competent jurisdiction shall not be reversed or altered by a Court of appeal on account of an irregularity of the proceedings before trial or any inquiry. It is settled law that cognizance is pre-trial or inquiry stage.25 Therefore, irregularity of a cognizance order is covered by the provision. In order to determine if the provision applies to pre-trial orders like an irregular cognizance order or only applies to orders of conviction or acquittal.

Chapter XXXV of the CrPC is titled Irregular Proceedings, Section 460 on the one hand provides for those irregularities if any, on the part of a Magistrate which do not vitiate proceedings. Section 461 on the other hand, contains a list of proceedings by the Magistrate who is not empowered by law in this behalf, which would vitiate the proceedings. Clause (e) of Section 460 relates to the taking of cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190 CrPC. Clause (a) of section 190(1) refers to the receipt of a complaint of facts constituting an offence and clause (b) refers to a police report of the facts. Consequently, where a Magistrate who is not empowered by law takes cognizance of an offence either under clause (a) or clause (b) of Section 190(1) erroneously though in good faith, the proceedings will not be set aside merely on the ground that the Magistrate was not so empowered In other words, for vitiating the proceedings, something more than a mere lack of authority has to be established. Clause (k) of Section 461 adverts to a situation where a Magistrate who is not empowered takes cognizance of an offence under clause (c) of Section 190(1). Section 190(1)(c) empowers the Magistrate to take cognizance upon information received from a person other than a police officer or upon his own knowledge. The taking of cognizance under Section 190(1)(c) by a Magistrate who is not empowered, renders the proceedings void.

Section 462 relates to proceedings being taken in a wrong place; Section 463 with the non-compliance of the provisions of Section 16428 or Section 28129 and Section 464 with the effect of an omission to frame, or absence of or error in a charge. Section 465 deals with irregularity of ―the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial.

The overarching purpose of Chapter XXXV CrPC, as is evident from a reading of Sections 460 to 466, is to prevent irregularities that do not go to the root of the case from delaying the proceedings. Sections 462-464 lay down specific irregularities which would not vitiate the proceedings. Section 465 on the other hand is a broad residuary provision that covers all irregularities that are not covered by the above provisions. This is evident from the initial words of Section 465, namely, ―Subject to the provisions hereinabove contained. Therefore, irregular proceedings that are not covered under Sections 461-464 could be covered under Section 465. It is also evident that the theme of ‗failure of justice‘, uniformly guides all the provisions in the Chapter. There is no indication in Section 465 and in Sections 462-464 that the provisions only apply to orders of conviction or acquittal. . All the provisions use the words ―finding, sentence or order‖. Though one of the major causes of judicial delay is the delay caused from the commencement of the trial to its conclusion, there is no denying that delay is also predominantly caused in the pre-trial stage. Every interlocutory order is challenged and is on appeal till the Supreme Court, on grounds of minor irregularities that do not go to the root of the case. The object of Chapter XXXV of the CrPC is not only to prevent the delay in the conclusion of proceedings after the trial has commenced or concluded, but also to curb the delay at the pre-trial stage. It has been recognized by a multitude of judgments of this Court that the accused often uses delaying tactics to prolong the proceedings and prevent the commencement or conclusion of the trial. The object of Chapter XXXV is to further the constitutionally recognized principle of speedy trial. This was highlighted by Justice Jeevan Reddy while writing for a two judge Bench in Santhosh De v. Archana Guha where the learned judge observed:

 The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior Courts and the superior Courts, we are pained to say, are falling prey to their stratagems. We expect the superior Courts to resist all such attempts. Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind Section 465 Cr. P.C. That any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself, because such frequent interference by superior Court at the interlocutory stages tends to defeat the ends of Justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.

Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure. This interpretation is supported by sub-section (2) to Section 465 which states that while determining if the irregularity has occasioned a failure of justice, the Court shall have regard to whether the objection could or should have been raised at an earlier stage in the proceeding. Therefore, the very fact that the statute provides that the Court is to consider if the objection could have been raised earlier, without any specific mention of the stage of the trial, indicates that the provision covers challenges raised at any stage. The Court according to sub-Section (2) is to determine if the objection was raised at the earliest.

JUDGMENT

The Court rightly observed that the purpose of Chapter XXXV CrPC is to ensure that all such irregularities, which do not relate to the case’s root, are not used as a tool for delaying the proceedings. The Court stated that judicial delay is predominantly caused as every interlocutory order is appealed till the Apex Court, even where the order was based on minor irregularities which are insignificant and unrelated to the roots of the case. Where irregularities can be rectified or where the irregularities have not caused a failure of justice, then such irregularities cannot vitiate the proceedings as it would lead to inordinate delays in disposal of cases. The Courts must discourage unscrupulous attempts to cause delays in the pre-trial stage.

written by Simrah khan, University of Kashmir, intern under legal vidhiya.

Admin