Samaj Parivartan
Samudaya & Ors. Vs. State of Karnataka & Ors.
[Ia No. Of 2012 in
Writ Petition (Civil) No. 562 of 2009]
O R D E R
Swatanter Kumar, J.
1.
By
this order we will deal with and dispose of, the recommendations made by the
Central Empowered Committee (for short, ‘CEC’) in its report dated 20th April,
2012. Since we have heard the affected parties, the petitioners and the learned
Amicus Curiae, we shall summarize the contentions of the learned counsel for
the respective parties. The learned counsel appearing for the affected parties
contended :
a. CEC has submitted its
report without providing them an opportunity of being heard.
b. CEC has exceeded its
jurisdiction and enlarged the scope of the enquiry beyond the reference made by
the Court. Thus, the Court should not accept any of the recommendations made by
the CEC.
c. In relation to the
alleged irregularities and illegalities pointed out in the report of the CEC,
even where criminality is involved or criminal offences are suspected, the
matters are sub judice before the Court of competent jurisdiction. Thus, this
Court should not pass any orders for transferring the investigation of such
offences to the Central Bureau of Investigation (for short ‘CBI’) as it would seriously
prejudice their interests.
2.
In
order to deal with these contentions, it is necessary for this Court to briefly
refer to the background of these cases, which has resulted in the filing of the
unnumbered IA in Writ Petition No. 562/2009 and the peculiar facts and circumstances
in which the CEC has made itsrecommendations.
3.
Concerned
with the rampant pilferage and illegal extraction of natural wealth and
resources, particularly iron ore, and the environmental degradation and
disaster that may result from unchecked intrusion into the forest areas, this
Court felt compelled to intervene. Vide its order dated9th September, 2002 in
T.N. Godavarman Thirumalpad v. Union of India & 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 affore station,
plantations and other conservation issues. In furtherance to the said order,
the Government framed a notification in terms of Section33 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 9thSeptember, 2002. After approval,
the Court directed that a formal notification will be issued within a week and the
functions and responsibilities given to the CEC were to be exercised by the said
Statutory Committee. In fact, this Notification was issued on 17thSeptember,
2002.
4.
It
may be noticed here that, it was in furtherance to the order of the Government
of Andhra Pradesh vide G.O.M No. 467, Home (SCA) Dept. dated17th November,
2009, supplemented by Notification No. 228/61/2009-AVD-11dated 1st December,
2009 issued by the Central Government, that the CBI was directed to register a
case against the Obulapuram Mining Company (OMC).Earlier the CBI had registered
a case against the OMC on 7th December, 2009and started the probe. This
probably came to be stayed by the High Court vide its order dated 12th
December, 2009 which stay was vacated by another order of that Court on 16th
December, 2010 paving the way for a full-fledged probe. As a result of vacation
of the stay, the CBI continued itsinvestigation.
5.
The
CBI also filed a charge-sheet in a special court against the OMC, in an illegal
mining case falling within the State of Karnataka, charging the accused under
Sections 120B, 409, 420, 468 and Section 471 of the Indian Penal Code, 1860
(for short ‘IPC’) read with the provisions of the Prevention of Corruption Act,
1988. The case against the OMC for illegal mining was under investigation in
respect of the areas of Obulapuram and Malangapudi villages of Anantpur
district in the State of Andhra Pradesh and in the rest of the State of Andhra
Pradesh.
6.
Further,
the State of Andhra Pradesh vide its G.O. Rt. No. 723 dated25th November, 2009,
issued by the Industrial and Commercial Department, suspended the mining
operations and also the transportation of mineral material by OMC and even
other implicated companies, on the basis of the findings of a High Level Committee,
headed by the Principal Chief Conservator of Forests, Hyderabad and the Report
of the CEC submitted tothis Court in I.A. No. 2/2009 in Writ Petition (Civil)
No. 201 of 2009, acopy of which was forwarded to the State Government. This was
challenged before the High Court of Andhra Pradesh which, vide judgment dated 26thFebruary,
2010, set aside the notification and allowed the writ petitions, while holding
that the G.O. issued by the Government suffered from a jurisdictional error and
was in violation 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 2010on 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 2009 and has prayed
for issuance of a writ of mandamus or any other appropriate writ, order or direction
to the respective State Governments and to the Union of India, to stop all mining
and related activities in the forest areas of these two States. It furthers ought
that the orders passed by this Court in the W.P.(C) No. 202 of 1995be carried
out and the provisions of the Forest Conservation Act, 1980 be implemented. It
also prayed for cancelling of the ‘raising contracts’ or sub-lease executed by
the Government of Karnataka in favour of the various private individuals and
allowing back-door entry into the mining activity in those areas. The most
significant prayer in this petition was that after stopping of the mining
activity, a systematic survey of both the inter-state border between the States
of Andhra Pradesh and Karnataka and mine lease areas along the border be conducted
and proper Relief and Rehabilitation Programmes (for short ‘RR Programmes’) be
implemented.
8.
All
the above cases, i.e., W.P.(C) No. 202/1995, 562/2009 and SLP(C)No.
7366-7367/2010, relate to protection of environment, forest areas, stoppage of
illegal mining and cancellation of illegal sub-leasing and contracts executed
by any State Government in favour of the third parties, to the extent such
contracts are invalid and improper. The latter cases, Writ Petition (Civil) No.
562 of 2009 and SLP(C) Nos. 7366-7367 of 2010concern the Bellary Forest Reserve.
Further, there were serious allegations raised in these petitions as to how and
the manner in which the leases were executed and mining permits were granted or
renewed for carrying out the mining activities stated in the petition.
9.
The
CEC was required to submit quarterly reports, which it has been submitting and with
the passage of time, large irregularities and illegalities coupled with
criminality were brought to the notice of this Court. The CEC, in discharge of
its functions and responsibilities, was examining the matters, in both the
States of Andhra Pradesh and Karnataka. These violations have come to the surface
as a result of enquiries conducted by the CEC, regarding illegal mining and mining
beyond their leased areas by these companies. It was pointed by the CEC with specific
efference to these companies that there was not only illegal extraction of iron
ore but the minerals was being also extracted beyond the leased area specified
in the lease deeds. Further, there was unchecked export of ironore 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, 2011permitted 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 September, 2011,
this Court accepted various recommendations of the CEC and noticed that prima facie
it appears that at the relevant time, there existed linkage between the alleged
illegal mining in the Bellary Reserve Forest, falling in the District Anantpur in
Andhra Pradesh and the illegalities in respect of grant/renewal of mining leases
and deviations from sanctioned mine sketch in the Bellary District in Karnataka.
The Court also noted that illegally extracted iron ore belonging to one M/s. Associated
Mining Company (for short “AMC”) was apparently routed through the nearest Port
in Vishakhapatnam, through district Anantpur in Andhra Pradesh. Thus, the Court
felt that the CBI should examine the alleged illegalities. Vide the same order,
this Court required the CBI to additionally present a status report of investigations
which the CBI had undertaken in respect of OMC in Andhra Pradesh under FIR No.
17A/2009-CBI(Hyderabad). It was also reported that there was massi veil legal
mining by third parties in the mining lease No. 1111 of one M/s. National
Minerals Development Corporation (NMDC). It was suspected that one M/s. Deccan
Mining Syndicate (for short “DMS”) was involved in such activities and no
action had been taken on the complaints of NMDC. Some other directions were
also issued including directions for further inquiry by the CEC and the CEC was
required to put up a comprehensive report before this Court.
11.
In
the meanwhile, an application was filed by the petitioners of writ petition
No.562 of 2011 which remained un-numbered. The prayer in this application was
to extend the scope of investigation by the CBI relating to illegal mining and
other allied activities which the politicians and major corporate groups
including M/s. Jindal Group and M/s. Adanis were indulging in, within the State
of Karnataka. They also prayed that both the States should also be directed
demarcate the inter-state boundaries, particularly, in the mining area.
12.
After
examining the issues raised in the IA, the earlier orders of this Court and
based on the meetings held by the CEC on 20th March, 2012and 11th April, 2012, respectively,
the CEC identified the issues asfollows:- i) The alleged serious illegalities/
irregularities and undue favour in respect of (a) the land purchased by the close
relatives of the then Chief Minister, Karnataka for 0.40 crore in the year 2006
and subsequently sold to M/s South West Mining Limited in the year 2010 for Rs.20.00
crores and (b) donation of Rs.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.
”13.
The CEC filed two comprehensive reports before this Court, one dated20th 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 within 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.
“15.
Keeping in view the above facts and circumstances the CEC is of the considered
view that the purchase of the above said land notified for acquisition for public
purpose, its de- notification from acquisition, permission granted for
conversion from agriculture to non-agricultural (residential) purpose and subsequent
sale to M/s South West Mining Limited prima facie involves serious violations
of the relevant Acts and procedural lapses and prima facie misuse of office by the
then Chief Minister, Karnataka thereby enabling his close relatives to make windfall
profits and raises grave issues relating to undue favour, ethics and morality. Considering
the above and taking into consideration the massive illegalities and illegal mining
which have been found to have taken place in Karnataka and the allegations made
against the Jindal Group as being receipient of large quantities of illegally
mined material and undue favour being shown to them in respect of the mining
lease of M/s MML it is RECOMMENDED that a detailed investigation may be
directed to be carried out in the matter by an independent investigating agency
such as the Central Bureau of Investigation (CBI) and to take follow up action.
This agency may be asked to delve into the matter in depth and in a time bound
manner. This agency may also be directed to investigate into other similar cases,
if any, of lands de-notified from acquisition by the Bangalore Development
Authority and the illegalities / irregularities / procedural lapses, if any,
and to take follow up action.
16.
The
Prerna Education Society set up by the close relatives of the then Chief
Minister, Karnataka has during March, 2010 vide two cheques of Rs.5.0 crores
each received a donation of Rs.10 crores from M/s South West Mining Limited, a
Jindal Group Company. In this context, it is of interest to note that during the
year 2009-2010 the net profit (after tax) of the said Company was only Rs.5,73
crores. Looking into the details of the other donations made by the said
Company or by the other Jindal Group Companies to any other Trust / Society not
owned, managed or controlled by the Jindal Group. After considering that a
number of allegations, with supporting documents, have been made in the Report dated
27th July, 2011 of Karnataka Lokayukta regarding the M/s. JSW Steel Limited having
received large quantities of illegal mineral and alleged undue 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 Rs.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 Rs.2.50 crores to M/s Bhagat Homes
Private Limited and the other of Rs.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 investigate the payments made by the above said lessee to
these two companies whose Directions / shareholders are the close relatives of the
then Chief Minister, Karnataka and whether there was any link between such
payments and grant of mining lease to Mr. Parveen Chandra.”15. When we heard
the parties to the lis and even permitted the affected parties as interveners,
the hearing had been restricted to the Report of the CEC dated 20th April, 2012.
Therefore, presently, we are passing directions only in relation to that
Report, while postponing the hearing of the second Report which is dated 27th
April, 2012.16. In the backdrop of the above events of the case, reference to certain
relevant provisions of the Criminal Procedure Code, 1973 (Cr.P.C.) can now be
appropriately made, before we proceed to deal with the above noticedcontentions.17.
The machinery of criminal investigation is set into motion by the registration
of a First Information Report (FIR), by the specified police officer of a
jurisdictional police station or otherwise. The CBI, interms of its manual has
adopted a procedure of conducting limited pre-investigation inquiry as well. In
both the cases, the registration of the FIR is essential. A police
investigation may start with the registration of the FIR while in other cases
(CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter
regular investigation may begin in accordance with the provisions of the CrPC. Section
154 of the CrPC places an obligation upon the authorities to register the FIR of
the information received, relating to commission of a cognizable offence, whether
such information is received orally or in writing by the officer in-charge of a
police station. A police officer is authorised to investigate such cases
without order of a Magistrate, though, in terms of Section 156(3) Cr.P.C. the Magistrate
empowered under Section 190 may direct the registration of a case and order the
police authorities to conduct investigation, in accordance with the provisions of
the CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature
of a pre-emptory reminder or intimation to police, to exercise their plenary
power of investigation under that Section. This would result in a police report
under Section 173, where after the Magistrate may or may not take cognizance of
the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial
discretion, upon receipt of a complaint to take cognizance directly under Section
200 CrPC, or to adopt the aboveprocedure. [Ref. Gopal Das Sindhi & Ors. v.
State of Assam & Anr. [AIR 1961SC 986]; Mohd. Yusuf v. Smt. Afaq Jahan
& Anr. [AIR 2006 SC 705]; and MonaPanwar v. High Court of Judicature of Allahabad
Through its Registrar &Ors. [(2011) 3 SCC 496].
18.
Once
the investigation is conducted in accordance with the provisions of the CrPC, a
police officer is bound to file a report before the Court of competent
jurisdiction, as contemplated under Section 173 CrPC, 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) CrPC open with non-obstante language that nothing
in the provisions of Section 173(1) to 173(7) shall be deemed to preclude
further investigation in respect of an offence aftera report under sub-Section
(2) has been forwarded to the Magistrate. Thus, under Section 173(8), where
charge-sheet has been filed, that Court also enjoys the jurisdiction to direct
further investigation into the offence.{Ref., Hemant Dhasmana v. Central Bureau
of Investigation & Anr. [(2001) 7SCC 536]}. This power cannot have any
inhibition including such requirement as being obliged to hear the accused
before any such direction is made. It has been held in Shri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors. [JT 1999
(4) SC537] that the casting of any such obligation on the Court would only result
in encumbering the Court with the burden of searching for all potential accused
to be afforded with the opportunity of being heard.
19.
While
the trial Court does not have inherent powers like those of the High Court
under Section 482 of the CrPC or the Supreme Court under Article136 of the
Constitution of India, such that it may order for completer investigation or
fresh investigation of a case before it, however, it has substantial powers in
exercise of discretionary jurisdiction under Sections311 and 391 of CrPC. In
cases where cognizance has been taken and where a substantial portion of
investigation/trial have already been completed and where a direction for
further examination would have the effect of delaying the trial, if the trial
court is of the opinion that the case has been made out for alteration of
charge etc., it may exercise such powers without directing further
investigation. {Ref. Sasi Thomas v. State & Ors.[(2006) 12 SCC 421]}. Still
in another case, taking the aid of the doctrine of implied power, this Court
has also stated that an express grant of statutory power carries with it, by
necessary implication, the authority to use all reasonable means to make such statutory
power effective. Therefore, absence of statutory provision empowering Magistrate
to direct registration of an FIR would not be of any consequence and the Magistrate
would nevertheless be competent to direct registration of an FIR. {Ref.Sakiri
Vasu v. State of Uttar Pradesh & Ors. [(2008) 2 SCC 409]}.
20.
Thus,
the CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary
charge sheet, 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
CrPC to theCourt.
21.
To
put it aptly, further investigation by the investigating agency, after
presentation of a challan (charge sheet in terms of Section 173 CrPC)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 CrPC, whereupon the Magistrate shall
follow the procedure provided under Sections200 to 203 or 204 to 210 under
Chapter XV and XVI of the CrPC.
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 is burdened with the onus of establishing the offence
and he has to lead evidence before the Court to establish the guilt of the
accused. The rule of establishing the charges beyond reasonable doubt is applicable
to a complaint case as well.
24.
The
important feature that we must notice for the purpose of the present case is
that even on a complaint case, in terms of Section 202, the Magistrate can
refer the complaint to investigation by the police and call for the report
first, deferring the hearing of the complaint till then. Section 210 CrPC is
another significant provision with regard to the powers of the Court where
investigation on the same subject matter is pending. It provides that in a
complaint case where any enquiry or trial is pending before the Court and in
relation to same offence and investigation by the Police is in progress which
is the subject matter of the enquiry or trial before the Court, the Magistrate
shall stay the proceedings and await the report of the investigating agency. Upon
presentation of the report, both the cases on a Police report and case
instituted on a complaint shall be tried as if both were instituted on a Police
report and if the report relates to none of the accused in the complaint it
shall proceed with the enquiry/trial which had been stayed by it. The section proceeds
on the basis that a complaint case and case instituted on a police report for the
commission of the same offence can proceed simultaneously and the Court would
await the Police report before it proceeds with the complaint in such cases. The
purpose again is to try these cases together, if they are in relation to the same
offence with the intent to provide a fair and effective trial. The powers of
the trial court are very wide and the legislative intent of providing a fair trial
and presumption of innocence in favour of the accused is the essence of the
criminal justice system.
25.
The
Court is vested with very wide powers in order to equip it adequately to be
able to do complete justice. Where the investigating agency has submitted the charge
sheet before the court of competent jurisdiction, but it has failed to bring all
the culprits to book, the Court is empowered under Section 319 Cr.P.C. to proceed
against other persons who are not arrayed as accused in the charge sheet itself.
The Court can summon such 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 charge sheet 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 that the guilty
are punished. At this stage, we may appropriately refer to the judgment of this
Court in the case of Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1
SCC 441] wherein an investigation was being conducted into wrongful
appointments to Panchayat and other posts by the Police Department of the
State. However, later on, these were converted into a public interest
litigation regarding larger corruption charges. The matter was sought to be
referred for investigation to a specialised agency like CBI. The plea taken was
that the Special Judge was already seized of the case as charge sheet had been
filed before that Court, and the question of referring the matter for
investigation did not arise. The High Court in directing investigation by the
CBI had exceeded its jurisdiction and assumed the jurisdiction of the Special
Judge. The plea of prejudice wasalso raised. While rejecting these arguments,
the appeals were dismissed and this Court issued a direction to the CBI to investigate
and file the charge sheet before the Court having appropriate jurisdiction over
the investigation. The reasoning of the Court can be examined from paragraph 63to
65 of the said judgment, which reads as under:- “63. The High Court in this case
was not monitoring any investigation. It only desired that the investigation
should be carried out by an independent agency. Its anxiety, as is evident from
the order dated 3-4-2002, was to see that the officers of the State do not get
away. If that be so, the submission of Mr Rao that the monitoring of an investigation
comes to an end after the charge-sheet is filed, as has been held by this Court
in Vineet Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India, loses
all significance. 64. Moreover, it was not a case where the High Court had
assumed a jurisdiction in regard to the same offence in respect whereof the
Special Judge had taken cognizance pursuant to the charge- sheet filed. The
charge-sheet was not filed in the FIR which was lodged on the intervention of
the High Court. 65. As the offences were distinct and different, the High Court
never assumed the jurisdiction of the Special Judge to direct reinvestigation
as was urged or otherwise.
27.
”27.
Now, we shall proceed to examine the merit of the contentions raised before us.
We may deal with the submissions (a) and (b), together, as the yare
intrinsically 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 CrPC. The CEC is not conducting a regular
inquiry or investigation with the object of filing charge sheet as contemplated
under Section 173 CrPC. 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-judicial or even administrative functions, with a view to
determine any rights of the parties. It was not expected of the CEC to give
notice to the companies involved in such illegalities or irregularities, as it
was not determining any of their rights. It was simpliciter reporting matters
to the Court as per the ground realities primarily with regard to environment and
illegal mining for appropriate directions. It had made different recommendations
with regard to prevention and prosecution of environmentally harmful and illegal
activities carried on in collusion with government officers or otherwise. We
are of the considered view that no prejudice has been caused to the
intervenor/affected parties by non-grant of opportunity of hearing by the CEC. In
any case, this Court has heard them and is considering the issues independently.
29.
As
far as the challenge to the enlargement of jurisdiction by the CEC beyond the
reference made by the Court, is concerned, the said contention is again without
any substance. We have referred to the various orders of this Court. The ambit
and scope of proceedings before this Court, pending in the above writ petition
and civil appeal, clearly show that the Court is exercising a very wide
jurisdiction in the national interest, to ensure that there is no further
degradation of the environment or damage to the forests and so that illegal
mining and exports are stopped. The orders are comprehensive enough to not only
give leverage to the CEC to examine any ancillary matters, but in fact, place an
obligation on the CEC to report to this Court without exception and correctly,
all matters that can have a bearing on the issues involved in all these petitions
in both the States of Karnataka and Andhra Pradesh. Thus, we reject this contentionalso.
30.
Contention
(c) is advanced on the premise that all matters stated by the CEC are sub-judice
before one or the other competent Court or investigating agency and, thus, this
Court has no jurisdiction to direct investigation by the CBI. In any case, it
is argued that such directions would cause them serious prejudice.
31.
This
argument is misplaced in law and is misconceived on facts. Firstly, all the
facts that had been brought on record by the CEC are not directly sub-judice, in
their entirety, before a competent forum or investigating agency.
32.
In
relation to issue 1(a) raised 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 consideration ofRs.40 lacs and was sold after de-notification for a sum of
Rs.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 of2011,
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 (b) relates to the donation of Rs.20 crores
received by Prerna Education Society from M/s. South West Mining Ltd. The
society is stated to be belonging to the members of the family of the Chief
Minister Shri Yeddyurappa. The written submissions filed on behalf of M/s.
South West Mining Ltd., do not reflect that issue 1(a) and (b) of the CEC
report under consideration are directly and in their entirety are the subject matter
of any investigations in progress and proceedings pending before any competent forum.
These are merely informatory facts, supported by relevant and authentic documents,
highlighted by the CEC in its report for consideration of the Court. A suspect
has no indefeasible right of being heard prior to initiation of the investigation,
particularly by the investigating agency. Even, in fact, the scheme of the Code
of Criminal Procedure does not admit of grant of any such opportunity. There is
no provision in the CrPC where an investigating agency must provide a hearing
to the affected party before registering an FIR or even before carrying on
investigation prior to registration of case against the suspect. The CBI, as
already noticed, may even conduct pre-registration inquiry for which notice is not
contemplated under the provisions of the Code, the Police Manual or even as per
the precedents laid down by this Court. It is only in those cases where the
Court directs initiation of investigation by a specialized agency or transfer investigation
to such agency from another agency that the Court may, in its discretion, grant
hearing to the suspect or affected parties. However, that also is not an
absolute rule of law and is primarily a matter in the judicial discretion of
the Court. This question is of no relevance to the present case as we have
already heard the interveners.
33.
In
the case of Narmada Bai v. State of Gujarat & Ors. [(2011) 5 SCC79], this
Court was concerned with a case where the State Government had objected to the
transfer of investigation to CBI of the case of a murder of a witness to a fake
encounter. The CBI had already investigated the case of fake encounter and submitted
a charge sheet against high police officials. This Court analyzed the entire
law on the subject and cited with approval the judgment of the Court in the
case of Rubabbuddin Sheikhv. State of Gujarat [(2010) 2 SCC 200]. In that case,
the Court had declared the law that in appropriate cases, the Court is
empowered to handover 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 their subsequent murder as well as the
murder of the witnesses are one series off acts 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 toCBI.
34.
If
we analyse the above stated 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 events and unquestionable documents on
record to substantiate its recommendations.(b) The subsequent facts, inquiry
and resultant suspicion, therefore, are the circumstances for directing further
and specialized investigation.(c) The scope and ambit of present investigation
is much wider than the investigations/proceedings pending before the Court/investigating
agencies.(d) Various acts and transactions prima facie appear to be part of a same
comprehensive transaction.(e) The requirement of just, fair and proper investigation
would demand investigation by a specialized agency keeping in view the dimensions
of the transactions, the extent of money involved and manipulations alleged.
35.
To
give an example to emphasize that this is a case requiring further investigation
and is fit to be transferred to the specialized investigating agency, we may
mention that the South West Mining Ltd. was initially found to be a front
company of JSW Steels Ltd. Thereafter all transactions were examined and the
improper purchase of land and donations made by them came to light. These facts
appear to be inherently interlinked. Despite that and intentionally, we are not
dealing with the factual matrix of the case or the documents on record, in any
detail or even discussing the merits of the case in relation to the
controversies raised before us so as to avoid any prejudice to the rights of
the affected parties before the courts in various proceedings and investigation
including the proposed investigation.
36.
Now,
we shall proceed on the assumption that the illegalities, irregularities and
offences alleged to have been committed by the affected parties are the subject
matter, even in their entirety, of previous investigation cases, sub-judice
before various Courts including the writ jurisdiction of the High Court. It is
a settled position of law that an investigating agency is empowered to conduct further
investigation after institution of a charge-sheet before the Court of competent
jurisdiction. A magistrate is competent to direct further investigation in terms
of Section 173(8) Cr.P.C. in the case instituted on a police report. Similarly,
the Magistrate has powers under Section 202 Cr.P.C. to direct police
investigation while keeping the trial pending before him instituted on the
basis of a private complaint in terms of that Section. The provisions of
Section 210 Cr.P.C. 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 Cr.P.C. that
initiation of an investigation and filing of a charge sheet 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 notable to
misdirect or hijack the investigation so as to throttle a fair investigation
resulting in the offenders escaping the punitive course of law. It is the
inherent duty of the Court and any lapse in this regard would tantamount to
error of jurisdiction.
37.
In
the case of Rama Chaudhary v. State of Bihar [(2009) 6 SCC 346],this Court was
considering the scope of Sections 173(8), 173(2) and 319 of the CrPC in relation
to directing further investigation. The accused raised a contention that in
that case, report had been filed, charges had been framed and nearly 21
witnesses had been examined and at that stage, in furtherance to investigation
taken thereafter, if a supplementary charge-sheet is filed and witnesses are
permitted to be summoned, it will cause serious prejudice to the rights of the
accused. It was contended that the Court has no jurisdiction to do so. The Trial
Court permitted summoning and examination of the summoned witnesses in furtherance
to the supplementary report. The order of the Trial Court was upheld by the High
Court. While dismissing the special leave petition, a Bench of this Court observed
: “14. Sub-section (1) of Section 173 CrPC makes it clear that every investigation
shall be completed without unnecessary delay. Sub-section (2) mandates that as soon
as the investigation is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government mentioning the name
of the parties, nature of information, name of the persons who appear to be
acquainted with the circumstances of the case and further particulars such as
the name of the offences that have been committed, arrest of the accused and details
about his release with or without sureties. 15. Among the other sub-sections,
we are very much concerned about sub-section (8) of Section 173 which reads as
under: “173. (8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2) has
been forwarded to the Magistrate and, where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the provisions of
sub-sections (2) to (6) shall, as far as may be, apply in relation 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 above said 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 observed in Hasanbhai Valibhai Qureshi
v. State of Gujarat the prime consideration for further investigation is to arrive
at the truth and do real and substantial justice. The hands of the investigating
agency for further investigation should not be tied down on the ground of mere delay.
In other words “[t]he mere fact that there may be further delay in concluding
the trial should not stand in the way of further investigation if that would
help the court in arriving at the truth and do real and substantial as well as effective
justice.
38.
”38.
Reference can also be made to the judgment of this Court in the case of
National Human Rights Commission v. State of Gujarat & Ors. [(2009) 6SCC
342], wherein the Court was dealing with different cases pending in relation to
the communal riots in the State of Gujarat and the trial in one of the cases
was at the concluding stage. In the meanwhile, in another FIR filed in relation
to a similar occurrence, further investigation was being conducted and was
bound to have a bearing even on the pending cases. The Court, while permitting inquiry/investigation,
including further investigation, completed stayed the proceedings in the Trial
Court as well and held as under : “10. We make it clear that SIT shall be free to
work out the modalities and the norms required to be followed for the purpose of
inquiry/investigation including further investigation. Needless to say the sole
object of the criminal justice system is to ensure that a person who is guilty of
an offence is punished. 11. Mr K.T.S. Tulsi, learned Senior Counsel had submitted
that in some cases the alleged victims themselves say that wrong persons have
been included by the police officials as accused and the real culprits are
sheltered. He, therefore, suggested that trial should go on, notwithstanding the
inquiry/ investigation including further investigation as directed by us. We
find that the course would not be appropriate because if the trial continues
and fresh evidence/materials surface, it would require almost a de novo trial
which would be not desirable.
39.
”39.
We do not find any necessity to multiply the precedents on this issue. It is a settled
principle of law that the object of every investigation is to arrive at the
truth by conducting a fair, unbiased and proper investigation.
40.
Referring
to the plea of prejudice taken up by the affected parties before 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 Rs.20 crores
were paid as consideration. They further claimed that they had Rs.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 correct or not. It requires to be
investigated and an investigation per se would help them to clear their position,
rather than subjecting them to face multifarious litigations, investigations
and economic burden. Having heard them, we are unable to find any prejudice to
parties if further or wider investigation is directed by this Court. The direction
of further investigation is based upon documents and facts brought to light by the
CEC as a result of examination conducted in the course of its primary function relating
to inquiry into environmental violations and illegal mining activity. If the proceedings
are permitted to continue and finally investigations reveal that a case which
requires to be tried in accordance with law exists, then the interveners would
have to face proceedings all over again. So, it is in their own interest that
the specialized agency is permitted to investigate and bring out the true facts
before the Court of competent jurisdiction.
41.
We
must notice that the criminal offences are primarily offences against the State
and secondarily against the victim. In this case, if the investigation by
specialized agency finds that the suspect persons have committed offences with
or without involvement of persons in power, still such violation undoubtedly would
have been a great loss to the environmental and natural resources and would hurt
both the State and national economy. We cannot expect an ordinary complainant to
carry the burden of proving such complex offences before the Court of competent
jurisdiction by himself and at his own cost. Doing so would be a travesty of
the criminal justice system.
42.
It
was ever and shall always remain the statutory the obligation of the State to
prove offences against the violators of law. If a private citizen has initiated
the proceedings before the competent court, it will not absolve the State of
discharging its obligation under the provisions of the CrPC and the obligations
of Rule of Law. The Court cannot countenance an approach of this kind where the
State can be permitted to escape its liability only on the ground that
multifarious complaints or investigations have been initiated by private
persons or bodies other than the State. In our considered view, it enhances the
primary and legal duty of the State to ensure proper, fair and unbiased
investigation.
43.
The
facts of 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 andexploited.
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 authoritiesin 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 the Constitution of India as per the dictum of this Court in
the case of M.C.Mehta v. Union of India [(2009) 6 SCC 142], and had consequently
issued ab an on illegal mining. The Court also directed Relief and Rehabilitation
Programmes to be carried out in contiguous stages to promote inter-generational
equity and the regeneration of the forest reserves. This is the ethos of the
approach consistently taken by this Court, but this aspect primarily deals with
the future concerns. In respect of the past actions, the only option is to
examine in depth the huge monetary transactions which were effected at the cost
of national wealth, natural resources, and to punish the offenders for their illegal,
irregular activities. The protection of these resources was, and is the constitutional
duty of the State and its instrumentalities and thus, the Court should adopt a holistic
approach and direct comprehensive and specialized investigation into such events
of the past.
45.
Compelled
by the above circumstances and keeping in mind the clear position of law supra,
we thus direct;
a. The issues specified
at point 1(a) and 1(b) of the CEC Report dated 20th April, 2012 are hereby
referred for investigation by the Central Bureau of Investigation.
b. All the proceedings
in relation to these items, if pending before any Court, shall remain stayed
till further orders of this Court. The CBI shall complete its investigation and
submit a Report to the Court of competent jurisdiction with a copy of the
Report to be placed on the file of this Court within three months.
c. The Report submitted
by the CEC and the documents annexed thereto shall be treated as ‘informant’s
information to the investigating agency’ by the CBI.
d. The CBI shall undertake
investigation in a most fair, proper and unbiased manner uninfluenced by the stature
of the persons and the political or corporate clout, involved in the present
case. It will be open to the CBI to examine and inspect the records of any connected
matter pending before any investigating agency or any court.
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.
46.
With
the above directions, we accept the recommendation of the CEC to the extent as
afore-stated.
47.
Let
the matter stand over to 3rd August, 2012 for consideration of the Report dated
27th April, 2012 filed by the CEC.
.…………......................CJI.
(S.H. Kapadia)
….…………......................J.
(Aftab Alam)
….…………......................J.
(Swatanter Kumar)
New
Delhi
May
11, 2012
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