TaxTMI 
TaxTMI 
2021 (11) TMI 1040
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....gnizance of the offence and not the offender C.4 Cognizance by the Special Court of offences under the Indian Penal Code C.4.1 Joint trial and express repeal C.4.2 Joint trial and implied repeal C.5 Cognizance order and non-application of mind C.6 'Authorised person' and Section 22 of MMDR Act C.7 Vicarious liability and Section 23 of MMDR Act D. The Conclusion A. The Facts 1. 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 Indian Penal Code, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and Regulation) Act 1957 "MMDR Act" and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969. 2. Pradeep S. Wodeyar, who is the Managing Director of a Company by the name of Canara Overseas Limited is arraigned as the first Accused "A-1"and is the Appellant in the appeal arising out of SLP (Criminal) No. 138/2021. Lakshminarayan Gubba, who is a director of t....
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....sion 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: (i) 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; (ii) 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; (iii) 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 (iv) 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 ....
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....er cases of illegal mining entrusted by State Government. The Notification shall remain in force for period of two years, co-terminus with the term of the Special Investigation Team (SIT). 7. On 9 October 2014, an FIR was registered in the first case (Crime No. 21/2014) against the following Accused: (i) G. Lakshminarayan Gubba, Managing Director, Canara Overseas Private Limited; (ii) Canara Overseas Private Limited; (iii) K. Ramappa, owner of M/s. Mineral Miners and Traders; and (iv) Unknown Government Officials and unknown private persons. 8. A final report Under Section 173 of the Code of Criminal Procedure was submitted on 17 December 2015 against: (i) Canara Overseas Limited represented by Sri Pradeep S. Wodeyar, Managing Director (A-1); (ii) Lakshminarayana Gubba (A-2); (iii) K. Ramappa (A-3); (iv) Smt. Shanthalakshmi Jayaram (A-4); and (v) J. Mithileshwar (A-5). 9. On 29 December 2015, the Deputy Registrar, City Civil Court, Bengaluru passed the following order noting that the charge-sheet was submitted on 17 December 2015: The charge sheet is submitted by the Inspector of Police, S.I.T. Karnataka Lokayukta, Bengaluru, on 17.12.2015. The offences all....
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....efore, the cognizance order reflects non-application of mind; and (iv) 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. 12. 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) on the following grounds: (i) A-1 is sought to be prosecuted in his capacity as a Managing Director of the company. Under Section 23 of the MMDR Act every person who at the time the offence was committed was responsible for the conduct of the business shall be guilty of the offence. Whether A-1 was personally involved in the relevant transaction could only be decided during the trial since A1 would have to prove that the commission of the alleged offence was not within his knowledge in terms of the proviso to Section 23; (ii) Though according to the agreement, A-3 was given the responsibility of obtaining the mineral dispatch permit, A-2 transported the minerals without insisting on A-3 obtaining the permit; (iii) The order taking cognizance was passed after considering the SIT....
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....stituted a petition Under Section 482 Code of Criminal Procedure for quashing the criminal proceedings. The petition was dismissed by the High Court on 18 November 2020 for the following reasons: (i) The argument that the SIT does not have the jurisdiction to investigate into mining offences is not res integra in view of the judgments of the High Court. It is a settled position that the SIT has the jurisdiction to register a FIR to investigate into mining offences; (ii) An authorized officer filed the complaint before the Special Judge. Therefore, there is no infirmity in view of the bar contained in Section 22 of the MMDR Act; (iii) The order taking cognizance makes it evident that the Special Judge referred to the FIR, charge-sheet, seizure mahazar and documents collected by the investigating officer for taking cognizance of the offences. The order reflects application of mind; and (iv) The material produced by the SIT prima facie makes out the ingredients of the offences charged against the Petitioner. 14. Since similar issues arise in all the three appeals, they have been heard together. As stated earlier, in the first two appeals, A-1 and A-2 are before the court. The....
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....he following submissions before this Court: (i) A-1 was undisputedly the Managing Director of Canara Overseas Private Limited during the period when the offences were committed. Section 23 of the MMDR Act incorporates the principle of criminal vicarious liability. The proviso to Section 23(1) carves out the exception that when it is proved that the offence was committed without the knowledge of the Accused or that he had exercised all due diligence, he shall not be vicariously liable for the offences by the company. Establishing the conditions in the proviso, however, is a matter of trial. Moreover, it is a settled principle that the role of the Managing Director is distinct since by the very nature of the position, the person who occupies it is in-charge of, and responsible for, the conduct of the business; (ii) The order of the Deputy Registrar indicates that the entire papers of the investigation were placed before the Special Judge. Moreover, the order of the Special Judge indicates that he had perused the charge sheet and thereafter had taken cognizance and proceeded to issue summons. Hence, there can be no grievance of non-application of mind. A distinction has to be draw....
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....fences under the Act. C. The Analysis 18. Having adverted to the submissions of the parties, we shall now turn to the issues raised before this Court. C.1 The power to take cognizance 19. Chapter XIV of the Code of Criminal Procedure is titled "Conditions Requisite for Initiation of Proceeding". Section 190 empowers the Magistrate to take cognizance of any offence: 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf Under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance Under Sub-section (1) of such offences as are within his competence to inquire into or try. 20. Clauses (a), (b) and (c) of Sub-section (1) of Section 190 contemplate cognizance being taken by a Magistrate....
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.... in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. C.2 Special Court's power to take cognizance 23. 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 Code of Criminal Procedure. 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 Code of Criminal Procedure; (b) provisions to the contrary under any other law. 24. Reference was made to Section 36A(1)(d) of the National Drugs and Psychotropic Substances Act 1985 "NSPS Act", Section 5 of the Prevention of Corruption Act 1988 "PC Act" and Section 16(1) of the National Investigation Agency Act 2008 "NIA Act" which specifically empower the Special Court to take cognizance of offences without the Accused being committed to it for trial. It was contended that s....
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....ial Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as "every inquiry, other than a trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as a Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14" [vide Section 2(1)(d)]. After analyzing the provision of Sections 4(2) and 193 of the Code of Criminal Procedure 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: 10 [..] The word "expressly" which is employed in Section 193 denoting those e....
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....dings to be quashed since the Special Court took cognizance without the case being committed to it by the Magistrate. The High Court allowed the application and directed the charge sheet and connected papers to be returned to the police who were directed to present it before the Magistrate for the purpose of committal. In appeal, this Court referred to Section 465(1) of the Code which states that no finding shall be reversed on account of irregularity unless there is a failure of justice. The Bench compared the provision on committal to the Sessions Court by the Magistrate Sections 207 and 207A of the Old Code, and Section 209 of the new Code, before and after the enactment of the Code of 1973. Before 1973, the committal Court could examine witnesses and records before deciding to commit the case to the Court of Sessions. However, after 1973, the only examination that the Magistrate has to undertake for the exercise of the committal power is to determine whether the case is exclusively triable by the Court of Sessions. Highlighting the change in the role of the committing court after 1973, the Bench observed that the Accused would achieve no 'advantage' by sending the case ....
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....istrate. Relying on Gangula Ashok (supra), it was held that the Court of Sessions could not have taken cognizance and the order of conviction was set aside. 30. In Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516, a three judge Bench of this Court dealt with a divergence of views, in Moly (supra) and Vidhyadharan (supra) on one hand, and Bhooraji (supra) on the another, on the effect of not committing an Accused in terms of Section 193 of the Code of Criminal Procedure, in cases where a chargesheet is filed under the SC and ST Act and cognizance is directly taken by the Special Judge. Justice Dipak Misra (as the learned Chief Justice then was) delivered the judgment of the three judge Bench to resolve the conflict of opinions. The Court was to decide on the issue of whether the cognizance order passed by the Special Court without committal of proceedings could be held to vitiate the proceedings after the trial is completed: 14. The demonstrable facet of the discord is that if cognizance is directly taken by the Special Judge under the Act and an Accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be ....
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.... be noted that Section 14 of the SC and ST Act has been substituted by Act 1 of 2016 with effect from 26 January 2016. The proviso to Section 14(1), following the amendment, stipulates that the Special Court shall have the power to directly take cognizance of offences under the Act. Recently, a Division Bench of this Court in Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari Criminal Appeal No. 967 of 2021 interpreted the proviso to Section 14 of the SC and ST Act. In that case, FIR was filed for offences punishable under the SC/ST Act and provisions of the Penal Code. The Judicial Magistrate took cognizance of the offences and issued process Under Section 204 and then committed the case to the Special Court. An application was filed before the High Court seeking to quash the FIR and summons order. It was contended that in view of the proviso to Section 14 of the SC and ST Act, the Magistrate had no power to take cognizance of offences under the Act. The High Court allowed the application and quashed the proceedings on the ground that the proviso to Section 14 ousts the jurisdiction of the Magistrate to take cognizance. On appeal, a two judge bench of this Court set aside the....
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....9 Code of Criminal Procedure provides the Magistrate the power to commit the case. In Dharam Pal v. State of Haryana, a Constitution Bench (2014) 3 SCC 306, while discussing whether the committing court was required Under Section 209 to take cognizance of the offence before committing the case to the Court of Sessions, held that the Magistrate could either commit the case before or after taking cognizance. In this case, the Special Court has directly taken cognizance. It now needs to be determined if this irregularity in the cognizance order vitiates the entire proceedings for the order to be quashed and set aside. 35. Thus, the issue before us is two-fold: (i) whether the principle encompassed in Section 465 Code of Criminal Procedure would be applicable to orders passed at the pre-trial stage; and (ii) If the answer to (i) is in the affirmative, whether order taking cognizance would lead to a 'failure of justice' if it were not to be quashed. C.2.1 Section 465 Code of Criminal Procedure and interlocutory orders 36. Section 465 Code of Criminal Procedure reads as below: 465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject ....
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....e interpret the provision contextually. 38. Chapter XXXV of the Code of Criminal Procedure is titled Irregular Proceedings". Section 460 460. Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely: (a) to issue a search-warrant Under Section 94; (b) to order, Under Section 155, the police to investigate an offence; (c) to hold an inquest Under Section 176; (d) to issue process Under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; (e) to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190; (f) to make over a case Under Sub-section (2) of Section 192; (g) to tender a pardon Under Section 306; (h) to recall a case and try it himself Under Section 410; or (i) to sell property Under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. on the one hand provides for those irregularities if any, on the part of a Magistrate which do not vitiate ....
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....ction 190(1)(c) by a Magistrate who is not empowered, renders the proceedings void. 39. Section 462 relates to proceedings being taken in a wrong place; Section 463 with the non-compliance of the provisions of Section 164 Recording of confessions and statements or Section 281 Record of examination of Accused 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". 40. The overarching purpose of Chapter XXXV Code of Criminal Procedure, 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 co....
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....o 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. 41. 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. C 2.2 Section 465 Code of Criminal Procedure and failure of Justice 42. Rattiram....
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....the subsequent decision in Ratiram (supra) notice that under the Code of 1898, the Magistrate had a broad power at the stage of committal which included the power to examine witnesses and to allow cross-examination. Such a power is noticeably absent in the provisions of Section 209 of the Code of Criminal Procedure. On the contrary, Section 209 makes it abundantly clear that when a case is instituted on the basis of a police report or otherwise and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, the Magistrate shall commit the case to the Court of Sessions after complying with the provisions of Section 207 or Section 208, as the case may be. The circumstance to which the Magistrate has to apply their mind is solely whether the offence is triable exclusively by the Court of Sessions. Since the committing Magistrate does not have wide discretionary powers to exercise at this stage not exercising it would not cause any injustice to the parties; (ii) Gradation in irregularity of cognizance order Under Sections 460 and 461-Under Sections 460 and 461, the order taking cognizance based on a police report has been given a greater standing as....
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....pend on the environment and of every species to whom it provides nurture and sustenance. It is because of the wide-ranging impact of such offences on the life of the community and on the well-being of not only the present, but of the succeeding generations, that principles such as the precautionary principle, the public trust doctrine and the concept of sustainable development have gained a sure jurisprudential foundation. In environmental crime, there may be no single, immediate victim. The act which predicates the offence is a crime against humanity. These crimes might not be perceived in the present to have immediate, foreseeable or quantifiable repercussions but there is no mistaking that they impact the life of future generations; (iv) The Preamble of the Act at the time of its enactment indicated that it is an "Act for Regulation of mines and the development of minerals". This was substituted by Act 38 of 1999 to emphasise that the "Act provides for the development and Regulation of mines and minerals". The amendment to the Preamble is indicative of the intent of the legislature that development and Regulation must proceed hand-in-hand, and in order to reduce the increasing....
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....ould still amount to a considerable delay, when there were opportunities for it to have been raised earlier. C.3 Cognizance of the offence and not the offender 45. It is a well settled principle of law that cognizance as envisaged in Section 190 of the Code of Criminal Procedure is of the offence and not of the offender. The expression "cognizance of any offence" is consistently used in the provisions of Sections 190, 191, 192 and 193 "As a matter of fact, the expression "cognizance of any offence" is also used in Section 195, 196, 197, 198, 198A, 198B, 199. Chapter 15 of the Code of Criminal Procedure which governs complaints of Magistrates also emphasises the principle that cognizance is of an offence. The same principle, as we have seen earlier, is emphasised in Chapter 16 in which Section 204(1) adverts to a Magistrate "taking cognizance of an offence". 46. Section 193 of the old Code of Criminal Procedure (of 1898) stated that Court of Session shall not take cognizance of any offence unless the 'Accused has been committed' to it by the Magistrate. However, Section 193 of the Code of Criminal Procedure 1973 states that cognizance of an offence shall be taken after th....
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....vations: 7. [...] Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in Clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the f....
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....d literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 49. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of Sessions has the power Under Section 193 Code of Criminal Procedure to take cognizance of the offence and then summon other persons not mentioned as Accused in the police report. The issue was referred to a five-judge Bench in view of the conflicting decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab (1998) 7 SCC 149. As discussed above, while in Kishun Singh (supra), it was held that the Sessions Court held such a power Under Section 193 Code of Criminal Procedure, it was....
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....1. It is evident from the discussion in Kishun Singh (supra) and Dharam Pal (supra) that in view of the provisions of Section 193 Code of Criminal Procedure, cognizance is taken of the offence and not the offender. Thus, the Magistrate or the Special Judge does not have the power to take cognizance of the Accused. The purpose of taking cognizance of the offence instead of the Accused is because the crime is committed against the society at large. Therefore, the grievance of the State is against the commission of the offence and not the offender. The offender as an actor is targeted in the criminal procedure to provide punishments so as to prevent or reduce the crime through different methods such as reformation, retribution and deterrence. Cognizance is thus taken against the offence and not the Accused since the legislative intent is to prevent crime. The Accused is a means to reach the end of preventing and addressing the commission of crime. 52. In the factual matrix before us, the Special Judge by an order dated 30 December 2015 referred to all the relevant material before him, including the FIR and witness statements, before taking cognizance. The question that arises is whet....
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....erwise than in accordance with the provisions of this Act. Section 4(1) and (1A) of the Act read as follows: 4. Prospecting or mining operations to be under licence or lease.-(1) [No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the Rules made thereunder]: Provided that nothing in this Sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: [Provided further that nothing in this Sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, [the Atomic Minerals Directorate for Exploration and Research] of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limite....
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....under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial. (emphasis supplied) 56. In the case before us, the Special Judge took cognizance and issued summons against the Appellants for offences Under Sections 409, 420 read with Section 120B Indian Penal Code; Sections 21 and 23 read with Sections 4(1), 4(1A) of the MMDR Act; and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969. According to the first Schedule of the Code of Criminal Procedure, the offences Under Sections 409 and 420 are triable by the Magistrate of the First Class. Section 209 Code of Criminal Procedure states that if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, then he shall commit the case to the Court of Session. Section 2(hc) of the MMDR Act states that a Special Court constituted Under Section 30B(1) of the Act is deemed to be the Court of Sessions. A Special Court designated under the MMDR Act is a Court of Sessions which is exclusively vested with the power to try offences under the Act. While the offences Under Sections 409 and 420 Indian Penal Code are triable by the Judicial Magistrate First Class "JMFC", the iss....
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..... Section 4(1) Code of Criminal Procedure states that all offences under the Indian Penal Code shall be investigated and tried according to the provisions contained in the Code of Criminal Procedure. Section 4(2) states that all offences under any other law shall be investigated and tried according to the same provisions, subject to any other enactment that regulates the manner of investigation and trial. Section 5 states that nothing in the Code shall affect any special law that confers power, and jurisdiction, unless there is a specific provision to the contrary. Section 30C of the MMDR Act stipulates that unless otherwise provided by the Act, the Code of Criminal Procedure shall apply to the proceedings before the Special Court. Section 30C reads as follows: 30C. Special Courts to have powers of Court of Session--Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the proceedings before the Special Court and for the purpose of the provisions of this Act, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court s....
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....tention of the legislature was not to repeal the provision. The burden to prove that the subsequent enactment has impliedly repealed the provision of an earlier enactment is on the party asserting the argument. This presumption against implied repeal is rebutted if the provision(s) of the subsequent Act are so inconsistent and repugnant with the provision(s) of the earlier statute that the two provisions cannot 'stand together'. Harshad Mehta (n 40); Justice G.P. Singh, Principles of Statutory Interpretation (14th ed. LexisNexis 2016) 737-738 Therefore, the test to be applied for the construction of implied repeal is as follows: Whether the subsequent statute (or provision in the subsequent statute) is inconsistent and repugnant with the earlier statute (or provision in the earlier statute) such that both the statutes (or provisions) cannot stand together. Also see, State of Orissa v. M/s. M.A. Tulloch AIR 1964 SC 1284; Syndicate Bank v. Prabha D. Naik, (2001) 4 SCC 713; State of MP v. Kedia Leather & Liquor Limited, (2003) 7 SCC 389; Lal Shah Baba Dargah Trust v. Magnum Developers, (2015) 17 SCC 65; The test when applied in the context of this case is whether Section 30B o....
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....ranted. The counsel contended that the Special Court under the Act consists of a Judge of the High Court, while Section 306 for the purpose of the provision only enumerates categories of Magistrates. The Bench observed that an express provision needs to be made in the subsequent specific statute only when wider powers or no powers are intended to be given: 38. It is understandable that if powers wider than the one contemplated by the Code are intended to be conferred, a provision to that effect will have to be made. It does not follow therefrom that in an altogether different statute, if no special provision is made, an inference can be drawn that even where the powers under the Code and not wide powers were intended to be conferred, save and except where it is so stated specifically, the effect of omission would be that the Special Court will not have even similar powers as are exercised by the ordinary criminal courts under the Code. (emphasis supplied) Addressing the contention of the Appellant that Section 306 uses the term 'Magistrate', while the Special Court consists of High Court judges, it was held that the statute and the Code need to be harmoniously construed....
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....direct conflict' between the provisions such that it is not possible to harmoniously interpret the provisions. It thus needs to be analysed whether Section 30B of the MMDR Act and Section 220 Code of Criminal Procedure can be harmoniously construed. 67. The Judicial Magistrate First Class is invested with the authority to try offences Under Sections 409 and 420 Indian Penal Code. On the other hand, the Sessions Judge is appointed as a Special Judge for the purposes of the MMDR Act. If the offences under the MMDR Act and the Indian Penal Code are tried together by the Special Judge, there arises no anomaly, for it is not a case where a judge placed lower in the hierarchy has been artificially vested with the power to try the offences under both the MMDR Act and the Code. Additionally, if the offences are tried separately by different fora though they arise out of the same transaction, there would be a multiplicity of proceedings and wastage of judicial time, and may result in contradictory judgments. It is a settled principle of law that a construction that permits hardship, inconvenience, injustice, absurdity and anomaly must be avoided. Section 30B of the MMDR Act and Section....
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....s such offence. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate (Sections 190 and 200 of the Code). Having noticed that proceeding had been initiated on the basis of a complaint, this Court held: 28. Summoning of an Accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the Accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the Accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before s....
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.... Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the Accused brings out a prima facie case or not. Justice Sikri observed that while the Magistrate is empowered to issue process against a person who has not been charge-sheeted, there has to be sufficient material in the police report showing his involvement. The Court held that no such exercise was carried out by the Special Judge and in its absence, the order summoning the Appellants could not be sustained. The decision in Sunil Bharti Mittal (supra) arose out of a police report but clearly involved a situation where Appellants had not been arraigned as Accused in the charge-sheet. The Magistrate had issued summons to them merely treating them to be an alter ego of the company. This Court held that it was a wrong (and a 'reverse') application of the pri....
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....al Code. The Magistrate directed the police to register the case and investigate it. The Magistrate thus, instead of following the procedure laid down Under Section 200 or 202 Code of Criminal Procedure, ordered that the matter be investigated and a report be submitted Under Section 173(2) of the Code. Based on the police report, cognizance was taken by the Magistrate. A two-judge Bench of this Court observed that the Magistrate must apply his mind before taking cognizance of the offence. However, no observation was made that the cognizance order based on a police report needs to be 'well-reasoned'. On the facts of the case, the Court held that since the cognizance order was not placed before the High Court, it did not have the opportunity to review if the Magistrate had applied his mind while taking cognizance. The matter was thus remanded back to the High Court for it to peruse the documents and then decide the Section 482 petition afresh. 73. It must be noted that the decisions in Pepsi Foods Ltd. (supra) and Mehmood Ul Rehman (supra) arose in the context of a private complaint. Though the decision in Sunil Bharti Mittal (supra) arose from a police report, it is evident....
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....taking cognizance. Justice Banumathi speaking for the two judge Bench dealt with the issue as to whether while taking cognizance of an offence Under Section 190(1)(b) Code of Criminal Procedure, the Court has to record reasons for its satisfaction before the issuance of summons. Relying upon the decision in Pepsi Foods Ltd. (supra), it was urged by the Accused that the order for the issuance of process without recording reasons was correctly set aside by the High Court. Moreover, it was urged that there was no application of mind by the Magistrate. While distinguishing the decision in Pepsi Foods Ltd. (supra) on the ground that it related to taking of cognizance in a complaint case, the court held since in a case of cognizance based on a police report, the Magistrate has the advantage of perusing the materials, he is not required to record reasons: 23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the p....
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....on 22 of the MMDR Act stipulates that no Court shall take cognizance of any offence punishable under this Act or Rules, except upon a complaint made in writing by a person authorised on that behalf by the Central or the State Government. It has been contended by the Appellant that before the Special Court (Sessions Court) took cognizance of the offence, no complaint was filed by the authorised person. 77. In State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772, the principal question which was formulated for the decision of a two judge Bench was whether the Magistrate has the power to take cognizance of the offence upon a police report without a complaint from the authorised person Under Section 22 of the MMDR Act. Justice M.Y. Eqbal, delivering the judgment for the two-judge Bench, held that Section 22 only bars the prosecution and cognizance of offences for contravention of Section 4 of the MMDR Act without a written complaint and not for offences under the provisions of the Indian Penal Code. The court also noted the object and policy underlying the MMDR Act in the context of environmental protection. The Court observed: 62. Sub-section (1-A) of Section 4 of the MMDR Act puts a re....
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....f the offences under the Indian Penal Code are distinct; and (ii) For the commission of an offence under the Indian Penal Code, on receipt of a police report, the Magistrate having jurisdiction can take cognizance without awaiting a complaint by the authorized officer. A complaint is required in terms of Section 22 only for taking cognizance in respect of a violation of the provisions of the MMDR Act. 78. In Kanwar Pal Singh v. The State of Uttar Pradesh (2020) 14 SCC 331, a two judge Bench has followed the earlier decision in Sanjay (supra). In Jayant v. The State of Madhya Pradesh (2021) 2 SCC 670, the appeal before this Court arose from a decision of the High Court rejecting the application Under Section 482 Code of Criminal Procedure for quashing FIRs alleging the commission of offences Under Sections 379 and 414 Indian Penal Code, Sections 4/21 of the MMDR Act and Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006. The JMFC, taking note of the information and the decision of this Court in Sanjay (supra) exercised powers Under Section 156(3) Code of Criminal Procedure and directed the registration of a criminal case for invest....
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.....2. The bar Under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and the Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and the Rules made thereunder. 21.3. For commission of the offence under Indian Penal Code, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and the Rules made thereunder. 21.4. That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order Under Section 156(3) of the Code and directs the In-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and the Rules made thereunder and thereafter after investigation the In-charge of the police station/investigating officer concerned submits a report, the same can be sent to the Magistrate concerned as well as....
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....ive sub-division Revenue Department 10 Geologists Within their jurisdiction Department of Mines and Geology 11 The Tahasildhar Respective Taluk Revenue Department 12 The Circle Inspector/ Inspector of Police Within their jurisdiction Police Department 13 Sub-Inspector of Police Within their jurisdiction Police Department 14 The Revenue Inspector Respective Hobilies Revenue Department 15 The Range Forest Officers Respective Range Forest Department (emphasis supplied) 80. The Government of Karnataka issued a notification on 29 May 2014 declaring that the Office of the Inspector General of Police, Special Investigation Team, Karnataka Lokayukta shall be a 'police station' for the purpose of Section 2(s) and shall have jurisdiction throughout the State of Karnataka for offences related to the illegal mining of minerals. The FIR was filed by the SIT, Lokayukta pursuant to the Order of this Court dated 16 September 2013 and was signed by the Sub-inspector of Police, Karnataka Lokayukta. On a reading of the notification dated 29 May 2014, it is evident that the SIT has the jurisdiction throughout Karnataka in relation to mining offences. S. No. 13 ....
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....e understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company. Shiva Kumar Jatia (supra), Sunil Sethi (supra) and Ravindranatha Bajpe (supra) also rely on this observation made in Sunil Bharati Mittal (supra). 82. Section 23(1) of the MMDR Act stipulates that where the offence has been committed by a company, every person who at the time of the commission of the offence was in-charge of and responsible for the conduct of business shall be deemed to be guilty of the offence. The proviso stipulates that nothing contained in Sub-section (1) shall render such a person liable to punishment, if he proves that the offence was committed without his knowledge or that he exercised all due ....
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....udges in Mainuddin Abdul Sattar Shaikh v. Vijay D. Salvi (2015) 9 SCC 622: 12. The Respondent has adduced the argument that in the complaint the Appellant has not taken the averment that the Accused was the person in charge of and responsible for the affairs of the Company. However, as the Respondent was the Managing Director of M/s. Salvi Infrastructure (P) Ltd. and sole proprietor of M/s. Salvi Builders and Developers, there is no need of specific averment on the point. This Court has held in National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [(2010) 3 SCC 330 : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri.) 1113], as follows: (SCC p. 346, para 39) 39. (v) If the Accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. 84. The test to determine if the Managing Director must be charged for the offence committed by the Company is to determine if the conditions in Section 23 of the MMDR Act have been fulfilled i.e., whether the individual was in-charge of and responsible for the affairs of the company during the commission o....
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....der the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated; (v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' Under Section 465 Code of Criminal Procedure is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 Code of Criminal Procedure; (vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible Under Section 220 Code of Criminal Procedure. There is no express provision in the MMDR Act which indicates that Section 220 Code of Criminal Procedure does not apply to proceedings under the MMDR Act; (vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 Code of Criminal Procedure. Both the provisions can be read h....