1. The present petition is said to be filed in the following back ground:
The petitioner was initially appointed to the Karnataka Administrative Services. He is said to have served in different capacities in the State of Karnataka. On account of the services so rendered, the Central Government is said to have promoted and appointed him in the Indian Administrative Services.
The petitioner was said to have been posted as the Secretary, Department of Industries (Small Scale Industries & Mines), in the month of July 2000. In that capacity he was said to have been required to consider and implement a decision of this court rendered in a writ petition in W.P.27372/1995, filed by one B.R. Amar Singh. It transpires that the Government of Karnataka had granted a mining lease in favour of Amar Singh over an extent of 1280 acres of land. This was said to have been approved by the Central Government in exercise of power under Section 5 of the Mines and Minerals ( Regulation and Development) Act, 1957 (Hereinafter referred to as ''the MMRD Act'', for brevity). The same was said to have been notified by the State Government vide notification dated 4.2.1985.
In the year 1992, it transpires that one Gangadhar and others had filed a public interest petition before this court in a writ petition in W.P.23702/1992, inter alia contending that the said Amar Singh was mining outside the leased area granted to him. During the pendency of the said petition, it transpires that the Senior Geologist of the Department had noticed that there was a discrepancy in the area where the mining operations were carried on by Amar Singh and the area depicted as the leased area in the relevant sketch. And hence a prohibitory order was said to have been passed restraining further mining operations. Singh is said to have questioned the same in a writ petition in WP 27372/ 1995. During the pendency of the said petition, the Director, Mines and Geology is said to have called for a report from the Senior Geologist. The Senior Geologist in his report dated 4.6.1996 is said to have indicated that the area as per the sketch and the area available on the ground are different and hence had recommended rectification of the sketch to avoid further controversies. It transpires the jurisdictional Deputy Commissioner had also noticed the same discrepancy and is said to have issued a communication dated 3.6.1997 recommending rectification of the sketch, so that mining operation could be carried on where iron ore was actually available.
It then transpires that the PIL in W.P.23702/1992 was dismissed by an order dated 5.4.1999 and the petition filed by Amar Singh in W.P.27372/1995 was allowed and this court is said to have directed the Director of Mines and Geology and the State Government to consider the representation of Singh for rectification of the sketch, by an order dated 6.8.1997.
Incidentally, the petitioner was said to have been posted as the Secretary (Mines), Department of Industries and Commerce in the month of July 2000. On assumption of office, he is said to have called for a status report of the above matter from the Director of Mines and Geology.
It is further stated that Amar Singh had, by a representation dated 7.4.1999, sought that the mining area leased to him be restricted to 320 acres instead of 1280 acres. The State Government is said to have accordingly modified the notification in respect of the leased area, restricting it to 320 acres. It is also stated that since the order of this court in favour of Singh had not been implemented, he is said to have made a representation dated 17.4.1999 requesting the State Government to rectify the sketch pertaining to the mining lease M.L.No. 1975 and confirm the area of operation. The Director of Mines and Geology in turn, is said to have submitted a report dated 9.5.2000 recommending rectification of the sketch as sought for by Singh.
It is the petitioner''s case that when the matter was placed before him for further consideration, it was not brought to his attention by his sub-ordinates who were familiar with the case, that an approval by the Central Government was required even in respect of a rectification to reduce the larger mining lease area, which may have received the approval of the Central Government in the first instance. That in the bona fide belief that no such approval may be necessary for reduction of the larger area which had been approved by the Central Government, the petitioner is said to have forwarded the matter to the Minister for Mines and Geology, for his approval of the rectified sketch. The same was said to have been duly approved by the Government as communicated to the Director of Mines and Geology on 23.10.2000.
It then transpires that the petitioner had attained the age of superannuation on 31.8.2001 and retired from service.
In the year 2002, Amar Singh is said to have sought for transfer of the mining lease and the State Government had by a notification dated 28.1.2003 is said to have transferred the lease in favour of M/s Matha Minerals Pvt. Ltd. One Vijayakumari Bai is said to have challenged the transfer by filing a revision petition before the Central Government. It is then for the first time that the Central government took a view that the State Government ought to have obtained the approval of the Central Government in rectifying the sketch at the instance of Amar Singh. The Lok Ayukta on being informed by a Committee headed by one Dr.U.V. Singh that the rectification of the sketch required the prior approval of the Central Government, had opined that the lease required to be cancelled for violation of Section 5 of the MMRD Act. He had also recommended criminal action.
In the wake of the above, a High Power Committee was said to have been appointed under the Chairmanship of an Additional Chief Secretary, who in turn is said to have constituted a Special Investigation Team (SIT) in respect of several matters which required investigation. A notification is said to have been issued by the State Government dated 22.11.2013 in this regard. Significantly, the rectification of the sketch was not one of the matters required to be investigated.
It is after eight years of the retirement of the petitioner from service that the respondents have thought it fit to institute criminal proceedings in Crime No.33/2015 for offences punishable under Sections 379, 409, 420, 447 read with Section 120 (B) of the Indian Penal Code, 1860 and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and under Sections 21, 23 read with 4 (1) 4 (1) (A) of the MMRD Act.
It is contended that the complaint taken in its entirety, does not disclose any offence committed by the petitioner. And further, the petitioner is in any event protected under Section 27 of the MMRD Act in respect acts done in the course of his duties on the basis of a bona fide decision. Hence the present petition.
2. The learned counsel for the petitioner, Shri L. M. Chidanandayya would contend that the registration of the criminal case against the petitioner is ultra vires the powers and jurisdiction of the respondent. It was on the recommendation of the High Power Committee, the SIT was constituted, with a view to investigate certain matters which are identified by the State Government requiring further investigation which are reflected in Annexure-A to the Government Notification dated 22.11.2013. Admittedly, the matter pertaining to M/s Matha Minerals Pvt. Ltd. is not one of the subjects referred by the State Government for investigation by the SIT Police. Therefore, the registration of the criminal case is without jurisdiction and is ultra vires the powers conferred on the respondents.
It is contended that the registration of the criminal case is barred by virtue of Section 22 of the MMDR Act. Section 22 of the MMDR Act mandates that a complaint can be filed only before the jurisdictional magistrate. The allegation is primarily of violation of Section 5 of the MMRD Act and if it is treated as an offence under Section 21(1), it is a competent officer who can alone file a complaint before a Magistrate. The police could not have undertaken an investigation on the footing that there was a cognizable offence. Hence the registration of the case is without authority of law.
It is contended that even assuming that there was violation of Section 5 of the MMRD Act and if made punishable as an offence having been committed, the punishment attracted does not exceed three years of imprisonment. In which event the criminal case having been registered 16 years after alleged violation, the court below is barred from taking cognizance of the offence in terms of Section 468 of the Code of Criminal Procedure, 1973.
The learned counsel for the petitioner has urged other grounds as well, in seeking that the proceedings initiated against the petitioner be quashed.
3. The respondents have filed statement of objections to the petition and the learned Special Public Prosecutor, Shri P. Govindan would contend and it is candidly admitted in the State of objections, at page 5 thereof, that the Government Order dated 22.11.2013 does not contain a reference for investigation as regards the irregularity in grant of lease and modification of the sketch and the consequent violation of Section 5 (1) of the MMDR Act. However, a justification is pleaded to the effect that the SIT, Karnataka Lok Ayuktha is declared as a Police station, under Notification dated 29.5.2014 and hence the agency would be competent to investigate all cases pertaining to illegal mining .
4. The above contention of the respondents cannot be accepted on the face of it. The matters for further investigation referred to the SIT, on the basis of the report of the Lok Ayukta has been specified in terms of Annexure-A to the above mentioned Government Notification, are specified item wise, ''chapter and verse'' and further, there is no indication that the agency was authorized generally to conduct investigation into any and every case of illegal mining. Even if it was inclined to do so, it may have been necessary to take the Government into confidence and ought to have secured authorization to investigate and take further steps in respect of any other case other than which were referred. For otherwise the very notification was otiose. The petition would succeed on this ground alone.
The further grounds urged are also pertinent, particularly the ground as regards the bar of limitation. The contention of the respondents that the offences alleged against the petitioner are offences which are punishable with imprisonment exceeding seven years and therefore the bar of limitation is not applicable, is also not tenable.
That the respondents have mixed up the causes of action and alleged an offence punishable under Section 379 of IPC. Section 379 of IPC is not applicable as the petitioner was the Secretary to the Government and discharging the duties under the provisions of the MMDR Act and therefore the registration of the criminal case under Section 379 of IPC is completely illegal. Section 409 of IPC has no application in as much as that the petitioner was not entrusted with the property and there is no allegation in the complaint that the petitioner has converted the said property for himself. Therefore the complaint itself does not make out a case and the registration of the criminal case under Section 409 of IPC is not at all maintainable.
Once the criminal case is registered under Section 409 of IPC, another case under the same provision alleging cheating punishable under 420 of IPC cannot be pressed into service. There is no fraudulent intention in passing the order to comply with a judgment rendered by this court and therefore the entire case against the petitioner is misconceived.
5. In so far as Section 447 of IPC is concerned there is no allegation what so ever as against the petitioner of trespass which again would attract the punishment of imprisonment for 3 months, the same is barred by limitation. The allegations in the complaint do not make out any case.
That the registration of the criminal case under Section 13(1)(d) of the PC Act is again illegal and ultravires the powers conferred on the SIT. There is no allegation in the complaint that the petitioner has abused his official position and made any personal gain for himself. Therefore Section 13(1)(d) has no application to register a criminal case against the petitioner.
In the result, the writ petition is allowed and the proceedings initiated against the petitioner and pending in Crime No.33/2015 on the file of the XXIII Additional City Civil & Sessions Court, Bengaluru, is hereby quashed, in so far as the petitioner is concerned.
