PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA

Citation: [2021] 11 S.C.R. 985; 2021 INSC 798

Court: Supreme Court of India

Bench: D.Y. CHANDRACHUD , VIKRAM NATH, B.V. NAGARATHNA

Judgment date: 2021-11-29

Case summary

2021 INSC 798. Supreme Court of India judgment dated 2021-11-29. PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA. Read the judgment and case details on LawSphereX.

Judgment text

[2021] 11 S. C. R. 985 985 PRADEEP S. WODEYAR A v. THE STATE OF KARNATAKA (Criminal Appeal No. 1288 of 2021 B NOVEMBER 29, 2021 [DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH AND B. V. NAGARATHNA, JJ. ] Code of Criminal Procedure, 1973 – ss. 193, 209 and 465 – Mines and Mineral (Development and Regulation) Act, 1957 – C Karnataka Forest Rules, 1969 – Special Court’s power to take cognizance – Allegations of purchasing and selling extracted iron ore illegally without mining dispatch permits and the payments of charges to the Mining and Geological Departments and the Forest Department – FIR registered and a final report u/s. 173 of Cr. P. C. submitted – Additional City and Civil Sessions Judge and Special D Judge took cognizance after perusing the final report – Petitions filed before the High Court u/s. 482 Cr. P. C.

to quash the criminal proceedings were dismissed – Before the Supreme Court, the appellant-accused contended that the Special Court (which is a Sessions Court) is not empowered to take cognizance of offences E without the case being committed to it, in view of s. 193 CrPC – Since the Magistrate did not commit the case to the Special Court before it took cognizance of the offences in the instant case, it has been contended that the order taking cognizance is vitiated as it is without jurisdiction and it has led to failure of justice – Held : The Special Court does not have, in the absence of a specific provision F to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate u/s. 209 CrPC – The order of the Special Judge dated 30. 12. 2015 taking cognizance is therefore irregular – However, the objective of s. 465 is to prevent the delay in the commencement and completion G of trial – S.

465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well – Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of s. 465 CrPC – As fas as failure of justice is concerned, the cardinal principle that guides s. 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest H 985 986 SUPREME COURT REPORTS [2021] 11 S. C. R. A – In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken – No reason was given to explain the inordinate delay – Moreover, in view of the diminished role of the committal court u/s. 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order B made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated. Code of Criminal Procedure, 1973 – s.

193 – Mines and Mineral (Development and Regulation) Act, 1957 – Karnataka Forest Rules, 1969 – Cognizance of the offence and not the offender C – The Special Judge by an order mentions that cognizance is taken against the accused – Whether merely because the cognizance order mentions that cognizance is taken against the ‘accused’, the entire proceedings would be vitiated – Held : It is a settled principle of law that cognizance is taken of the offence and not the offender – D 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 – The order taking cognizance inadvertently mentioned that the Special Judge has taken cognizance against the accused instead of the offence – This would not vitiate the entire E proceedings.

Mines and Mineral (Development and Regulation) Act, 1957 – Karnataka Forest Rules, 1969 – Code of Criminal Procedure, 1973 – ss. 193, 220 – Penal Code, 1860 – Cognizance by the Special Court of the offences under IPC – It was contended that even if the F Special Judge had the power to take cognizance of the offence, he could only have taken cognizance of offences under the MMDR Act and could not have taken cognizance (and conduct trial) of the offences under the provisions of IPC – Held : Since offences under IPC are alleged to have been committed in the course of the same transaction as the offences under the MMDR Act, the situation is G squarely covered by sub-section (1) of s. 220 of CrPC – The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible u/s. 220 CrPC – There is no express provision in the MMDR Act which indicates that s. 220 CrPC does not apply to proceedings under the H MMDR Act. PRADEEP S.

WODEYAR v. THE STATE OF KARNATAKA 987 Mines and Mineral (Development and Regulation) Act, 1957 A – Karnataka Forest Rules, 1969 – Code of Criminal Procedure, 1973 – s. 193 – Cognizance order and non-application of mind – Allegations of purchasing and selling extracted iron ore illegally without mining dispatch permits and the payments of charges to the Mining and Geological Departments and the Forest Department – B FIR registered and a final report u/s. 173 of Cr. P. C. submitted – Additional City and Civil Sessions Judge and Special Judge took cognizance after perusing the final report – It was contended that the order of the Special Judge taking cognizance has not sufficiently demonstrated application of mind to the material placed before him – Held : The Special Judge, took cognizance on the basis of a C report submitted u/s.

173 CrPC and not on the basis of a private complaint – The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence – In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce D detailed reasons for taking cognizance or that it does not indicate that an application of mind. Mines and Mineral (Development and Regulation) Act, 1957 – s. 22 – Karnataka Forest Rules, 1969 – Code of Criminal Procedure, 1973 – Allegations of purchasing and selling extracted E iron ore illegally without mining dispatch permits and the payments of charges to the Mining and Geological Departments and the Forest Department – FIR registered and a final report u/s. 173 of Cr. P. C.

submitted – Additional City and Civil Sessions Judge and Special Judge took cognizance after perusing the final report – Appellant contended that before the Special Court (Sessions Court) took F cognizance of the offence, no complaint was filed by the authorised person – Held : A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of s. 22 of the MMDR Act – The FIR that was filed to overcome the bar u/s. 22 has G been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT – Therefore, the respondent had complied with s. 22 MMDR Act. Mines and Mineral (Development and Regulation) Act, 1957 – s. 23 – Karnataka Forest Rules, 1969 – Code of Criminal H 988 SUPREME COURT REPORTS [2021] 11 S. C. R.

A Procedure, 1973 – Vicarious liability – Allegations of purchasing and selling extracted iron ore illegally without mining dispatch permits and the payments of charges to the Mining and Geological Departments and the Forest Department – FIR registered and a final report u/s. 173 of Cr. P. C. submitted – Additional City and Civil Sessions Judge and Special Judge took cognizance after perusing B the final report – It was contended that the charge- sheet does not ascribe any role to A-1 and hence the process initiated against him must be quashed – Held : The determination of whether the conditions stipulated in s. 23 of the MMDR Act have been fulfilled is a matter of trial – Moreover, it is evident that the charge sheet, as C a matter of fact, ascribes a role to A-1 and A-2 for the payment of transportation – Therefore, there is a prima facie case against A-1, which is sufficient to arraign him as an accused at this stage.

Dismissing the appeals, the Court HELD : Special Court’s power to take cognizance D 1. Section 193 CrPC states that the Sessions Court shall not take cognizance of an offence as a Court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special E Court could directly take cognizance of the offences. Therefore, the Sessions Court did not have the authority to take cognizance. [Para 34][1018-A-B] Section 465 CrPC 2. Section 465 stipulates that the order passed by a Court F of competent jurisdiction shall not be reversed or altered by a Court of appeal on account of an irregularity of the proceedings before trial or any inquiry. It is settled law that cognizance is pre-trial or inquiry stage. Therefore, irregularity of a cognizance order is covered by the provision.

In order to determine if the provision G applies to pre-trial orders like an irregular cognizance order or only applies to orders of conviction or acquittal, it is necessary that the provision is interpreted contextually. [Para 37] [1019-D-E] 3. It needs to be determined if condoning the irregularity H of the cognizance order under Section 465 would lead to a failure PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 989 of justice. In considered opinion of this Court, it would not lead A to a failure of justice for the following reasons : (i) The diminished role of the committing Court under Section 209 of the new Code while committing the case to the Court of Session. Both the decision in Bhooraji as well as the subsequent decision in Ratiram notice that under the Code of B 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 CrPC. On the contrary, Section 209 makes it abundantly clear that when a case is instituted on the basis of a C 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 D 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 E taking cognizance based on a police report has been given a greater standing as compared to an order taking cognizance based on information received from any person other than a police officer or upon the own knowledge of the Magistrate, for the specific purpose of deciding on the irregularity of the order. The reason behind the gradation is because in the former case, the Magistrate F has material based on an investigation by the police to ground his decision which may be absent when cognizance is taken based on information by any other person. In this case, cognizance was taken based on the SIT report.

Therefore, the case squarely falls under Section 190(b) of CrPC which under Section 460, even if G irregular would not vitiate the proceedings; (iii) Objective of the MMDR Act : The appellants are accused of the commission of offences under the MMDR Act involving the export and transportation of minerals without permit. Offences under the H 990 SUPREME COURT REPORTS [2021] 11 S. C. R. A MMDR Act are environmental crimes. These crimes impact upon society at large. These offences cause a detriment to and affect the well-being of the entire community. Environmental crime is not confined within geographical or state limits. The impact of environmental crime transcends borders and time; (iv) The Preamble of the Act at the time of its enactment indicated that it B is an Act for regulation of mines and the development of minerals.

The ultimate object of the provision is to ensure that violators are punished by a speedy process of trial before a court duly constituted in that behalf; and (v) The delay in the commencement of trial : In the present case, there was considerable delay of two C years. [Para 44][1023-E-H; 1024-A-G; 1025-H; 1026-B-C] Cognizance of the offence and not the offender 4. In the factual matrix before this Court, the Special Judge by an order dated 30 December 2015 referred to all the relevant material before him, including the FIR and witness statements, D before taking cognizance. The question that arises is whether merely because the cognizance order mentions that cognizance is taken against the accused, the entire proceedings would be vitiated. The order taking cognizance inadvertently mentioned that the Special Judge has taken cognizance against the accused instead of the offence.

This would not vitiate the entire E proceedings, particularly where material information on the commission of the offence had been brought to the notice of and had been perused by the Special Judge. [Para 52] [1031-G-H; 1032-A-B] Cognizance by the Special Court of offences under the IPC F 5. Section 409 IPC deals with the offence of Criminal breach of trust by a public servant, banker, or agent, while Section 420 IPC deals with cheating. Since both these offences are alleged to have been committed in the course of the same transaction as the offences under the MMDR Act, the situation is squarely G covered by sub-section (1) of Section 220 of CrPC. It now needs to be determined if Section 220 CrPC can be applied to proceedings before the Special Court constituted under the MMDR Act. [Para 58][1036-A-B] H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 991 6.

Section 4(1) CrPC states that all offences under the IPC A shall be investigated and tried according to the provisions contained in the CrPC. 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 B 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 CrPC shall apply to the proceedings before the Special Court. Therefore, on a combined reading of Sections 4 and 5 of CrPC along with Section 30C of the MMDR C Act, it is apparent that the procedure prescribed under the Code shall be applicable to proceedings before the Special Court unless the MMDR Act provides anything to the contrary.

These provisions incorporate the principle of express repeal – i. e. , unless any provision of the CrPC is expressly repealed by the D provisions of the MMDR Act, the procedure prescribed under the CrPC would apply to the proceedings before the Special Court. Since there is no express provision that excludes the application of Section 220 CrPC, it needs to be examined if the MMDR Act has by necessary implication excluded the application of Section 220 CrPC. [Paras 59, 60 and 62][1036-C-D, F-H; 1037-C-D] E 7. The Judicial Magistrate First Class is invested with the authority to try offences under Sections 409 and 420 IPC. 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 IPC are tried together by the Special Judge, F 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 G 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 H 992 SUPREME COURT REPORTS [2021] 11 S. C. R. A the MMDR Act and Section 220 CrPC can be harmoniously construed and such a construction furthers justice. Therefore, Section 30B cannot be held to impliedly repeal the application of Section 220 CrPC to the proceedings before the Special Court.

[Para 67][1040-G-H; 1041-A-B] B Cognizance order and non-application of mind 8. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 CrPC and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta. The C Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order D taking cognizance is not erroneous. [Para 75][1047-E-G] ‘Authorised person’ and Section 22 of MMDR Act 9.

Section 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 E 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. [Para 76] [1047-G-H; 1048-A] F 10. 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 G 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 of the H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 993 Notification dated 21 January 2014 authorizes the Sub- inspector A of Police‘ within its jurisdiction for the purpose of Section 22 of the MMDR Act. Therefore, on a combined reading of both the notifications, it is clear as day light that the complaint filed by SIT and signed by the Sub-Inspector of Police has complied with Section 22 of the MMDR Act. [Para 80][1052-H; 1053-A-C] B Vicarious liability and Section 23 of MMDR Act 11. A-1 submitted that the charge-sheet does not ascribe any role to A-1 and hence the process initiated against him must be quashed.

Section 23(1) of the MMDR Act stipulates that where the offence has been committed by a company, every person who C 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 D or that he exercised all due diligence of preventing the commission of the offence. [Para 82][1054-E-F] 12. 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 E been fulfilled i. e. , whether the individual was in-charge of and responsible for the affairs of the company during the commission of the offence. In view of the above decisions, the submissions which has been urged on behalf of the appellant cannot be acceded to.

The determination of whether the conditions stipulated in Section 23 of the MMDR Act have been fulfilled is a matter of F trial. Moreover, it is evident that the charge sheet, as a matter of fact, ascribes a role to A-1 and A-2 for the payment of transportation. Therefore, there is a prima facie case against A- 1, which is sufficient to arraign him as an accused at this stage. [Para 84][1056-C-E] G 13. The findings of the Court are summarised as below: (i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being H 994 SUPREME COURT REPORTS [2021] 11 S. C. R. A committed to it by the Magistrate under Section 209 CrPC. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular; (ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial.

Section 465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. B Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC; (iii) The decision in Gangula Ashok was distinguished in Rattiram based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) CrPC. C Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest.

While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the D seriousness of the offence and the apparent intention to prolong proceedings, among others; In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court E under Section 209 of the Code of 1973 as compared to the role of the committal court under 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; (iv) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, F 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 CrPC is proved. This irregularity would thus not vitiate the proceedings G in view of Section 465 CrPC; (v) 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 CrPC. There is no express provision in the MMDR Act which indicates that Section 220 CrPC does not apply to proceedings under the MMDR Act; (vi) Section 30B of the MMDR Act does H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 995 not impliedly repeal Section 220 CrPC.

Both the provisions can A be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings; (vii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order B if it otherwise appears that the Special Judge has applied his mind to the material; (viii) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of C Lokayukta Police and the information was given by the SIT.

Therefore, the respondent has complied with Section 22 CrPC; and (ix) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section D 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an accused at this stage. [Para 85][1056-F-H; 1057-A-H; 1058-A-E] Dharam Pal v. State of Haryana, a Constitution Bench E (2014) 3 SCC 306 : [2013] 13 SCR 1052 – followed. Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516 : [2012] 3 SCR 496; Kishun Singh v. State of Bihar (1993) 2 SCC 16 : [1993] 1 SCR 31; Municipal Council, Palai v. T. J Joseph AIR 1963 SC 1561 : F [1964] SCR 87; Harshad Mehta v. State of Maharashtra (2010) 8 SCC 257; Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 : [1997] 5 Suppl. SCR 12; State (NCT of Delhi) v.

Sanjay (2014) 9 SCC 772 : [2014] 9 SCR 1063; SMS Pharmaceuticals v. Neeta Bhalla (2005) 8 SCC 89 : [2005] 3 Suppl. SCR G 371; Mainuddin Abdul Sattar Shaikh v. Vijay D Salvi (2015) 9 SCC 622 : [2015] 6 SCR 1033 – relied on. Gangula Ashok v. State of AP (2000) 2 SCC 504 : [2000] 1 SCR 468; State of MP v. Bhooraji (2001) 7 SCC 679 H 996 SUPREME COURT REPORTS [2021] 11 S. C. R. A : [2001] 2 Suppl. SCR 128; Moly v. State of Kerala (2004) 4 SCC 584 : [2004] 3 SCR 346; Vidyadharan v. State of Kerala (2004) 1 SCC 215 : [2003] 5 Suppl. SCR 524; Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari, Criminal Appeal No. 967 of 2021; Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : B [2014] 2 SCR 1; AR Antulay v. RR Nayak, 1988 AIR 1531 : [1988] 1 Suppl. SCR 1; Santhosh De v. Archana Guha AIR 1994 SC 1229 : 1994 (3) Suppl. SCC 735; Anna Reddy Sambvisa Reddy v. State of A. P, AIR 2009 SC 2661 : [2009] 6 SCR 755; Chief Enforcement C Officer v. Videocon International Ltd.

, (2008) 2 SCC 492 : [2008] 2 SCR 36; Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157 : [2008] 13 SCR 66; State of W. B. v. Mohd. Khalid (1995) 1 SCC 684 : [1994] 6 Suppl. SCR 16; Ranjit Singh v. State of Punjab (1998) 7 SCC 149 : [1998] 2 Suppl. SCR 8; RN Agarwal v. RC D BansaL (2015) 1 SCC 48 : [2014] 14 SCR 1124; Harshad Mehta v. State of Maharashtra, (2010) 8 SCC 257; State of Orissa v. M/s M. A. Tulloch, AIR 1964 SC 1284 : [1964] SCR 461; Syndicate Bank v. Prabha D. Naik, (2001) 4 SCC 713 : [2001] 2 SCR 714; State of E MP v. Kedia Leather & Liqour Limited, (2003) 7 SCC 389 : [2003] 2 Suppl. SCR 727; Lal Shah Baba Dargah Trust v. Magnum Developers, (2015) 17 SCC 65 : [2015] 10 SCR 966; Deep Chand v. State of Uttar Pradesh (1959) 2 SCR 8; Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 : [2008] 13 SCR 66; F Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420 : [2015] 4 SCR 841; Sunil Bharti Mittal v.

CBI (2015) 4 SCC 609 : [2015] 1 SCR 377; Ravindranatha Bajpe v. Bangalore Special Economic Zone Ltd Criminal Appeal Nos. 1047-1048/2021; G Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424 : [2012] 2 SCR 696; State of Gujarat v. Afroz Mohammed Hasanafatta (2019) 20 SCC 539; Kanwar Pal Singh v. The State of Uttar Pradesh (2020) 14 SCC 331 : 2019 (12 ) JT 420; Jayant v. The State of Madhya Pradesh (2021) 2 SCC 670; 2020 (12 ) JT 52; Shiva H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 997 Kumar Jatia v. NCT of Delhi (2019) 17 SCC 193 : [2019] A 11 SCR 210; Sunil Sethi v. State of Andhra Pradesh (2020) 3 SCC 240; Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd. 2021 SCC OnLine 806 – referred to. Case Law Reference B [2000] 1 SCR 468 referred to Para 25 [2001] 2 Suppl. SCR 128 referred to Para 26 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1288 of 2021. C From the Judgment and Order dated 12. 11.

2020 of the High Court of Karnataka at Bengaluru in Criminal Petition No. 2512 of 2017. With Criminal Appeal Nos. 1289 and 1290 of 2021. D Pravin H. Parekh, Siddhartha Dave, Sr. Advs. , S. Udaya Kumar Sagar, Ms. Bina Madhavan, L. M. Chidanandayya, Ms. Akanksha Mehra, M/s Lawyer S. Knit & Co. , Naveen Kumar, Vinit Kumar, Shourajeet Chakravarty, Siddharth Garg, Ms. Devanshi Singh, Himanshu Chaubey, Advs. for the Appellant. E Nikhil Goel, AAG, V. N. Raghupathy, Ashutosh Ghade, Vinay Mathew, Advs. for the Respondent. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. F Contents* A. The Facts.......................................................................... 3 B. The Submissions............................................................. 13 C. The Analysis.................................................................. 17 G C. 1 The power to take cognizance............................... 17 C. 2 Special Court’s power to take cognizance.............. 19 C.

2. 1 Section 465 CrPC and interlocutory orders..... 30 *The Contents is as per the Original Judgment. H 998 SUPREME COURT REPORTS [2021] 11 S. C. R. A C 2. 2 Section 465 CrPC and failure of Justice........... 35 C. 3 Cognizance of the offence and not the offender........ 41 C. 4 Cognizance by the Special Court of offences under the IPC................................................................... 47 C. 4. 1 Joint trial and express repeal........................... 51 B C. 4. 2 Joint trial and implied repeal............................ 54 C. 5 Cognizance order and non-application of mind .... 58 C. 6 ‘Authorised person’ and Section 22 of MMDR Act.. 67 C C. 7 Vicarious liability and Section 23 of MMDR Act....... 74 D. The Conclusion............................................................... 78 A. The Facts 1.

A Single Judge of the High Court of Karnataka dismissed two D petitions instituted by the appellants for quashing the criminal proceedings initiated against them in Special CC No. 599/2015 (arising out of Crime No. 21/2014) for offences punishable under the provisions of Sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and 1 E Regulation) Act 1957 and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969. 2. Pradeep S. Wodeyar, who is the Managing Director of a Companyby the name of Canara Overseas Limited is arraigned as the 2 first accused and is the appellant in the appeal arising out of SLP F (Criminal) No138/2021. Lakshminarayan Gubba, who is a director of 3 the said company has been arraigned as the second accused and is the appellant in the appeal arising out of SLP (Criminal) No. 1448/2021. 3. An overview of the criminal case needs to be noticed. 4.

On 1 June 2009, Canara Overseas Limited, a Company dealing G in exports and imports is alleged to have entered into an agreement with 4 K. Ramappa, the third accused , who is the owner of Mineral Miners 1 "MMDR Act” 2 "A-1" 3 "A-2" 4 H "A-3" PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 999 [DR. DHANANJAYA Y CHANDRACHUD, J. ] and Traders, Bellary for the purpose of exporting iron ore. In pursuance A of the agreement, the company purchased 31,650. 65 metric tons (MTs) of iron ore from A-3, of which 20,000 metric tons were exported to China between the period of 1 January 2009 to 31 May 2010, while the remaining iron ore was sold to two other companies in India. These transactions are alleged to have been carried out through, or at Belekere B Port in Karnataka. It has been alleged that the transportation and export of iron ore was carried out in the absence of permits from the Forest Department and the Department of Mines and Geology.

The iron ore involved in the transactions is alleged to have been removed from the Mining Lease No. 921/2553, Kallahari Village, Bellary. The fourth 5 6 Accused is allegedly the mine owner while the fifth accused is their C agent. The iron ore is alleged to have been stocked in an unauthorized stockyard without bulk permits from the department of Mines and Geology and to have been transported without an authorized forest way pass. Acting in conspiracy, the accused are alleged to have caused a loss of Rs. 3,27,83,379/- to the state exchequer. D 5. Persistent complaints were made on large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. Samaj Parivartna Samudaya filed a 7 Petition under article 32 before this Court regarding illegal mining in the forest areas in Andhra Pradesh and Karnataka.

The Central Empowered 8 E Committee , pursuant to an order of this Court dated 19 November 2010submitted a report on 7 January, 2011 regarding six mining leases in the Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This Court by an order dated 25 February 2011 directed the CEC to submit its report in respect of the allegations of illegal mining in Karnataka. Pursuant to the order, the CEC filed five reports on illegal mining. Following the F submission of the report of the CEC dated 3 February 2012 raising concerns over illegal mining, transportation, sale and export of iron ore in the districts of Bellary, Chitradurga and Tumkur, directions were issued by this Court on 16 September 2013 for an investigation by the CBI. The purport of the directions of this Court was as follows: G (i) CBI was permitted to register criminal cases against those exporters in respect of whom a preliminary enquiry had 5 "A-4" 6 "A-5" 7 Writ Petition (Civil) No.

562/2009 8 "CEC” H 1000 SUPREME COURT REPORTS [2021] 11 S. C. R. A 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 B 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 C 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 exported less than 50,000 MTs and report compliance. D 6.

On 22 November 2013, the Government of Karnataka entrusted the above cases in terms of the orders of this Court for further investigation and criminal proceedings to the Lokayukta Police. On 21January 2014, the state government issued a notification authorizing several officers, including the Inspector of Police, as ‘authorized persons’ for the purpose of sub-sections (3) and (4) of Section 21 and Section 22 of the MMDR E Act and Rules 43(3) and 46 of the Karnataka Minor Mineral Concession Rules, 1994. On 24 January 2014, the Government of Karnataka 9 constituted a Special Investigation Team in the Karnataka Lokayukta for investigation of illegal mining among other purposes. The SIT included the Inspector of Police.

On 29 May 2014, the Home Department of the F Government of the Karnataka declared, in pursuance of Section 2(s) of 10 the Criminal Procedure Code, that the office of the Inspector General of Police, SIT, Karnataka Lokayukta shall be a police station for the purpose of the said clause and, power and jurisdiction in respect of the offences of illegal mining of minerals/minor minerals as defined in Section3 of the MMDR Act was conferred. The text of the notification is extracted G below: “In exercise of the powers conferred by clause (s) of Section 2 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), 9 "SIT” 10 H "CrPC” PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1001 [DR. DHANANJAYA Y CHANDRACHUD, J.

] the Government of Karnataka hereby declare that with effect A from the date of publication of this notification in the Official Gazette, the office of Inspector General of Police, Special Investigation Team, Karnataka Lokayuktha, Bangalore shall be a Police Station for the purpose of the said clause with jurisdiction throughout the State of Karnataka and shall have powers and B jurisdiction in respect of the offences of illegal mining of “minerals” and “minor minerals” as defined under Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (Central Act 6 7 of 1957) committed under the provisions of the following Acts and the corresponding rules, if any, made thereunder namely:- C 1. Indian Penal Code, 1860 2. Prevention of Corruption Act, 1988 3. The Karnataka Forest Act, 1962 4. Any other offence under any other relevant Act committed either in furtherance of or in violation of the above mentioned D Acts or to undertake illegal mining; and 5.

Any other 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). ” E 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; F (iii) K. Ramappa, owner of M/s Mineral Miners and Traders; and (iv) Unknown Government Officials and unknown private persons. G 8. A final report under Section 173 of the CrPC 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); H 1002 SUPREME COURT REPORTS [2021] 11 S. C. R. A (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 B submitted on 17 December 2015: “The charge sheet is submitted by the Inspector of Police, S. I. T. Kamataka Lokayukta, Bengaluru, on 17. 12. 2015. The offences alleged against the above named accused punishable U/s 409, 420 r/w 120B IPC 21, 23 r/w 4(1), 4(l)(A) of MMDR Act 1957 C and Sec. 165 r/w 144 Kamataka Forest Rules 1969. Prays that for the reasons stated therein this Hon’ble Court may be pleased to prosecute the above named accused for the aforesaid offences: 1. F. I. R. Complaint. Crime papers in Cr. No. 21/2014 are enclosed. 2. Connected documents are produced. D 3. Statements of witnesses are produced. 4. Accused copies are furnished. 5. Connected properties are not produced. 6. Al & A4 are not arrested as per charge sheet. E A2, A3 & A5 are on court bail. Place it before the XXIII Addi.

City Civil & Sessions Judge and Special Judge for Prevention of Corruption Act for kind orders. Sd/- 29/12/15 F Deputy Registrar City Civil Court Bengaluru. ” rd 10. On 30 December 2015,the 23 Additional City Civil Sessions G Judge and Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance after perusing the final report. A direction was also issued for the registration of the case against the accused persons and for issuance of summons. The order reads as follows: “Perused the final report. Cognizance is taken against Accused H No. 1 to 5. Register the case against Accused No. 1 to 5. Register PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1003 [DR. DHANANJAYA Y CHANDRACHUD, J. ] the case against Accused No. 1 to 5. Register the case and issue A summons to accused No. 1 to 5 returnable by 16. 01. 2016. Sd/-30. 12. 2015 Special Judge, Prevention of Corruption Act B Bangalore Urban, Bangalore” 11.

On 20 March 2017, proceedings were instituted before the High Court under Section 482 CrPC for quashing the criminal proceedings initiated against the appellants. The appellants sought the quashing of the criminal proceedings on the following grounds: C (i) A-1 was not involved in the alleged illegal transaction. He was residing in Indonesia at the relevant point of time. The affairs of the company were managed by A-2; (ii) According to the agreement entered into for the transaction, D the responsibility of obtaining the dispatch permit from the concerned Department of Mines and Geology and to transport the same was on the A-3. Therefore, A-2 could not be prosecuted for procuring iron ore without the permit; (iii) The order of the Special Judge taking cognizance does not E mention the offences for which cognizance was taken.

Therefore, 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 F 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: G (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 H 1004 SUPREME COURT REPORTS [2021] 11 S. C. R.

A 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 B transported the minerals without insisting on A-3 obtaining the permit; (iii) The order taking cognizance was passed after considering the SIT report. It is sufficient if the order reflects application of mind. It is a settled position of law that an order taking C cognizance need not be elaborate, with lengthy reasoning. It is sufficient if the Special Judge has satisfied himself that there is sufficient ground for proceeding against the accused person; (iv) A complaint was filed by the authorized person as required under Section 22 of the MMDR Act based on the SIT report; D (v) There are similar allegations in the complaint and the SIT report.

If the Special Judge has looked into the SIT report and has satisfied himself that the allegations prima facie disclose the commission of the offence, the Special Judge has taken cognizance of the offence under Section 22 of E the MMDR Act; and (vi) When a complaint is filed under either Section 200 CrPC or under Section 22 of the MMDR Act, the Court could either take cognizance based on the facts on record or can refer the complaint for investigation under Section 156(3) F of CrPC or order a fresh enquiry under Section 202 CrPC. Since a detailed investigation has already been undertaken by the SIT, the Special Court can consider the SIT report for the purpose of taking cognizance. 13. SLP (Criminal) No. 138/2021 and SLP (Criminal) No. 1448/ G 2021 were instituted under Article 136 of the Constitution to challenge the judgment of the High Court.

In the appeal arising out of the companion 11 SLP , the appellant is the proprietor of a concern by the name of TBS Logistics which is involved in the business of buying, selling and exporting H 11 SLP (Criminal) No. 1923/2021 PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1005 [DR. DHANANJAYA Y CHANDRACHUD, J. ] iron ore. The case of the prosecution is that the appellant entered into a A criminal conspiracy with other accused persons, for purchasing and selling extracted iron ore illegally without mining dispatch permits and the payment of charges to the Mining and Geological Departments and the Forest Department. On 9 October 2014, Crime case No. 23/2014 was registered with the police investigation team, Karnataka Lokayukta Bengaluru for B offences punishable under Sections 409, 420 and 471 read with 120B of the IPC, Sections 21 and (4)(1)(A) of the MMDR Act, 1957 and Rules 144 and 165 of the Karnataka Forest Rules, 1959. A charge sheet was submitted on 24 November 2015.

The Special Judge took cognizance on 30 December 2015. The appellant instituted a petition under Section 482 CrPC for quashing the criminal proceedings. The petition was dismissed C 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 D 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; E (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 F 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 companion appeal has been instituted by A-1 (out of 5 accused). G B. The Submissions 15. It is in this backdrop that it becomes necessary to consider the submissions which have been urged on behalf of the appellants in support of the three appeals. H 1006 SUPREME COURT REPORTS [2021] 11 S. C. R. A 16. Mr. Siddharth Daveand Mr Pravin H Parekh, Senior Counsel have led the arguments on behalf of the appellants. Their submissions have proceeded along the following lines: (i) The order of the Special Judge taking cognizance is contrary to law. Cognizance, it is well settled, has to be taken of the offences and not of the offender.

Yet the Special Judge has B acted illegally, without application of mind in taking cognizance of the accused; (ii) A-1 (Pradeep S. Wodeyar) cannot be held vicariously liable since: (a) He was not in-charge of the affairs of the company C at the relevant time during the alleged illegal transactions; (b) He was in Indonesia and hence cannot be held personally responsible; (iii) The Special Court constituted under Section 30(B) of the D MMDR Act has jurisdiction only to try offences for contravention of Section (4)(1) or Section 4(1)(A) of the MMDR Act, punishable under Section 21(1). This power of the Special Court does not extend to taking cognizance (and conducting trial) of offences punishable under the IPC; E (iv) Section 193 CrPC bars the Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by the Magistrate under the Code.

The only exception is if it has been otherwise expressly provided by the CrPC or by any other F law for the time being in force. There is no specific provision in the MMDR Act or the Code empowering the Court of Session to take cognizance without an order of committal by the Magistrate; and (v) Section 22 of the MMDR Act stipulates that no Court shall take cognizance of any offence punishable under the Act G or any Rules made under it except upon a written complaint made by a person authorized in this behalf by the Central Government or the State Government. There was no authorization for the Inspector of the Lokayukta Police and hence there has been a violation of the provisions of Section H 22. PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1007 [DR. DHANANJAYA Y CHANDRACHUD, J. ] 17. The submissions urged on behalf of the appellants have been A opposed by the State of Karnataka. Mr.

Nikhil Goel has urged the 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 B 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 C 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; D (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, E there can be no grievance of non-application of mind. A distinction has to be drawn in law between cognizance based on complaints under Section 200 CrPC which are not proceeded by an investigation and a complaint proceeded by a police report. A well-reasoned cognizance order is not F required when cognizance is taken pursuant to a police report since the Magistrate has enough material before the court to peruse. However, since there is a dearth of material in a Section 200 CrPC complaint, it is only in such cases that a cognizance order needs to be well-reasoned to prove application of mind. Moreover, in the present case, the High G Court has after a detailed discussion come to the conclusion that the summons issued to the appellants contained details of the offences.

Therefore, the accused were aware of the charges against them. Hence, it cannot be argued that the order issuing summons did not fulfil the requirement of H Section 190 or that cognizance was not validly taken; 1008 SUPREME COURT REPORTS [2021] 11 S. C. R. A (iii) The mere fact that cognizance was directly taken by the Sessions Court, in itself, would not be sufficient to quash the entire criminal proceeding under Section 482 CrPC. In view of the constricted role of the Magistrate under Section 209 at the stage of committal of an offence exclusively triable by the Sessions Court, the absence of a committal B order of the Magistrate is hardly of any significance unless a failure of justice is shown. In any event, in the present litigation, the appellants moved the High Court in 2017in order to challenge the cognizance order of 2015. In the meantime, submissions on the framing of charges were C addressed before the Special Judge.

There is absolutely no material to indicate that a failure of justice has been occasioned due to the Magistrate not passing an order of committal; (iv) There is no merit in the submission that there was an absence D of delegation of power under Section 22 of the MMDR Act to file a complaint under Section 21(i): (a) The Government of Karnataka had issued a specific notification for the purpose of Section 22 on 21 January 2014, authorizing among others, the police E inspector having jurisdiction over the place; and (b) The High Court has recorded that a complaint was filed under Section 22 read with Section 21(i) of the MMDR Act and that it contains allegations identical to those contained in the charge sheet and SIT report F pertaining to offences 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. G C. 1 The power to take cognizance 19.

Chapter XIV of the CrPC is titled “Conditions Requisite for Initiation of Proceeding”. Section 190 empowers the Magistrate to take cognizance of any offence: H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1009 [DR. DHANANJAYA Y CHANDRACHUD, J. ] “190. Cognizance of offences by Magistrates. A (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- B (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 C 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 D contemplate cognizance being taken by a Magistrate of an offence by any of the following three modes, namely upon: (i) the Magistrate receiving a complaint of facts which constitute an offence; E (ii) a police report of such facts; and (iii) information received from any person other than a police officer or upon his own knowledge that an offence has been committed. 21. Section 193 reads as follows: F “193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this G Code. ” Section 193 stipulates that unless the case has been committed by a Magistrate to the Sessions Court under the Code, no Court of Session shall take cognizance of any offence.

But there are two exceptions to this formulation, namely, where: H 1010 SUPREME COURT REPORTS [2021] 11 S. C. R. A (i) the CrPC has made an express provision to the contrary; and (ii) an express provision to the contrary is contained in “any other law for the time being in force”. The bar in Section 193 is to the Sessions Court taking cognizance B of an offence, as a court of original jurisdiction unless the case has been committed to it by the Magistrate under the Code. 22. Section 209 states that when a case is instituted either on a police report or otherwise, and it appears to the Magistrate that the offence is exclusively triableby the Sessions Court, he shall commit the case to the Court of Session. Section 209 reads as follows: C “209. Commitment of case to Court of Session when offence is triable exclusively by it.

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- D (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand E the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to F 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 G 193 CrPC. Since the Magistrate did not commit the case to the Special Court before it took cognizance of the offences in the instant case, it has been contended that the order taking cognizance is vitiated. As stated in the earlier section of the judgment, Section 193 is subject to two exceptions- (a) provisions to the contrary under the CrPC; (b) provisions to the contrary under any other law. H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1011 [DR. DHANANJAYA Y CHANDRACHUD, J. ] 24.

Reference was made to Section 36A(1)(d) of the National A 12 Drugs and Psychotropic Substances Act 1985 , Section 5 of the 13 Prevention of Corruption Act 1988 and Section 16(1) of the National 14 Investigation Agency Act 2008 which specifically empower the Special Court to take cognizance of offences without the accused being committed to it for trial. It was contended that since neither the Code B nor the statute specifically empower the Special Court to take cognizance of the offence without committal, the exercise of power by the Special Court to take cognizance is without jurisdiction. 25. Before we address the merits of this contention, we find it imperative to refer to the judgments of this Court on the interpretation of C Section 193 CrPC. The decision of a two judge Bench in Gangula Ashok 15 v. State of AP arose out of a complaint lodged under the Schedule 16 Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 against the appellants.

The police filed a charge-sheet upon investigation directly before the Sessions Court. The Sessions Court is designated as a Special Court for trial of offences under the Act. Charges were framed D by the Special Judge. The High Court was moved for quashing the charges and the charge-sheet. The Single Judge held that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it and accordingly set aside the proceedings. The High Court directed the charge-sheet and connected E papers to be returned to the police officer who was directed to present it before the JMFC for the purpose of committal and the Special Court was directed on committal to frame appropriate charges. The order of the High Court was questioned in appeal before this Court. The first issue which arose was whether the Special Judge could have taken cognizance ‘straightway without the case being committed’ by the F Magistrate.

The Special Court under the SC and ST Act was a Court of Sessions, having regard to Section 14 of the Act. After setting out the 17 provision of Section 14 , Justice KT Thomas observed that the Special 12 "NSPS Act” 13 "PC Act” G 14 "NIA Act” 15 (2000) 2 SCC 504 16 "SC and ST Act” 17 "For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act”. H 1012 SUPREME COURT REPORTS [2021] 11 S. C. R. A Court under the Act was constituted only for the ‘speedy trial’ of offences which is different from an ‘inquiry’. In this context, it was observed: “8…So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court.

Though the word “trial” is not defined either in the B 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 C 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 CrPC D 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: E “10 [.. ] The word “expressly” which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically F provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate. 11. Neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified Court of G Session (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate.

If that be so, there is no reason to think that the charge-sheet or a complaint can straight away be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that H PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1013 [DR. DHANANJAYA Y CHANDRACHUD, J. ] the Court of Session is given a superior and special status. Hence A we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session. ” 26. Consequently, it was held that a Special Court under the SC B and ST Act is essentially a court of Sessions and it cannot take cognizance of the offence without the case being committed to it by the Magistrate in accordance with the provisions of the CrPC. In other words, the complaint or a chargesheet could not straightway be laid down before the Special Court.

In this backdrop, this Court upheld the view of the C High Court setting aside the proceedings initiated by the Special Court. 18 27. In State of MP v. Bhooraji , the appellant was convicted inter alia of an offence punishable under Section 302/149 of the IPC read with Section 3(2) of the SC and ST Act. Since the charge sheet was filed under Section 3(2) of the SC and ST Act together with offences D under the IPC, the appellants were tried by a Special Judge constituted under the SC and ST Act. The appellant was convicted. An appeal was filed before the High Court against the conviction. During the pendency of the appeal, this Court decided Gangula Ashok (supra). An interlocutory application was filed by the appellants seeking the trial proceedings to be quashed since the Special Court took cognizance E 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 F reversed on account of irregularity unless there is a failure of justice. The Bench compared the provision on committal to the Sessions Court 19 by the Magistrate , 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 G 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 18 (2001) 7 SCC 679 19 Sections 207 and 207A of the Old Code, and Section 209 of the new Code H 1014 SUPREME COURT REPORTS [2021] 11 S. C. R. A that the accused would achieve no ‘advantage’ by sending the case back to the Magistrate for committal: “18. It is apposite to remember that during the period prior to the Code of Criminal Procedure, 1973, the committal court, in police charge-sheeted cases, could examine material witnesses, and such B records also had to be sent over to the Court of Session along with the committal order. But after 1973, the committal court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by the Court of Session.

Perhaps it would have been possible for an accused to raise a C contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel D for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate’s Court merely for the purpose of retransmission of the records to the Sessions Court through a committal order. We did not get any satisfactory answer to the above query put to the counsel. E 28. A contention was also raised on the ground that Section 465 would only be applicable where the order has been passed by a ‘court of competent jurisdiction’, and that the Court of Sessions is not a competent court before the case is committed to it.

Rejecting this argument, it was observed that the phrase “court of competent jurisdiction” denotes a validly constituted court conferred with the jurisdiction to try the offence F and an irregularity in the procedure would not denude the competence of the court. The Bench further distinguished the decision in Gangula Ashok (supra) on the ground that there the trial was yet to begin as opposed to this case where the challenge was after the accused was convicted. On these reasons, the appeal was allowed. G 20 29. In Moly v. State of Kerala and Vidyadharan v. State of 21 Kerala , the accused was convicted under the SC and ST Act and provisions of the IPC. The appeal against the conviction was dismissed 20 (2004) 4 SCC 584 21 H (2004) 1 SCC 215 PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1015 [DR. DHANANJAYA Y CHANDRACHUD, J. ] by the Kerala High Court. Before this Court, it was contended that the A Sessions Court could not have taken cognizance without committal by the Magistrate.

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. 22 30. In Rattiram v. State of Madhya Pradesh , a three judge B 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 CrPC, in cases where a chargesheet is filed under the SC and ST Act and cognizance is directly taken by the Special Judge. Justice C 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: D “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 permitted in law to question the same and seek quashment of the conviction on the bedrock that the trial Judge had no jurisdiction E or authority to take cognizance without the case being committed to it and thereby violated the mandate enshrined under Section 193 of the Code. ” (emphasis supplied) F 31. The Bench answered the question in the negative by holding that the trial will not be vitiated due to an irregularity in the cognizance order for the following reasons: (i) Section 207 and Section 207A of the Code of 1898 enunciated an exhaustive procedure which was to be G followed by the Magistrate before committing the case to the Court of Sessions.

The CrPC of 1973 made a departure from the provisions of the erstwhile Code of 1898 under which “the accused enjoyed a substantial right prior to 22 (2012) 4 SCC 516 H 1016 SUPREME COURT REPORTS [2021] 11 S. C. R. A committal of the case” which is “indeed a vital stage”. In marked contrast, under the CrPC of 1973 the Magistrate “is only required to see whether the offences are exclusively triable by the Court of Sessions”. Noticing the clear distinction between the earlier Code of 1898 and the CrPC of 1973, the Court held that “there is sea of difference” B between the two provisions and there was nothing in Section 209 of the CrPC of 1973 which would even remotely suggest that the protections as provided under the old Code have been telescoped to the existing one”.

In this backdrop, the Court held that in view of the restricted role of the Magistrate C in committal proceedings, absence of committal would not lead to a failure of justice; (ii) A criminal proceeding must endeavor to conform to the principles of a ‘speedy trial’ and ‘protection of the victim of the crime’. Since the objection was not raised at the time of framing of charges but only after the conviction, the D failure of justice must be proved to be overbearing compared to the right of the victim and right of speedy trial which was not proved in this case; (iii) Moly (supra) and Vidhyadharan (supra) are per incuriam. Bhooraji (supra) has been correctly decided; E and (iv) In Gangula Ashok (supra), the trial had not commenced as compared to the other cases where the trial had completed and the accused were convicted. The accused did not wait for the trial to commence before challenging F the cognizance order. 32.

It may 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 G 23 Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari 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 23 H Criminal Appeal No. 967 of 2021 PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1017 [DR. DHANANJAYA Y CHANDRACHUD, J. ] offences and issued process under Section 204 and then committed the A 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 B 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 judgment of the High Court by holding that the proviso to Section 14 of the SC and ST Act does not oust the power of the Magistrate to take cognizance, but it provides the power to take cognizance to the Special Court in addition to the Magistrate. While C reversing the judgment of the High Court, Justice MR Shah, speaking for the two judge Bench, observed: (i) Section 14 does not take away the jurisdiction of the Magistrate to take cognizance and commit the case to the Special Court for trial.

The words used in amended Section D 14 are “Court so established or specified shall have power to directly take cognizance of the offences under this Court”. The word, 'only' is missing; and (ii) In view of the provisions of Section 460 CrPC, the act of the Magistrate in taking cognizance could at the highest be E held to be irregular and would not vitiate the proceedings. 33. The judgements on the interpretation of Section 193 CrPC may for the purpose of analysis be divided into two categories based on the time frame of challenge: (i) cases involving a challenge to the cognizance order before and after the commencement of trial, that is, F before the completion of the trial; and (ii) cases involving a challenge to the cognizance order after the completion of the trial. Gangula Ashok (supra) and Shantaben (supra) fall within the first category, while Rattiram (supra), Moly (supra), Bhooraji(supra)and Vidhyadharan (supra) fall within the second category.

In both Bhooraji (supra)and G Rattiram (supra), though it was observed that the cognizance order is irregular, it was held not to vitiate the proceedings since there was no ‘failure of justice’ that could be proved in view of Section 465 CrPC. However, in Gangula Ashok (supra), the challenge to the cognizance order was made before the commencement of the trial. H 1018 SUPREME COURT REPORTS [2021] 11 S. C. R. A 34. Section 193 CrPC states that the Sessions Court shall not take cognizance of an offence as a Court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special Court could directly take cognizance of the offences. Therefore, the Sessions Court did not B have the authority to take cognizance. Section 209 CrPC provides the Magistrate the power to commit the case. In Dharam Pal v.

State of 24 Haryana, a Constitution Bench , 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 C 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 D encompassed in Section 465 CrPC 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 CrPC and interlocutory orders E 36. Section 465 CrPC reads as below: “465.

Finding or sentence when reversible by reason of error, omission or irregularity. —(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by F a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice G has in fact been occasioned thereby; (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, 24 H (2014) 3 SCC 306 PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1019 [DR. DHANANJAYA Y CHANDRACHUD, J.

] the Court shall have regard to the fact whether the objection A could and should have been raised at an earlier stage in the proceedings. ” (emphasis supplied) The general principle which is embodied in Section 465 CrPC is that a finding or order is not reversible due to irregularities unless a B ‘failure of justice’ is proved. Sub-section (2) of Section 465 provides that while determining whether there has beena failure of justice, the appellate Court shall have regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding. The observation in Rattiram (supra) distinguishing Gangula Ashok (supra)on the basis of the stage of the trial thus takes its support C from Section 465(2) of the Code where a classification is sought to be made on the basis of the challenge vis-à-vis the stage of the proceedings. 37.

Section 465 stipulates that the order passed by a Court of competent jurisdiction shall not be reversed or altered by a Court of appeal on account of an irregularity of the proceedings before trial or D 25 any inquiry. It is settled law that cognizance is pre-trial or inquiry stage. Therefore, irregularity of a cognizance order is covered by the provision. In order to determine if the provision applies to pre-trial orders like an irregular cognizance order or only applies to orders of conviction or acquittal, it is necessary that we interpret the provision contextually. E 38. Chapter XXXV of the CrPC is titled Irregular Proceedings”. 26 Section 460 on the one hand provides for those irregularities if any, on 25 Gangula Ashok v. State of A. P, (2000) 2 SCC 504; Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, where a Constitution Bench held that trial begins after framing of charge 26 460. Irregularities which do not vitiate proceedings.

If any Magistrate not empowered F 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 G 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. H 1020 SUPREME COURT REPORTS [2021] 11 S. C. R. A 27 the part of a Magistrate which do not vitiate proceedings.

Section 461 , on the other hand, contains a list of proceedings by the Magistrate who is not empowered by law in this behalf, which would vitiate the proceedings. Clause (e) of Section 460 relates to the taking of cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190 CrPC. Clause (a) of section 190(1) refers to the receipt of a complaint B of facts constituting an offence and clause (b) refers to a police report of the facts. Consequently, where a Magistrate who is not empowered by law takes cognizance of an offence either under clause (a) or clause (b) of Section 190(1) erroneously though in good faith, the proceedings will not be set aside merely on the ground that the Magistrate was not so C empowered. In other words, for vitiating the proceedings, something more than a mere lack of authority has to be established.

Clause (k) of Section 461 adverts to a situation where a Magistrate who is not empowered takes cognizance of an offence under clause (c) of Section 190(1). Section 190(1)(c) empowers the Magistrate to take cognizance D upon information received from a person other than a police officer or upon his own knowledge. The taking of cognizance under Section 190(1)(c) by a Magistrate who is not empowered, renders the proceedings void. E 27 461. Irregularities which vitiate proceedings. If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under section 83; (b) issues a search- warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; F (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond to keep the peace; (g) mak

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