Supreme Court: In an important ruling, the 3-judge bench of Dr. DY Chandrachud, Vikram Nath and BV Nagarathna, JJ has held that though 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 Mines and Mineral (Development and Regulation) Act 1957 (MMDR Act) without the case being committed to it by the Magistrate under Section 209 CrPC; even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC. This was held keeping in mind the objective of Section 465 CrPC, which is to prevent the delay in the commencement and completion of trial.
Persistent complaints were made against the appellants for being involved in large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. 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.
They were, hence, charged with offences punishable under the provisions of Sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and Regulation) Act 19571 and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969.
After the Additional City Civil Sessions Judge and Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance after perusing the final report, it was contended that:
- the Special Judge did not the power to take cognizance of offences under the MMDR Act without a complaint by the authorized officer in view of Section 22 of the MMDR Act.
- the order did not mention the offences for which cognizance was taken, thereby, reflecting non-application of mind.
Special Court’s power to take cognizance
The general principle which is embodied in Section 465 CrPC is that a finding or order is not reversible due to irregularities unless a ‗failure of justice‘ is proved. Subsection (2) of Section 465 provides that while determining whether there has been a failure of justice, the appellate Court shall have regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding.
“The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest.”
Further, the test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No straitjacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation.
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. Hence, it was held that no failure of justice has been demonstrated in the case at hand.
“Authorised person‟ and Section 22 of MMDR Act
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 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.
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 Lokayukta Police and the information was given by the SIT. Therefore, the respondent hads complied with Section 22 CrPC.
Application of mind by the Special Judge
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. 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 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 taking cognizance is not erroneous.
Cognizance against the offence and not the offender
The Special Judge by an order dated 30 December 2015 referred to all the relevant material before him, including the FIR and witness statements, before taking cognizance. However, the cognizance order mentioned that cognizance was taken against the “accused” instead of the offence.
The Court, however, held that this would not vitiate the entire 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.
“Moreover, bearing in mind the objective behind prescribing that cognizance has to be taken of the offence and not the offender, a mere change in the form of the cognizance order would not alter the effect of the order for any injustice to be meted out.”
[Pradeep S. Wodeyar v. State of Karnataka, 2021 SCC OnLine SC 1140, decided on 29.11.2021]
For appellants: Senior Advocates Siddharth Dave and Pravin H Parekh
For State: Advocate Nikhil Goel
*Judgment by: Justice Dr. DY Chandrachud