Case BriefsSupreme Court

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.

FACTUAL BACKGROUND

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.

ANALYSIS

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]


Counsels

For appellants: Senior Advocates Siddharth Dave and Pravin H Parekh

For State: Advocate Nikhil Goel


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The bench of RK Agarwal and AM Sapre, JJ dismissed the plea challenging appointment of senior Gujarat cadre IPS officer Rakesh Asthana as a special director of the CBI.

Refusing to interfere with the unanimous decision taken by the Selection Committee, the Court said:

“before taking the decision, the Director, CBI, had participated in the discussions and it is based on relevant materials and considerations. Further, even in the FIR filed by the CBI, the name of Shri Rakesh Asthana has not been mentioned at all. Thus, lodging of FIR will not come in the way of considering Shri Rakesh Asthana for the post of Special Director, after taking into consideration his service record and work and experience.”

Advocate Prashant Bhushan, appearing for the NGO Common Cause, had argued before the Court that Rakesh Asthana’s appointment was illegal as his name had surfaced in a diary recovered during a raid conducted by the Income Tax department. He argued that the diary showed the name of Rakesh Asthana as having received an illegal gratification from a company and CBI has recently registered an FIR for money laundering against the accused firm and some public servants. Demanding quashing of Rakesh Asthana’s appointment, the petitioner has also sought a direction to the Centre to transfer him out of the agency during the pendency of investigation.

Attorney General KK Venugopal, on the other hand, argued that Rakesh Asthana had an outstanding career and was looking after eleven zones and supervising high- profile scams including that of AgustaWestland, Kingfisher, Moin Qureshi and Hassan Ali.

Going through the minutes of the meeting of the Selection Committee, the Court noticed that though the secret/confidential letter dated 21.10.2017, furnished by the Director, CBI, enclosing an unsigned note on M/s Sterling Biotech Ltd. and related entities had referred to one Rakesh Asthana, there were no findings in the papers that the person mentioned therein is the same person under consideration for appointment and there is nothing about the veracity of the contents of the document. No further verified material was brought on record and the Committee decided to recommend the name of Rakesh Asthana for appointment as Special Director, CBI.

The Court hence held that the news items reported in the print and electronic media that no decision was taken with respect to the appointment on the post of Special Director, CBI in the meeting of the Selection Committee held on 21.10.2017 were factually incorrect. Also, the statement of the Professor of the University of London reported in the Indian Express appears to be based on the newspaper reports which have been found to be factually incorrect, and therefore, it has no substance. It was, hence, held that the appointment of Rakesh Asthana to post of Special Director, CBI does not suffer from any illegality. [Common Cause v. Union of India,  2017 SCC OnLine SC 1374, decided on 28.11.2017]

Case BriefsSupreme Court

Supreme Court: Considering the seriousness and urgency of the matter wherein it was alleged that attempts were made to bribe some Supreme Court judges in the matters relating to Medical admission scam, the bench of J Chelameswar and S. Abdul Nazeer, JJ said that the matter be heard by the Constitution Bench of the first five Judges and listed the matter on November 13, 2017.

The petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The Court, hence, agreed to hear the matter and said:

“The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately.”

As an interim measure, the Court directed that the case diary and all the related materials be kept in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017.

The controversy relates to de-registration of 46 medical colleges by Central Government for substandard facilities. In September, 2017, CBI arrested the former High Court judge on allegations of hatching a conspiracy to bribe public officials, including Supreme Court judges after Supreme debarred the colleges from admitting students for academic years 2017-18 and 2018-19. [Kamini Jaiswal v. Union of India, Writ Petition(s)(Criminal) No(s). 176/2017, order dated 09.11.2017]

Case BriefsSupreme Court

Supreme Court: Showing concern over the fate of the student who has been deprived of admission to the MBBS course, despite he or she being meritorious, vigilant and diligent and thereby abandoning the path of recalcitrance and eventually being found flawless, is forced to suffer non-admission to the course for which he had aspired for and found suitable because of lapses committed either by the counselling authority or the administrating authority intrinsically connected with the process of admission; the bench of Dipak Misra and R.F. Nariman, JJ said that when the courts have gone to the extent of saying that for the fault of the court, the litigant should not suffer, it is unimaginable that for the fault of the administrators or the counselling body or for some kind of evil designer, grant of compensation should be regarded as the lone remedy.

Relying upon the 2-judge bench decision in Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, the Medical Council of India contended that grant of compensation is the only possible remedy. The Court hence said that the aforementioned decision requires re-consideration by a larger bench as the redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonizing but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. [S. Krishna Sradha v. State of Andhra Pradesh, 2017 SCC OnLine SC 66, decided on 19.01.2017]