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2021 Supreme(Kar) 77
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Gagan Baderia S/o Gangarambaderia – Appellant
Versus
State of karnataka represented by its deputy superintendent of police - Respondent
Writ Petition No.44840 of 2019 (GMRES)
Decided On : 19-02-2021
Advocate Appeared:
For the Appellant :Sri. L M Chidanandayya, Advocate
For the Respondent: Sri. Venkatesh S Arbatti, Spl. Public Prosecutor
Point of Law: Without statutory clearance from the Central Government, permission was accorded to transport the same. When such being the case, the factual aspects of the disputed question and defences which have been raised in the ground of this petition cannot be decided in a proceeding under Section 482 of Cr.P.C. and it requires full fledged trial.
Headnote:
Constitution of India, 1950 - Articles 226 and 227 - Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 109, 120B - Prevention of Corruption Act - Section 12 - Writ of certiorari - Criminal Conspiracy and Abetment - Seeking quash of criminal proceedings - Petitioner has been arraigned as accused No.2 on ground that father of petitioner belongs to Indian Administrative Service and he was posted as a Commissioner and Director of Mines and Geology - This petitioner as son of Government Servant had accepted an amount from accused No.2 on behalf of his father in order to make official favour to accused No.1 by way of granting permission for shifting mines to the tune of 1,17,800 metric tonns of iron ore without the statutory clearance by the Central Government which is mandatory to operate mining area - Whether said amount has been received in respect of other transaction or in connection with music work, is the aspect which has to be considered during course of trial.
Finding of the court: Objections statement and rejoinder, all the facts have to be decided in a trial and defence cannot be appreciated in the proceedings under Section 482 of Cr.P.C. No doubt learned counsel for petitioner brought to the notice of this Court that accused No.1 made the statement with regard to the transfer of money in favour of accused No.2 contending that the same is in respect of the private transaction. When the prosecution relies upon the material with regard to the transportation of mines and permitting the transportation of mines without the statutory clearance and so also the material with regard to the transfer of money to the account of this petitioner, who being the son of accused No.3, all the disputed questions have to be considered only after conducting the full fledged trial - Court not find any merit in petition to invoke Section 482 of Cr.P.C. to quash proceedings.
Result: Petition is dismissed.
ORDER :
1. This writ petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. praying to issue an order, direction or writ in the nature of certiorari quashing the order dated 14.06.2019 passed in Spl.C.C.No.584/2019 on the file of XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act (for short ‘PC Act’) at Bengaluru City vide Annexure-A; issue an order, direction or writ in the nature of certiorari quashing the entire criminal proceedings, charge sheet initiated against the petitioner in Spl.C.C.No.584/2019 filed for the offences punishable under Sections 109, 120B of the IPC and Section 12 of the PC Act vide AnnexureA1 and issue such other reliefs as deem fit in the facts and circumstances of the case.
2. The factual matrix of the case is that this petitioner has been arraigned as accused No.2 on the ground that the father of the petitioner belongs to the Indian Administrative Service and he was posted as a Commissioner and Director of Mines and Geology on 12.9.2005. This petitioner as the son of the Government Servant had accepted an amount of Rs.20,00,000/-from accused No.2 on behalf of his father in order to make the official favour to accused No.1 by way of granting permission for shifting the mines to the tune of 1,17,800 metric tonns of iron ore without the statutory clearance by the Central Government which is mandatory to operate the mining area. Hence, the above offences are invoked.
3. The main contention of the petitioner is that he has been falsely arraigned as accused for the offence punishable under Sections 109, 120B of IPC and Section 12 of the PC Act, which amounts to an abuse of process of Court. Learned Special Judge also committed an error in taking the cognizance in the absence of charge sheet against the public servant since the same is without jurisdiction and without the authority of law. Unless the Government grants sanction against accused No.3, who is the father of the petitioner herein and when the charge sheet is not filed against accused No.3, learned Special Judge has failed to consider the allegation made against the petitioner that the petitioner has abated the commission of offences and has erroneously invoked Section 120B of IPC on the ground of criminal conspiracy and without obtaining the sanction under Section 19 of PC Act for filing the charge sheet against the public servant, learned Special Judge cannot issue the summons in a mechanical manner without due application of mind and also failed to consider the material available on record.
4. Learned Judge failed to consider the allegation against the petitioner that he has received a sum of Rs.20,00,000/-from the Director of M/s 21st Century Wire Rods Limited, which is neither the lessee nor in any manner connected with the mining lease to prosecute the petitioner for the offences punishable under Sections 109, 120B of IPC and Section 12 of PC Act. The private transaction between the petitioner and Mr. Gaurav Goel is sought to be made use of to prosecute the petitioner, which on the face of it is illegal and without the authority of law. Learned Special Judge failed to consider the statement of Mr. Gaurav Goel, who has categorically stated that an amount of Rs.20,00,000/-was paid as an advance to the petitioner and therefore, in their books of accounts, income tax returns, it has clearly been reflected as an advance for a private transaction. It is also contended that the father of the petitioner has not even passed any order in favour of M/s. Jantakal Enterprises to allege the criminal conspiracy against the petitioner. The offence invoked against the petitioner under the PC Act does not attract the ingredients of any such offences. The petitioner is a private citizen and carrying on the business in Music Industry and in connection with his Music Industry, the amount has been collected. Hence, learned Special Judge has committed an error in taking the
