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IN THE HIGH COURT OF ORISSA, CUTTACK
Satrughana Pujahari, J.
Balasubramanian Prabhakaran - Appellant
Versus
State Of Odisha (Vigilance) - Respondent
Crl M C No. 2114 of 2017
Decided On : 05-03-2021
CRIMINAL - QUASHING OF CHARGE-SHEET - SECTION 482 OF CR.P.C. - JURISDICTION OF VIGILANCE POLICE TO CONDUCT DETECTION, SEARCH OR SEIZURE IN ANY MINE - SECTION 24 OF MMDR ACT - REQUIREMENT OF COMPLAINT UNDER SECTION 22 OF MMDR ACT - OFFENCE UNDER SECTION 21 OF MMDR ACT - VICARIOUS LIABILITY OF DIRECTORS OF COMPANY - SECTION 141 OF NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 319 OF CR.P.C. - CENTRAL EMPOWERED COMMITTEE APPOINTED BY APEX COURT - SECTION 30 OF MMDR ACT - REVISION ORDER - SECTION 13(2) READ WITH SECTION 13(1)(D) OF PREVENTION OF CORRUPTION ACT - SECTIONS 420, 379, 120-B OF I.P.C. - SECTION 21 OF MMDR ACT, 1957.
Fact of the Case:
Petitioner, the Managing Director of a private company, was arraigned as a co-accused in a charge-sheet filed by the Vigilance Police under Sections 120-B, 420, 379 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act). The petitioner challenged the charge-sheet and the order of cognizance passed by the Special Judge (Vigilance) on various grounds, including lack of jurisdiction of the Vigilance Police to conduct the investigation, non-compliance with the provisions of Section 22 of the MMDR Act, and the absence of a complaint as required under the said provision.
Finding of the Court:
The Court held that the Vigilance Police had the authority to conduct the investigation and file the charge-sheet, as the authorization under Section 24 of the MMDR Act was notified before the submission of the charge-sheet. The Court also held that the prosecution for the offence under Section 21 of the MMDR Act was not barred by the provisions of Sections 22 and 23A of the said Act, as the police had the power to investigate and submit a report before the Magistrate for taking cognizance under Section 190(1)(d) of the Code of Criminal Procedure. However, the Court quashed the order of cognizance against the petitioner on the ground that there was no provision in the IPC to impute vicarious liability to the Directors or officials of the company for the alleged omissions or commissions committed by the company, and there was no material on record to make out a prima-facie case that the petitioner acted against the company's will or interest much less for his personal gain.
Issues: 1. Whether the Vigilance Police had the jurisdiction to conduct the investigation and file the charge-sheet? 2. Whether the prosecution for the offence under Section 21 of the MMDR Act was barred by the provisions of Sections 22 and 23A of the said Act? 3. Whether the petitioner could be held vicariously liable for the alleged offences committed by the company?
Ratio Decidendi: 1. The Court held that the Vigilance Police had the authority to conduct the investigation and file the charge-sheet, as the authorization under Section 24 of the MMDR Act was notified before the submission of the charge-sheet. The Court relied on the decision of the Apex Court in Sanjay v. State of NCT Delhi, (2014) 59 OCR 522, which held that Section 21 of the MMDR Act is not a bar for taking action by police for theft of minerals. 2. The Court held that the prosecution for the offence under Section 21 of the MMDR Act was not barred by the provisions of Sections 22 and 23A of the said Act, as the police had the power to investigate and submit a report before the Magistrate for taking cognizance under Section 190(1)(d) of the Code of Criminal Procedure. The Court relied on the decision of the Apex Court in Kanwar Pal Singh v. The State of Uttar Pradesh and another, 2020 14 SCC 331, which held that the provisions of Section 22 of the MMDR Act do not operate as a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals. 3. The Court held that the petitioner could not be held vicariously liable for the alleged offences committed by the company, as there was no provision in the IPC to impute vicarious liability to the Directors or officials of the company for the alleged omissions or commissions committed by the company, and there was no material on record to make out a prima-facie case that the petitioner acted against the company's will or interest much less for his personal gain. The Court relied on the decisions of the Apex Court in Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609 and Shiv Kumar Jatia v. State of NCR of Delhi, (2019) 76 OCR 271.(SC).
Final Decision: The Court allowed the petition and quashed the charge-sheet and the order of cognizance passed by the Special Judge (Vigilance) against the petitioner.
JUDGMENT
S. Pujahari, J. - Present is an application filed under Section 482 of Cr.P.C. seeking quashment of the charge-sheet filed and the order of cognizance passed under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Sections 420, 379, 120-B of I.P.C. and Section 21 of the MMDR Act, 1957 in T.R. No.80 of 2011 in the court of the learned Special Judge (Vigilance), Keonjhar corresponding to VGR Case No.59 of 2009 registered by Balasore Vigilance Police Station, and also for quashment of further proceeding of the said case as against the present petitioner arraigned as a co-accused therein.
2. Heard the learned counsel appearing for the petitioner and Mr. P.K. Pani, the learned Sr. Standing counsel appearing for the Vigilance Department.
3. Perused the F.I.R., charge-sheet and other available papers on record as well as the impugned order of cognizance passed by the learned Special Judge (Vigilance), Balasore. It may be mentioned here that the case upon transfer is now pending for trial in the court of the learned Special Judge (Vigilance), Keonjhar.
4. Facts leading to the submission of charge-sheet and the consequential proceeding in the case referred to above, may be briefly stated as follows:-
(a) Smt. Indrani Patnaik arraigned as a co-accused in the case vide her application dated 08.05.1998 had applied for mining lease for extraction of iron and manganese ore over an area of 106.1127 hectors of land at village- Unchabali in the district of Keonjhar. Although the area of land so applied for by her included some forest land, by suppressing the said fact and ignoring some other omissions in the application, Sri Jagdish Prasad Agrawal, the then Joint Secretary, Steel and Mines Department, Government of Odisha recommended for grant of mining lease for twenty years in favour of Smt. Indrani Patnaik. It is further alleged that although upon such recommendation, the State Government approved grant of lease for twenty years, Sri Jagdish Prasad Agrawal by way of manipulation of the documents sent the recommendation letter to the Government of India showing the approved lease period to be of thirty years instead of twenty years. After receipt of approval from the Government of India, Sri Jagdish Prasad Agrawal communicated the same to Smt. Indrani Patnaik and issued proceeding in that connection without taking approval from the higher authorities concerned. Subsequently, when an area of 103.432 hectors of land out of the lease area was found to be forest land, recommendation was submitted to the Government of India for diversion of forest land, and surface right permission was given to the leaseholder Smt. Indrani Patnaik over an area of 37.9338 hectors including 35.270 hectors of forest land, and accordingly, possession was delivered to the leaseholder Smt. Indrani Patnaik on 07.05.2008.
(b) Sri Dipti Ranjan Patnaik, the Power of Attorney holder of the lessee Smt. Indrani Patnaik issued work order dated 24.02.2008 to the present petitioner who was the Managing Director of the Private Company, namely, M/s. Triveni Earth Movers Pvt. Limited to extract / raise iron ore, subgrade and other materials from Unchabali Iron and Manganese Mine of Smt. Indrani Patnaik, to transport the said mining materials to designate stockyards, for processing the Run Off Materials (ROM) into finished products etc.
(c) A joint physical verification led by Vigilance Team was conducted at the aforesaid Mines of Smt. Indrani Patnaik on 24.09.2009 which allegedly revealed that the physical stock of Iron Ore was 182637.695 MT as against the closing stock / book balance of 487205.870 MT leaving a shortage of 304568.170 MT of Iron Ore, cost of which was assessed to be Rs.1827409020.00 @ Rs.6000/- per MT, and the said quantity of Iron ore having been disposed of in a clandestine manner without any disclosure on record, there was evasion of sales tax and royalty to the tune of Rs.81319701.39. During the said joint verification, it was f
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