M.E. SHIVALINGAMURTHY V. CENTRAL BUREAU OF INVESTIGATION, BENGALURU
CRIMINAL APPEAL NO. 957 OF 2017 ON 07TH JANUARY 2020.
The appeal was brought before the Supreme Court under the bench comprising of Justice SANJAY KISHAN KAUL and Justice K.M. JOSEPH
The Court held that; It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. The accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution.
The appellant was Director of Mines and Geology in the State of Karnataka. There was a partnership firm by the name M/s Associated Mineral Company, the first and the second accused are the partners of the said firm. An undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit to the new partners.
The appellant knowingly made a false note in the file that he had discussed this matter with the Deputy Director (Legal) and directed Deputy Director, Mines, and Geology, Hospet for the issue of MDPs to the new partners. From the above, it is inferred that the appellant has acted in pursuance to the criminal conspiracy and abused his official position with a dishonest and fraudulent intention to cheat the Government of Karnataka. It also included that the accused conspired to commit theft of mineral ore which is government property.
The appellant has been accused of his acts under the following provisions, Indian Penal Code, 1860 Sections 120B, 420, 379, 409, 447, 468, 471 and 477A – Criminal Procedure Code, Section 227 – Prevention of Corruption Act, 1988 Sections 13(2) and 13(1)(c) and 13(1)(d) Mines and Minerals (Development and Regulation) Act, 1957 – Mineral Concession Rules, 1960.
Second accused (A2) to seventh accused(A7) filed applications under Section 227 of the Code of Criminal Procedure, 1973 seeking discharge, the Trial Court discharged the second accused and the appellant. Then in the appeal brought in the High Court the order of the trial court has been set aside by the impugned order of the High Court.
Shri Kapil Sibal, learned Senior Counsel appearing for the appellant made the following contentions. The appellant acted on the basis of the practice. He contacted the Deputy Director (Legal). There is no material to establish any criminal conspiracy as the appellant had directed MDP to be issued in the name of the firm and he also made it clear that permit is also not issued to the partners. Learned Counsel for the respondent-Central Bureau of Investigation, Bengaluru supported the order of the Trial Court.
Analysis of the case by the SC are the following
The Charge Witnesse-CW24- D. Hanumantha, undoubtedly, has given a statement indicating that the letter aforesaid was marked to him to process the same. He proposed the statement to get the legal opinion and it was submitted to the Additional Director, he also recommended the need to obtain a legal opinion.
Rule 37 of the Mineral Concession Rules of 1949, was also considered by the SC as the Trial Court relied on Sree Ramakrishna Mining Company case. In this case, the SC says that
“The appellant that on a number of reconstitutions took place in regard to the firm-AMC, and on no occasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA.” As per Section 227 of the Cr.PC the materials produced by the prosecution to be taken. Through the evidence and the witness if no offence can be proved against the accused it would benefit the accused. “No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.”
The SC dismissed the appeal by going through Section 227 of the CrPc and the appellant was discharged.
View/ Download the Judgment: M.E. SHIVALINGAMURTHY V. CENTRAL BUREAU OF INVESTIGATION, BENGALURU
– Manusri Ramakrishna
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