Orissa High Court
Mr. Jitendra Nath Patnaik vs State Of Odisha (Vigilance) on 6 August, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4423 of 2024
Mr. Jitendra Nath Patnaik ..... Petitioner
-versus-
State of Odisha (Vigilance) ..... Opposite Party
For Petitioner ... Mr. Asok Mohanty,
Senior Advocate
M/s. Umesh Chandra Patnaik,
S. Patnaik, M.R. Sahoo,
S.M. Pattnaik
For Opposite Party ... Mr. Niranjan Moharana,
Standing Counsel for the
Vigilance Department
----------------
CORAM:
THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
________________________________________________________
Date of hearing : 22.05.2026 :: Date of judgment : 06.08.2026
________________________________________________________A.K. Mohapatra, J. The present CRLMC application is filed by the
Petitioner, one Jitendra Nath Patnaik, under section 482 of the Cr.P.C,
with a prayer to quash the F.I.R No.51 of 2009, registered on
Page 1 of 37
18.11.2009, before the Vigilance P.S Balasore for alleged commissionof offences punishable under Sections 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988 (hereinafter “P.C Act“); Section
120-B of the IPC; Section 21 of the ‘Mines and Minerals
(Development and Regulation) Act, 1957‘ (hereinafter “M.M.D.R
Act”) and Section 3 of the ‘Forest (Conservation) Act, 1980‘
(hereinafter “FCA”), along with the Chargesheet No.06 of 2013, filed
on 26.03.2013 in V.G.R Case No.19 of 2011, which, as of now is
pending before the Learned Additional District and Sessions Judge,
Bargarh.
FACTUAL MATRIX OF THE CASE
2. The crux of the factual matrix forming the basis of the present
controversy, is as follows; the father of the Petitioner, Late Bansidhar
Patnaik (“the Original Lessee”), was granted a mining lease on
31.07.1959 by the Government of Odisha for extraction of Manganese
Ore and Iron Ore over 260 hectares at Kalaparbat, Joda, Keonjhar, for
periods of 20 and 30 years respectively. Upon surrender of the
Manganese Ore lease in 1967, the leasehold area for Iron Ore stood
reduced to 106.392 hectares, valid up to 31.07.1989. Concurrently, a
partnership with the name and style of M/s B.D. Patnaik was
constituted by the Original Lessee in 1969, to which the Petitioner
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was admitted in 1974 upon attaining majority. The partnership deed
was periodically reconstituted, culminating in the Deed of Partnership
dated 01.04.1995, under which the Original Lessee’s five sons,
including the Petitioner, became partners in equal share.
3. On 30.07.1988, twelve months prior to expiry of the lease, the
Original Lessee applied for renewal (“the First Renewal
Application”), which, upon amendment, was confined to 25.633
hectares comprising 7.810 hectares of non-forest land and 17.823
hectares of forest land requiring a De-Reservation Proposal (“DRP”)
under the FCA. The First Renewal Application remained un-
adjudicated beyond the date of expiry of the lease. During such
pendency, the Petitioner, in consonance with the original lessee and
Mr.Rabindra Nath Patnaik, sought temporary/interim work permits in
1992, which were granted by the Director of Mines from time to time
between November 1991 and December 1994, at Annexure-2 series,
and a power of attorney dated 05.01.1994 was executed by the
Original Lessee in favour of the Petitioner and his elder brother, Late
Rabindra Nath Patnaik, to handle communication concerning the
mining lease.
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4. Upon the demise of the Original Lessee on 05.11.1995, Mr.
Rabindra Nath Patnaik is stated to have handled the primary
responsibilities of the firm and the Petitioner is stated to have been in
charge of correspondence with the Government authorities.
Nevertheless, all the five partners/brothers received profits from the
firm. Subsequently, the Ministry of Environment and Forest
(“MoEF”) granted the DRP, over 17.823 hectares on 03.09.1998, for a
duration of ten years or co-terminous with the lease period.
Eventually, on account of advancing age, Mr. Rabindra Nath Patnaik
executed a power of attorney dated 09.01.2006 in favour of his son,
Saroj Kumar Patnaik. Upon expiry of the lease period on 31.07.2009,
the partners surrendered the mining lease.
5. On 17.11.2009, a written complaint was lodged by the Deputy
Superintendent of Police, Vigilance Cell, Cuttack, at Balasore Police
Station, pursuant to which F.I.R. No. 51 of 2009 was registered on
18.11.2009 against certain named mining and forest officials and “the
Managing Partners of M/s B.D. Patnaik”, alleging commission of
offences under Section 13(2) read with 13(1)(d) of the PC Act;
Section 120-B of the IPC; Section 21 of the MMDR Act; and Section
3 of the FCA. Thereafter, on 26.03.2013, a Chargesheet was filed in
the aforesaid offences and Section 58 of the MCD Rules, arraigning
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the Petitioner, by name, as a Managing Partner of the firm, together
with fourteen other mining officials. The matter was then taken up by
the learned Special Judge (Vigilance), Keonjhar, renumbered as
V.G.R. Case No. 19 of 2011 corresponding to T.R. No.07 of 2013,
and cognizance of the alleged offences was taken on 11.06.2013.
6. In due course, the Petitioner filed an application for discharge
under Section 239 of the Cr.P.C, which was dismissed by the learned
Special Judge (Vigilance), Keonjhar, by order dated 19.07.2019,
holding him liable, prima facie, for continuing illegal mining in
connivance with the co-accused officials, occasioning loss to the State
exchequer to the tune of Rs.1,30,39,13,397/-. The revision preferred
against such dismissal, bearing CRLREV No.534 of 2019, along with
connected matters was dismissed by a Coordinate Bench of this Court
vide judgment dated 06.08.2020. Assailing the said judgment, the
Petitioner approached the Hon’ble Supreme Court in SLP (Crl.) No.
2278 of 2021, wherein interim protection was granted on 15.03.2021
directing that no coercive steps be taken against him. The Special
Leave Petition was ultimately dismissed on 15.10.2024, affirming the
judgment of this Court.
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7. It is also noticed that while this was the position, the Director of
Enforcement registered ECIR No.BBZO/13/2021, on 19.03.2021,
against the Petitioner under the Prevention of Money Laundering Act,
2002 (“PMLA”), culminating in a Prosecution Complaint Case No.20
of 2023 dated 30.11.2023 before the Special Judge, Khurda; the said
proceedings, being independent of the Chargesheet impugned herein,
do not form the subject-matter of, and have not been examined in, the
present application. It is in the aforesaid backdrop that the present
application under Section 482 Cr.P.C has been filed with the prayer as
mentioned hereinabove.
CONTENTIONS OF THE PETITIONER
8. Heard Mr. Asok Mohanty, learned senior counsel appearing on
behalf of the Petitioner. The learned senior counsel, at the very outset,
has submitted that the impugned FIR does not, on its face, name the
Petitioner as an accused or suspected person. Rather, it refers only to
three named mining/forest officials and M/s B.D. Patnaik Mines and
others. It was contended that the Petitioner was implicated for the first
time only during the subsequent investigation, and that the Opposite
Party does not have any material to show any active involvement of
the Petitioner in the present crime. The learned senior counsel
submitted that since the firm has five partners with equal
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shareholding, the isolation of the Petitioner alone, some four years
later at the chargesheet stage, without any allegation against the
remaining partners, clearly betrays the mala fides of the Opposite
Party. It was stated that even though the Opposite Parties have levied
allegations of illegal mining against the firm, they have failed to
attribute any specific role to the present Petitioner. Given the delay of
four years in filing the Chargesheet, it can very well be inferred that
the implication of the Petitioner in the present case is merely an
afterthought without any logical basis.
9. In fact, the learned senior counsel has pointed out to this Court
that the role of the present Petitioner was limited to mere
correspondence with the Government and that the management of the
day-to-day affairs of the firm, including operation of its bank account
and signing of statutory returns, was discharged throughout by Mr.
Rabindra Nath Patnaik and, after his demise, by Mr. Saroj Kumar
Patnaik. In corroboration of his contention, the learned senior counsel
has referred to the letter dated 05.07.2022 of the Director of Mines, at
Annexure-13 and the letter dated 03.08.2022 of the State Bank of
India, Joda Branch. It was contended that all the documents relating to
the management of the firm were signed by either Mr. R. N. Patnaik,
or Mr. Saroj Kumar Patnaik, and that the Petitioner’s role in the firm
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was confined to correspondence with the State authorities on
instructions of the Managing Partner. Learned senior counsel has
stated that there is no material on record which demonstrates the
Petitioner’s personal and active involvement in the alleged illegal
mining.
10. Next, the learned senior counsel stated that hypothetically, and
without admitting such, even if it is assumed that the Petitioner was
responsible for the management of affairs of the firm, since the
operations of the firm were continuing pursuant to the extension of
operation granted from time to time, it cannot be said that any illegal
mining activity was carried out by the firm, and, by extension, the
Petitioner. It was contended that the mining operations conducted
pending adjudication of the First Renewal Application were carried
out under interim work permits periodically granted and extended by
the Director of Mines, and the requisite DRP was ultimately granted
on 03.09.1998. Similarly, learned senior counsel submitted that it is
the Opposite Party’s acknowledgement that the firm had applied for a
De-Reservation Proposal, pursuant to which the MoEF, vide letter
dated 03.09.1998, permitted the firm to carry on mining operation in
the forest area for a period of 10 years, which was co-terminous with
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the permission under the MMDR Act. As such, the mining operations
cannot, in any way, be characterised as illegal mining.
11. The learned senior counsel further submitted that the Petitioner
has already been punished, along with the other partners, following
the decision in W.P.(C) No.114 of 2014 (Common Cause v. Union of
India and Ors.), in the shape of a fine amounting to Rs.8,96,01,825/-
for operating mines without a valid DRP, under Section 2 of the FCA.
Therefore, the Petitioner cannot be subjected to double jeopardy. A
No-Due certificate has also been issued in favour of the Petitioner and
the firm regarding full payment of the fine amount. Further, it was
stated that an independent Central Empowered Committee (“CEC”)
was appointed by the Hon’ble Supreme Court in the aforesaid writ
petition, which, after conducting a detailed fact finding exercise into
the allegations of illegal mining in the state of Odisha, did not return
any findings with regard to the involvement of the firm in any illegal
mining operations. Accordingly, the learned senior counsel submitted
that since a penalty imposed on the Petitioner has already been
discharged, a parallel criminal prosecution alleging illegal mining on
the self-same facts is, therefore, said to be impermissible.
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12. Referring to the scheme of the MMDR Act, specifically Section
22 thereof, the learned senior counsel contended that cognizance of
any offence punishable under the MMDR Act can be taken only when
the complaint with respect to such offences is made in writing by a
person authorised on behalf of the State or the Central Government. It
is the learned counsel’s contention that the complaint dated
17.11.2009, on which the present FIR dated 18.11.2009 came to be
registered, was lodged by the DSP Vigilance, who was not, at that
point in time, an authorised person. Likewise, the learned senior
counsel referred to Rule 2(1)(b) of the OMPTS Rules, 2007 and
Schedule-I thereof, and submitted that fifteen mining officers have
been designated as competent authority for various jurisdictions.
Similarly, referring to the Notification dated 19.12.2009 of the
Department of Steel and Mines, Government of Odisha, at Annexure-
14, the learned senior counsel pointed out that the Government, in
exercise of its powers under Sections 22 and 23B of the MMDR Act,
has authorised the Director of Mines and the Joint Directors to
exercise the powers of seizure/detection/confiscation in connection
with illegal mining activities in the state.
13. In addition to the aforesaid contention, the learned senior
counsel contended that even if it is assumed, but not admitted, that the
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DSP Vigilance was authorised to file the instant complaint, it would
be bad in law since the Notification dated 14.01.2010 of the Home
Department, at Annexure-15, which was promulgated after the
abovementioned notification dated 19.12.2009, clearly states that any
investigation/enquiry initiated under the MMDR Act, must be
preceded by an approval or sanction from the Competent Authority.
The notification also specifies that officers of and above the rank of
Inspector of Police under the Director of Vigilance, Odisha are
empowered to conduct investigation/enquiry and to take legal actions
under the provisions of the IPC, other relevant Acts and Rules
pertaining to illegal mining in the State. It was stated that in the
present case, the Opposite Parties have obtained no approval/sanction
of the competent authority and no authorisation for institution of the
Complaint or to conduct inquiry/investigation under the
corresponding Act.
14. In order to substantiate his claims, the learned senior counsel
for the Petitioner has placed reliance on Balasubramanian
Prabhakaran v. State of Odisha (Vigilance), reported in 2021 SCC
OnLine Ori 147; Nandalal Rungta v. State of Odisha (Vigilance),
reported in 2022 SCC OnLine Ori 744; Surendranath Agarwal v.
State of Odisha, reported in MANU/OR/0261/2009; 2026 (I) OLR
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301; and State (NCT of Delhi) v. Sanjay, reported in (2014) 9 SCC
772, for the proposition that cognizance of an offence under the
MMDR Act cannot rest upon a complaint by a person not shown to be
authorised, and that the consequent proceedings are liable to be set
aside. Additionally, the learned senior counsel has stated that in view
of the observation in Anand Kumar Mohatta v. State (NCT of Delhi),
reported in (2019) 11 SCC 706, a petition for quashing of an FIR
remains maintainable notwithstanding the subsequent filing of a
chargesheet.
15. Finally, the learned senior counsel for the Petitioner contended
before this Court that the F.I.R in the present case is politically
motivated and borne out of vengeance, and does not reveal any
material to establish the allegations against the Petitioner. As such, the
attending circumstances of the present case, i.e. the timing of the FIR
within months of the Petitioner’s rejection of a political overture, the
omission of his name from the FIR, and his belated implication in the
Chargesheet without specific attribution of role, bring the case
squarely within the 1st, 2nd, 6th and 7th grounds enumerated by the
Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, reported
in 1992 AIR 604, at paragraph 102, warranting the exercise of
inherent powers by this Court. The learned senior counsel contended
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that the conduct of the Opposite Parties is motivated by mala fides
since the Petitioner has been isolated and no proceeding has been
initiated against any other partners of the firm. Criminal proceedings
should not be used to harass individuals. In such view of the matter, it
was stated that the impugned F.I.R No.51 of 2009 dated 18.11.2009,
at Annexure-1 and the Chargesheet dated 26.03.2013, at Annexure-8,
be quashed.
CONTENTIONS OF THE OPPOSITE PARTIES
16. Heard Mr. N. Maharana, learned Additional Standing Counsel
appearing on behalf of the Opposite Party-Vigilance Department. The
prosecution case, in substance, is that illegal mining and theft of
minerals occasioned loss to the State exchequer of the order of
Rs.130.39 crores, together with equivalent pecuniary advantage
conferred upon the Petitioner who has acted in collusion with the
mining officials in violation of the provisions under the PC Act, the
IPC, the MMDR Act, and the FCA. It was contended by the learned
opposing counsel that the Petitioner being a private person and the
rest of the accused persons being government officials, no
sanction/prior permission was required for lodging an F.I.R or
initiating an investigation. Further, referring to the Notification dated
14.01.2010, learned ASC submitted that it specifically empowers
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officers of and above the rank of Inspector of Police in the Vigilance
Directorate, Odisha, to investigate and take legal action, including
filing of Chargesheet, pertaining to illegal mining, subject to sanction
of the competent authority as and when required.
17. Equally, the learned counsel for the State-Vigilance
Department, drawing attention to Section 22 of the MMDR Act,
stated that a bar under the Act is on the “lodging of complaint” for the
purpose of taking cognizance and not upon “filing of the
chargesheet”. It was stated that the F.I.R in the present case has been
registered under Section 156 of the Cr.P.C. Sub-sections (1) and (2)
thereof empower “any officer-in-charge of a police station” to
investigate a cognizable offence without a Magistrate’s order and, bar
any challenge to the investigation on the ground that the officer was
not empowered to investigate, the Vigilance Police were competent to
register the FIR and initiate investigation in the matter. It was
contended that by the time the Chargesheet was filed (26.03.2013)
and the cognizance was taken (11.06.2013), the concerned Vigilance
officer stood duly empowered under the Notification dated
14.01.2010, and the Chargesheet was filed only after obtaining
sanction for prosecution from the State Government. Such sanction,
being accorded by a higher authority, cannot be equated to absence of
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sanction. Moreover, since the F.I.R was registered under Section 154
Cr.P.C (and not Section 200 Cr.P.C), and the Petitioner never having
assailed the order of cognizance at the initial stage, the authority
designated to investigate and file chargesheet, i.e. the Vigilance
Department, cannot be said to have acted without jurisdiction.
18. Next, the learned counsel for the Opposite Party-Vigilance
Department submitted that identical contentions were raised by the
Petitioner in his discharge application filed under Section 239 of the
Cr.P.C (which was dismissed on 19.07.2019) and in the revision
bearing CRLREV No.534 of 2019 along with other allied matters
(dismissed vide judgment dated 06.08.2020). In the aforesaid
dismissal orders, relying on Notification dated 14.01.2010, this Court
had specifically repelled the contention of the Petitioner that the
Vigilance Police were not the authorised person. Learned counsel
further stated that the aforesaid judgment passed in the CRLREV
No.534 of 2019 has been affirmed by the Hon’ble Supreme Court in
SLP (Crl.) No.2278 of 2021 by keeping open the issue regarding the
competency of the officer lodging complaint, which is to be decided
at the stage of trial. Moreover, the Apex Court has also not remitted
the matter to this Court either for adjudication or reconsideration. As
such, the learned counsel for the Vigilance Department contended that
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the same contention, which has been settled, cannot be re-agitated in a
subsequent application under Section 482 Cr.P.C.
19. Notably, the learned counsel for the State-Vigilance
Department argued before this Court that a second or subsequent
petition under Section 482 Cr.P.C is not maintainable on grounds
available at the time of filing/decision of the first quashing petition,
absent a demonstrated change of circumstances, as held in M.C.
Ravikumar v. D.S. Velmurugan, bearing 2025 INSC 888 (paragraphs
11 to 15). In addition, relying upon the pronouncements of the
Hon’ble Apex Court in State of Gujarat v. Mohanlal Jitamalji
Porwal, reported in AIR 1987 SC 1321; H.N. Rishbud v. State of
Delhi, reported in AIR 1955 SC 196; R.A.H. Siguram v. Sankar
Gowda, reported in (2017) 16 SCC 126; Union of India v. T.
Nathamuni, reported in (2014) 16 SCC 285; State of M.P. v.
Virender Kumar Tripathi, reported in (2009) 15 SCC 533; Ashok
Tshering Bhutia v. State of Sikkim, reported in (2011) 4 SCC 402;
and NCT of Delhi v. Sanjay, reported in (2014) 9 SCC 772, the
learned counsel submitted that even assuming, without admitting, that
there was a formal defect or irregularity touching upon the authority
of the complainant, such defect does not vitiate the proceeding where
a prima facie case is otherwise made out and, has no direct bearing on
Page 16 of 37
the competence of the Court to take cognizance or proceed with the
trial in the matter.
20. So far as the judgements relied upon by the Petitioner are
concerned, the learned counsel for the State-Vigilance Department
attempted to distinguish such judgements from the present case on the
ground that in Balasubramanian Prabhakaran (supra) the
proceeding was quashed on the distinct ground of vicarious liability of
a Managing Director without arraigning the company. In Nandalal
Rungta (supra), the coordinate Bench itself rejected the contention
that Vigilance officials were not “persons authorised”, quashing
having been founded on an unrelated Multi-Disciplinary Committee
report exonerating the petitioner therein of illegal mining. Similarly, it
was stated that in Surendranath Agarwal (supra), the investigating
officer was an ordinary police officer, not a Vigilance officer covered
by the Notification dated 14.01.2010, a material distinction from the
present case.
21. In view of the aforesaid contentions, the learned counsel
appearing for the State-Vigilance Department submitted that the
present CRLMC petition, being devoid of merit, is liable to be
dismissed forthwith.
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ANALYSIS OF THE COURT
22. Heard the learned senior counsel for the Petitioner and the
learned Additional Standing Counsel for the Vigilance Department,
perused the F.I.R, the Chargesheet, the written submissions by the
parties and other documents available on record. The Petitioner, by
filing the present CRLMC petition, has impugned the F.I.R and the
subsequent chargesheet under the abovementioned offences on the
primary grounds that the complaint in the present case, which gave
rise to the F.I.R, was made by an unauthorised person, that the mining
operations by the Petitioner’s firm flagged as illegal, were actually
carried out with the approval of the mining department, that the
present criminal proceeding against the Petitioner is without any
material basis and attracts the bar of double jeopardy in light of the
earlier penalization under the FCA, and certain other grounds.
23. In order to fairly adjudicate the validity of the prayer made by
the Petitioner, this Court is required to determine the following issues:
Firstly, whether F.I.R. No.51 of 2009 and the consequential
Chargesheet dated 26.03.2013 are vitiated for want of a complaint by
a “person authorised” within the meaning of Section 22 of the MMDR
Act, having regard to the fact that the Notifications dated 19.12.2009
and 14.01.2010 relied upon by the Opposite Party post-date the
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complaint dated 17.11.2009 and, whether, assuming any infirmity inthe authorisation to lodge the complaint, such infirmity vitiates the
taking of cognizance and the consequent trial, having regard to the
settled principle that defects in investigation do not, without more,
affect the competence of the Court; Secondly, whether the present
application, being a subsequent attempt to press a contention already
addressed by a coordinate Bench of this Court in its judgment dated
06.08.2020 (later affirmed by the Hon’ble Supreme Court), is barred
by the principle against successive petitions under Section 482
Cr.P.C., or is saved by the liberty expressly reserved by the Hon’ble
Supreme Court in its order dated 15.10.2024; Thirdly, whether the
material on record discloses a prima facie case against the Petitioner
personally, having regard to his role as a partner of the firm, so as to
attract the Bhajan Lal parameters; and Fourthly, whether the penalty
already imposed and discharged under the FCA operates as a bar to
continuance of the present prosecution.
24. Before proceeding any further, it is apposite to establish that so
far as the quashing of criminal cases is concerned, the fundamental
principles governing this Court’s exercise of its inherent powers under
section 482 Cr.P.C are now well settled via State of Haryana v. Ch.
Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein the Hon’ble
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Supreme Court has summarised the principles governing the quashing
of FIR/ complaints/ criminal cases in paragraph 102, which have been
reiterated recently in B.N. John v. State of U.P., reported in 2025
SCC OnLine SC 7 and in Ajay Malik v. State of Uttarakhand,
reported in 2025 SCC OnLine SC 185 (specifically in paragraphs 8
and 9). In the same vein, in Punit Beriwala v. State (NCT of Delhi),
reported in 2025 SCC OnLine SC 983, the Hon’ble Supreme Court, in
paragraph 29, has laid down that the High Court, while exercising its
inherent jurisdiction under section 482 Cr.P.C, has to take the
allegations in the FIR at face value and such powers must be
exercised only in exceptional cases where non-interference would
lead to miscarriage of justice. Additionally, while exercising the
inherent powers under Section 482 Cr.P.C, it must be borne in mind
that no mini-trial is to be conducted. Instead, the High Court is
required to restrict its inquiry to the allegations made in the complaint
or FIR, and ascertain whether such allegations, if accepted as true on
their face, constitute a prima facie offence (see Abhishek Singh v.
Ajay Kumar & Ors., bearing 2025 INSC 807 and CBI v. Aryan
Singh, reported in 2023 SCC OnLine SC 379). At this stage, a
meticulous analysis of the factum of taking cognizance of an offence
by the Magistrate is neither called for, nor is it permissible to
Page 20 of 37
undertake appreciation of evidence [see paragraph 13 of Dhruvaram
Murlidhar Sonar v. State of Maharashtra, reported in (2019) 18
SCC 191].
25. Returning to the facts of the present case, specifically Section
22 of the MMDR Act, quoted hereinbelow, there is a clear bar to the
effect that no court shall take cognizance of any offence punishable
under the Act or any allied rules except upon a written complaint by a
person authorised in this behalf by the Central or State Government. It
is not disputed that the written complaint dated 17.11.2009, on which
the impugned F.I.R. No.51 of 2009 was registered the following day,
predates both the Notification dated 19.12.2009 (declaring certain
officers, not including the DSP Vigilance, as “competent authority”
under Rule 2(1)(b) of the OMPTS Rules, 2007) and the Notification
dated 14.01.2010 (empowering Vigilance officers of and above the
rank of Inspector to investigate and take legal action pertaining to
illegal mining, subject to sanction of the competent authority as and
when required). It is also clear that neither Notification purports to
operate retrospectively.
“22. Cognizance of offences.― No court shall take
cognizance of any offence punishable under this Act
or any rules made thereunder except upon complaint
in writing made by a person authorised in this behalf
by the Central Government or the State Government.”Page 21 of 37
26. Be that as it may, this Court is unable to accept, without
qualification, the submission of the Petitioner that this infirmity,
without more, vitiates the F.I.R, the Chargesheet and the entire
proceeding ab initio. The bar under Section 22 operates upon the
taking of cognizance, not upon registration of an FIR or conduct of
investigation. Cognizance in the present matter was taken on
11.06.2013, well over three years after the Notification dated
14.01.2010 came into force, and after the Chargesheet dated
26.03.2013 had been filed following sanction for prosecution obtained
from the State Government. The question, therefore, is not whether
the Vigilance Department possessed authority in vacuo at the moment
of the original complaint, but whether the authority possessed at the
point of cognizance suffices to sustain the proceeding,
notwithstanding that the FIR traces its origin to a complaint lodged
before the enabling Notifications.
27. The precise question as to whether a defect touching the
authority of the complainant/investigating agency at the threshold
vitiates cognizance validly taken thereafter, stands substantially
answered in the pronouncement of the Apex Court in H.N. Rishbud v.
State of Delhi, reported in AIR 1955 SC 196, wherein it was held that
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a defect or illegality in investigation, however serious, has no direct
bearing on the competency of the Court to take cognizance or on the
procedure relating to trial. This principle has been consistently
reiterated in State of M.P. v. Ramesh C. Sharma, reported in (2005)
12 SCC 628 and State of M.P. v. Virender Kumar Tripathi, reported
in (2009) 15 SCC 533, along with the decision relied on by the
Opposite Parties in Ashok Tshering Bhutia v. State of Sikkim,
reported in (2011) 4 SCC 402. At paragraph 20 of Ashok Tshering
Bhutia (supra), the Hon’ble Apex Court has clarified that when
cognizance has been taken in a case, and the case has proceeded to
termination, unless a miscarriage of justice is shown to have been
caused, the invalidity of the preceding investigation does not vitiate
the result. Moreover, it is worth recalling that a mere
error/omission/irregularity in sanction is not to be considered fatal
unless such error/omission/irregularity has occasioned a failure of
justice. Once valid cognizance has been taken by the Court, with
jurisdiction to do so under the Cr.P.C, any presumed
irregularity/invalidity of the police report would not be considered the
foundation of jurisdiction of the Court to take cognizance, and cannot
vitiate the same [reference in this regard may be had to Kalpnath Rai
v. State, reported in (1997) 8 SCC 732; State of Orissa v. Mrutunjaya
Page 23 of 37
Panda, reported in (1998) 2 SCC 414; Shankerbhai Laljibhai
Rot v. State of Gujarat, reported in (2004) 13 SCC 487].
28. These authorities, read together, indicate that the question of
whether the DSP Vigilance was, on 17.11.2009, a “person authorised”
is not, without a further demonstration of resultant miscarriage of
justice, a ground sufficient in itself to quash the present F.I.R and
Chargesheet at the threshold under Section 482 Cr.P.C, more
particularly where, by the time of cognizance, the Vigilance
Department stood conclusively vested with authority under the
Notification dated 14.01.2010, and sanction for prosecution had been
obtained from the State Government prior to filing of the Chargesheet
(which, it is pertinent to mention, is a disputed question of fact, since
both the Petitioner and the Prosecution have taken opposite stance as
to whether a sanction/approval was actually obtained).
29. Having said that, this Court is not unmindful of the
countervailing authorities relied upon by the Petitioner
[Balasubramanian Prabhakaran v. State of Odisha (Vigilance),
reported in 2021 SCC OnLine Ori 147; Nandalal Rungta v. State of
Odisha (Vigilance), reported in 2022 SCC OnLine Ori 744; and
Surendranath Agarwal v. State of Odisha, reported in
MANU/OR/0261/2009], each concerned, in some measure, with
Page 24 of 37
authorisation under Section 22 of the MMDR Act. On examination,
however, the submission of the Opposite Party that these decisions are
distinguishable merits acceptance. In Nandalal Rungta (supra), the
coordinate Bench itself repelled the identical contention, holding it
“unacceptable” in para 23 that Vigilance officials were not “persons
authorised”, the quashing therein resting on the independent ground
that the Multi-Disciplinary Committee report found no violation
attributable to the Petitioner therein. Similarly, in Surendranath
Agarwal (supra), the investigation had been conducted by an ordinary
police officer rather than a Vigilance officer covered by the
Notification dated 14.01.2010, a material distinction, since the present
case concerns the Vigilance Department specifically empowered
under that Notification, the objection here going only to the date of
the original complaint, not to the Department’s want of power
altogether. The first issue is, therefore, answered accordingly. So far
as Balasubramanian Prabhakaran (supra) itself is concerned, that
decision is equally distinguishable, inasmuch as, the defect found
therein was a total absence of any written complaint under Section 22
of the MMDR Act, the prosecution having rested solely on a police
Chargesheet. In the present case, a complaint was in fact lodged, and
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only the complainant’s authorisation on that date, a curable infirmity
not a jurisdictional void, is disputed.
30. Next, the submission of the Opposite Party touching the
maintainability of a second or successive Section 482 Cr.P.C
application assumes considerable significance. It is evident from the
record that the precise contention now pressed, that the DSP Vigilance
lacked authority to lodge the complaint under Section 22 of the
MMDR Act, was raised by the Petitioner in the discharge application
under Section 239 Cr.P.C, rejected by order dated 19.07.2019, and
was again pressed in CRLREV No.534 of 2019, where this Court in
its judgment dated 06.08.2020 (at paragraphs 15-16 thereof),
expressly considered and rejected the contention, holding that the
Notification dated 14.01.2010 conferred the requisite authority upon
the Vigilance Police. The principle enunciated in M.C. Ravikumar v.
D.S. Velmurugan, reported in 2025 INSC 888, and contended by the
Opposite Parties, that a second quashing petition under Section 482
Cr.P.C raising grounds available at the time of the first quashing
proceeding is impermissible unless there is a demonstrated change of
circumstances, would ordinarily weigh heavily against entertaining
the present CRLMC petition on this very ground.
Page 26 of 37
31. However, the aforesaid principle must yield to the specific
liberty reserved by the Hon’ble Supreme Court in its order dated
15.10.2024 dismissing SLP (Crl.) No. 2278 of 2021, whereby it was
clarified that the contentions raised by the Petitioner/Accused with
regard to the competence of the officer(s) lodging complaint, are kept
open. This Court is of the considered view that the said clarification
constitutes a specific and deliberate carving out by the Court of last
resort, of this precise issue from the otherwise concluded findings
recorded in the judgment dated 06.08.2020, thereby permitting the
Petitioner to press the point afresh notwithstanding the ordinary bar
against re-agitation. Ergo, the question that consequently arises is not
whether the Petitioner may raise the contention at all, the Supreme
Court’s order settles that he may, but before which forum and at what
stage does such contention properly fall to be determined.
32. In this regard, this Court is of the considered view that the
challenge mounted by the Petitioner raises questions concerning the
validity of the sanction, authorisation and investigation which cannot
be adjudicated in isolation from the disputed factual matrix giving rise
to them, i.e. the precise sequence and interplay between the date of the
written complaint and the date of registration of the FIR (17.11.2009
and 18.11.2009 respectively); the dates of the enabling Notifications
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(19.12.2009 and 14.01.2010) and their impact on the facts of the
present case; the extent of surface right permissions and mining lease
granted, both temporal and territorial; the extent of validity of the
diversion proposal granted by the MoEF, duration-wise and territory-
wise; and other similar factual disputes. The aforesaid controversies,
which are overwhelmingly factual in nature, are more appropriately
examined at the stage of trial, where the attending facts and
circumstances may be established fully through evidence from both
sides, rather than being conclusively determined on affidavits and
annexures at the threshold while adjudicating an application under
Section 482 Cr.P.C. The liberty reserved by the Hon’ble Supreme
Court is, accordingly, more appropriately given effect to by directing
that the contention be urged before, and adjudicated by, the learned
trial Court, rather than by quashing the proceeding altogether at this
stage. The second issue is answered accordingly.
33. So far as it concerns the third issue and the contention of the
Petitioner that his implication was arbitrary, belated and without
specific attribution of role unto him, this Court notes that the
Chargesheet dated 26.03.2013 does arraign the Petitioner by name as
a managing partner of the firm, and the order dated 19.07.2019
dismissing the discharge application, at Annecxure-10, records a
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prima facie finding of his complicity, along with the co-accused, in
continuing mining operations without requisite renewal, occasioning
loss to the State exchequer. The aforesaid finding has been affirmed in
revision on 06.08.2020, and the Special Leave Petition assailing the
same has been dismissed. While the Petitioner’s submissions, that the
management of the firm’s affairs vested substantially in Mr. Rabindra
Nath Patnaik and subsequently in Mr. Saroj Kumar Patnaik, and that
his own role was confined to mere correspondence with the
Government, are not without force and may bear materially upon his
culpability, the assessment of the precise extent of his involvement as
a Partner, and the applicability of Section 23 of the MMDR Act
(which extends liability for an offence by a “company”, defined to
include a firm, to persons in charge of and responsible for its conduct,
subject to the defence of absence of knowledge or due diligence)
necessarily involve appreciation of evidence more appropriately
undertaken at trial.
34. Moreover, the categories enumerated in State of Haryana v.
Bhajan Lal, reported in 1992 AIR 604, at paragraph 102 (a) to (c),
permit quashing only where the allegations taken at face value do not
disclose commission of an offence. At present, that is not, on the
material before this Court, demonstrably the position. The Petitioner
Page 29 of 37
standing named as a partner of a firm alleged to have conducted
mining operations beyond the terms of its permits, the question of his
personal knowledge and diligence remains a matter for evidence, best
resolved at trial. As such, the 1st, 2nd, 6th and 7th grounds in para 102 of
Bhajan Lal (supra) relied upon by the Petitioner, do not seem to
support his overall stance since the present case is not one where the
allegations in the FIR fail to disclose a prima facie offence against the
Petitioner or a cognizable offence altogether (1st and 2nd ground).
Equally, there is no express statutory embargo against his prosecution,
nor is there any material to suggest that the proceedings are actuated
by manifest mala fides so as to render them legally unsustainable or
productive of a failure of justice (6th and 7th ground).
35. As to the allegation that the F.I.R was motivated by political
animosity and mala fides, while the timing of the complaint, i.e.
shortly after the Petitioner’s electoral success and his stated rejection
of a political overture, is a circumstance he is entitled to place before
the trial Court, mala fides of an informant does not, without more,
ordinarily justify quashing at the threshold where the material
otherwise discloses commission of a cognizable offence. It is well
settled that even a person actuated by malice may set the law in
motion, and the truth or otherwise of the allegations remains a matter
Page 30 of 37
for trial. Moreover, a criminal prosecution that is otherwise justifiable
and based on adequate evidence will not be vitiated on account of
political vendetta or mala fides of the complainant/informant
[reference may be had to Sheonandan Paswan v. State of Bihar,
reported in (1987) 1 SCC 288; State of Bihar v. J.A.C. Saldanha,
reported in (1980) 1 SCC 554; State of Bihar v. P.P. Sharma,
reported in 1992 Supp (1) SCC 222, specifically paragraphs 22 and
23; and para 9 of State of Punjab v. Gurdial Singh, reported in
(1980) 2 SCC 471]. The adequacy of the evidence yet to be laid and
the justifiability of the prosecution, in the considered view of this
Court, are best tested at the stage of trial, upon contest between the
parties.
36. Even in Bhajan Lal (supra), paragraph 102 (g) of which has
been relied upon by the Petitioner, the Hon’ble Apex Court, in
paragraph 103, has sounded a note of caution that the High Court
must exercise its power of quashing only in the rarest of rare cases
and ought not to embark on an enquiry into the reliability or
genuineness or otherwise of the allegations made in the F.I.R. In fact,
the Hon’ble Supreme Court has also observed, towards the end of
paragraph 108, that when faced with only allegations and
recriminations but no evidence thereto, no finding on the question of
Page 31 of 37
malafides could be rendered at that stage. Even if it is assumed,
hypothetically, that the complaint was rife with personal animosity,
that alone cannot be a ground to discard a serious allegation. This
exercise, i.e. testing the veracity of the allegations and the strength of
the prosecution claim vis-Ã -vis the Petitioner’s stance, is best carried
out against the touchstone of evidence led by both sides, at the stage
of trial, before a trial Court. The third issue is answered accordingly.
37. Another facet of the controversy is the plea that the Petitioner
cannot be prosecuted a second time, having already discharged a
compensatory sum pursuant to the judgment dated 02.08.2017 in
Common Cause v. Union of India and Ors., bearing W.P.(C) No.114
of 2014. This plea does not, in the considered view of this Court,
squarely attract the doctrine against double jeopardy as ordinarily
understood. The protection under Article 20(2) of the Constitution,
and the cognate bar under Section 300 of the Cr.P.C, presupposes a
prior prosecution before a Court or judicial tribunal culminating in
punishment for the same offence. On the material presently on record,
neither requirement stands satisfied. As held in State of Bombay v.
S.L. Apte, reported in AIR 1961 SC 578, the constitutional protection
is attracted only where the offences in the two proceedings are
identical in their legal ingredients, and not merely because they arise
Page 32 of 37
from the same factual matrix. Tested against these principles, the
compensatory sum of Rs. 8,96,01,825/- paid pursuant to the
proceedings before the Central Empowered Committee was restitutive
in character, intended to address the civil consequences of the failure
to obtain the requisite forest clearance, and cannot be equated with a
criminal punishment so as to attract the constitutional or statutory bar
against a subsequent prosecution.
38. The proceedings in Common Cause (supra) were instituted in
the exercise of the Supreme Court’s writ jurisdiction to examine
widespread regulatory violations relating to mining operations and to
determine the appropriate civil, restitutive and regulatory
consequences flowing therefrom. They neither constituted a criminal
prosecution nor culminated in a conviction or acquittal for any
offence. The compensatory amount directed to be paid pursuant to
those proceedings was therefore a civil consequence of regulatory
violations and cannot be equated with “prosecution and punishment”
so as to attract Article 20(2) of the Constitution or Section 300 Cr.P.C.
39. The present prosecution, on the other hand, alleges distinct
offences of criminal conspiracy, criminal misconduct and
misappropriation under the PC Act, IPC, and the MMDR Act, each
involving ingredients fundamentally different from those underlying
Page 33 of 37
the earlier compensatory proceedings. This conclusion also finds
support in Institute of Chartered Accountants of India v. Vimal
Kumar Surana, reported in (2011) 1 SCC 534, wherein the Supreme
Court held that disciplinary or regulatory proceedings and criminal
prosecution, being distinct in their nature, object and ingredients, may
proceed independently without offending the rule against double
jeopardy. That the Central Empowered Committee did not record a
specific finding of “illegal mining” against the firm is, nevertheless, a
circumstance germane to the merits of the Prosecution case and may
be urged before, and weighed by, the trial Court at the appropriate
stage. It does not, however, furnish an independent ground for
quashing the FIR and the chargesheet in the exercise of this Court’s
inherent jurisdiction. The fourth issue stands addressed as above.
40. Equally, regarding the submission of the Petitioner that the
mining operations were conducted under duly granted interim permits
and the DRP eventually accorded on 03.09.1998, and could not,
therefore, be characterised as “illegal”, and the stance of the
Prosecution, as borne out from the Chargesheet at Annexure-8, that no
surface right permission post 05.03.1966 and mining lease post
31.07.1989 has been granted to the lessee, this Court is of the view
that the aforesaid contentions also raise disputed questions bearing
Page 34 of 37
upon the scope and duration of the permits vis-Ã -vis the extent of
mining actually undertaken, especially since these are matters
requiring appreciation of documentary and oral evidence that fall
outside the limited compass of an enquiry under Section 482 Cr.P.C
which does not extend to a mini-trial or weighing of the sufficiency of
evidence. Lastly, the submission of the Petitioner that a petition for
quashing remains maintainable notwithstanding the filing of a
chargesheet, as held in Anand Kumar Mohatta v. State (NCT of
Delhi), reported in (2019) 11 SCC 706, is not in dispute and requires
no further elaboration. The present application is not being disposed
of on the ground of maintainability per se, but upon an assessment, on
the material presently available, of the specific grounds urged and
discussed hereinabove.
41. In conclusion, it is the considered view of this Court that the
contention of the Petitioner regarding the want of authorisation of the
DSP, Vigilance to lodge the complaint dated 17.11.2009 under
Section 22 of the MMDR Act, though expressly kept open by the
Hon’ble Supreme Court, does not, on the material presently available,
warrant quashing of the F.I.R or Chargesheet at the threshold,
particularly in view of the settled principle that a defect in the
initiation of investigation does not, by itself, vitiate cognizance validly
Page 35 of 37
taken or sanction duly obtained. Since the said contention involves
disputed questions of fact and law and has been left open by the
Hon’ble Supreme Court, it is more appropriately adjudicated by the
learned trial Court, where the Petitioner shall remain at liberty to urge
the same along with all consequential contentions and evidence in
support. Likewise, the remaining grounds relating to the Petitioner’s
role in the partnership firm, the legality of the mining operations, and
the effect of the penalty already discharged under the FCA also give
rise to triable issues that cannot be conclusively determined in
exercise of the inherent jurisdiction under Section 482 Cr.P.C and,
accordingly, are left open for consideration by the learned trial Court.
42. Having bestowed its anxious consideration on the rival
submissions, on a perusal of the documents annexed to the record and
on a conspectus of the foregoing analysis, this Court is unable to
discern any valid or compelling ground, much less the exceptional
parameters delineated in Bhajan Lal (supra), warranting the exercise
of its inherent jurisdiction under Section 482 Cr.P.C to quash the
impugned F.I.R. and the Chargesheet. The case at hand does not fall
within the “rarest of the rare” [paragraph 103 of Bhajan Lal (supra)]
so as to justify interference by this Court, at this stage. Accordingly,
the present CRLMC petition is dismissed, with liberty to the
Page 36 of 37
Petitioner to raise all the contentions noted hereinabove, including the
question of the competence of the officer lodging the complaint under
Section 22 of the MMDR Act, before the learned trial Court. It is
made clear that the observations made herein are for the limited
purpose of disposal of the present application and shall not be
construed as an expression of opinion on the merits of the prosecution
case, which shall be decided by the learned trial Court, uninfluenced
by any observation made hereinabove.
(A. K. Mohapatra)
Judge
Orissa High Court, Cuttack.
The 6th August, 2026/Debasis Aech, Secretary
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Designation: SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 06-Aug-2026 19:01:02
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