Karnataka High Court
Sri J M Vrushabhendraiah vs The State Of Karnataka on 4 March, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3876 OF 2022
BETWEEN:
SRI J.M.VRUSHABHENDRAIAH
S/O LATE MALIYAPPAIAH
AGED ABOUT 76 YEARS
R/O SRI.GURU KRUPA FARM
KUDLIGI ROAD, SANDUR,
BELLARY DISTRICT - 583 119.
... PETITIONER
(BY SRI HANUMANTHA REDDY Y.S., ADVOCATE)
AND:
THE STATE OF KARNATAKA
SPECIAL INVESTIGATION TEAM
KARNATAKA LOKAYUKTA
BENGALURU - 560 001
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA AT
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VENKATESH ARBATTI, SPL.PP FOR R-1;
R-2 TO R-6 ARE DELETED VIDE ORDER DATED 28.02.2024)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO (a) QUASH THE FINAL REPORT / CHARGE
SHEET, IN CRIME NO. 23/2015, ON THE FILE OF THE XXIII
ADDITIONAL CITY CIVIL SESSIONS JUDGE AND SPECIAL JUDGE,
FOR PREVENTION OF CORRUPTION ACT, AT BENGALURU, VIDE
ANNEXURE-B, TO THE PETITION; (b) CONSEQUENTLY, QUASH THE
ENTIRE PROCEEDINGS AGAINST THE PETITIONER (ACCUSED NO.
1), IN SPECIAL CC NO. 148/2022, WHICH IS PENDING ON THE FILE
OF THE XXIII ADDITIONAL CITY CIVIL SESSIONS JUDGE AND
SPECIAL JUDGE, VIDE ANNEXURE C, TO THE PETITION.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 is before this Court calling in
question proceedings in Special C.C.No.148 of 2022 arising out of
Crime No.23 of 2015 registered for offences punishable under
Sections 109, 379, 409, 468, 471 r/w 120B of the IPC and Sections
3
21, 23 r/w 4(1) and 4(1a) of the Mines and Minerals (Development
and Regulation) Act, 1957 ('the Act' for short).
2. Heard Sri Y. S. Hanumantha Reddy, learned counsel
appearing for the petitioner and Sri Venkatesh Arabatti, learned
Special Public Prosecutor appearing for the respondent.
3. Facts, in brief, germane are as follows: -
3.1. A mining lease comes to be granted to the petitioner/
accused No.1 in the year 1993 by the Government of Karnataka for
a land measuring 3.36 hectares/8.13 acres in Sy.No.19 of Ramghad
Village, Sandur Taluk, Bellary District to extract iron ore and red
oxide. The mining lease was for a period of 20 years. The process of
extraction of iron ore in terms of the lease was carried out by
M/s Srinivasa Minerals Trading Company who is accused No.3 and
its partner one Y.Srinivasa Rao/accused No.2. Between May 2009
and December 2010, it is the allegation that accused No.3 being
hand in glove with the petitioner/accused No.1 carried out illegal
extraction of iron ore without any permit as stipulated under the
Act.
4
3.2. During the course of investigation on the said allegation,
it was found that the Department of Mines and Geology had issued
permits in favour of accused No.1 favouring accused No.3 to extract
and transport iron ore to various locations. However, there were no
permits granted to extract iron ore or transport it to Krishnapatnam
Port. On 10-09-2009 accused No.1 submits a request to the
Controller General, Indian Bureau of Mines for temporary
discontinuance of the mines in the light of illegal mining activity
surrounding the petitioner/accused No.1 mining lease. Accordingly
Form-F which is the prescribed format was submitted for temporary
discontinuance of mines or mining lease.
3.3. On 07-09-2015, pursuant to the directions of the Apex
Court and constitution of the SIT in terms of the directions, a crime
in Crime No.23 of 2015 comes to be registered against several
persons including Mr. G.Janardhan Reddy and all others in the same
mining area. The SIT conducts investigation and files the charge
sheet against all indulging the petitioner/accused No.1. Filing of the
charge sheet is what has driven the petitioner to this Court in the
subject petition.
5
4. The learned counsel appearing for the petitioner would
vehemently contend that the allegations in the FIR and the charge
sheet is that the petitioner has entered into an agreement with M/s
Madhushree Enterprises and the petitioner's mine was virtually
taken over by other accused mining group which led to large scale
illegal extraction of iron ore transportation and trading of the said
produce. It is his submission that the petitioner once having
entered into an agreement and the land being taken over by M/s
Madhushree Enterprises, the petitioner cannot be hauled into the
proceedings. It is his submission that the allegations against the
petitioner regarding entering into agreement with M/s Madhushree
Enterprises has already been investigated by the CBI, when the CBI
summoned the petitioner and detailed statement was recorded. The
CBI chose not to proceed against the petitioner after recording the
statement. The SIT again, on the score that a new crime is
registered, repeated the same exercise by proceeding that the
petitioner has caused loss to the State exchequer. The learned
counsel submits that the petitioner is neither an exporter nor a
trader nor has extracted iron ore nor exported any ore. The
6
petitioner is deliberately dragged into the offence, since he did have
a mining lease at some point in time.
5.1. Per contra, the learned counsel appearing for the
respondent/SIT would vehemently refute the submissions to
contend that during the course of investigation it was found that
accused No.3 Company colluded with the petitioner/accused No.1
and extracted iron ore illegally without any permit. The iron ore
was extracted from the mines that was leased to the petitioner and
transported to an unauthorized stockyard by accused No.3. The
stockyard was Krishnapatnam Port, to which iron ore was
transported by the Apex Cargo Carriers on behalf of accused No.3.
Further about 78,772 MTs of iron ore was exported from the said
Port. Permits were granted to the petitioner in favour of accused
No.3 for the period from May 2009 to December, 2010 and mining
activity went on during this period, all of which are illegal. The
petitioner made a request for temporary closure of the mine on
10-09-2009 by then 66,264 MTs of iron ore was already illegal
extracted from the mine head and transported and exported to the
said Port.
7
5.2. The learned counsel submits that the investigation
conducted by the CBI was with regard to export of iron ore from
Belekere Port and does not pertain to the present case against the
petitioner. Likewise, the investigation conducted by the COD also
did not pertain to the present case. It is for the first time, the
petitioner comes into the picture and a crime is registered. The
question of delay would not arise, as the offence punishable is an
amalgam of Section 409 of the IPC as well, which would be
imprisonment up to 10 years.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. The issue is whether the proceedings against
the petitioner/accused No.1 deserve to be obliterated?
7. The afore-narrated facts and the link in the chain of events
are all a matter of record. A crime comes to be registered in Crime
No.23 of 2015. The allegation against the petitioner in the said
crime is as follows:
8
".... .... ....
Shri J.M.Vrushabendraiah was granted mining lease
for extracting iron ore and red oxide in Sy.No.19 of
Ramgad village, Sandur taluk, Bellary district on 24-08-
1993 for a period of 20 years vide M.L.No.2173 for an
extent of 3.36 ha. As per the findings of Forest
Department, the lease holder had encroached into
neighbouring forest area to an extent of 14.31 ha (5.94
ha for working pit outside the leased area and 8.37 for
waste dumps outside the leased area). In pursuance to
this, a case was filed by Forest Department in FOC
No.47/48/08-in Sandur village. Later on 29-03-2009 a
joint survey conducted by the official of Mines and
Geology Department, Forest Department and Revenue
Department confirming the encroachment to the extent of
14.31 ha by the lease holder. At this stage, the mining
group mentioned above conspired to gain control over
the mine.
In pursuance of the same, a Memorandum of
Understanding was executed on 18-06-2009 between
Shri J.M.Vrushabendraiah (first party) and M/s.
Madhushree Enterprises, Bellary, represented by its
partner Shri Madhukumar Verma (second party).
According to the MOU, the second party was to extend to
the first party its knowledge, expertise and technical
knowhow for carrying out the mining operations in a
more systematic and scientific manner. In turn, the first
party agreed to pay consideration to the second party by
way of 40% of the quantity of ore mined from the leased
area. The agreement appears suspicious as the scope of
work of the second party was vague and did not appear
to be commensurate with the quantum of consideration.
Further the second party i.e. M/s. Madhushree Enterprises was
registered as a partnership firm on 04-04-2009 and was only
two months old at the time of signing the MOU and hence did
not possess the required technical expertise and knowhow as
claimed in that document. From the records seized by Income
Tax Department, it is revealed M/s. Madhushree Enterprises was
the front company employed by the afore mentioned mining
group for controlling this mine and one Shri Srinivas was
9
deputed as raising contractor for undertaking extraction of iron
ore on its behalf.
In pursuance of the MOU, during the period from
May to December 2009, about 2,30,681 MT iron ore was
extracted from that mine (which was in excess of
1,50,000 MT annual limit fixed while granting
environmental clearance) and also by encroaching into
the neighbouring forest area. It is also revealed from the
seized documents that from the extracted iron ore,
dispatches were made to M/s. Sri Srinivasa Mineral
Trading Company (1,76,649 MT dispatched from May to
December 2009) and Shri Madhushree Enterprises
(25,011 MT dispatched from June to December 2009),
which were both middle traders controlled by the above
mentioned mining group. Totally during the period from May
to December 2009, 2,49,937 MT of iron ore was dispatched
from this mine. Therefore iron ore to the extent of 1,24,937 MT
was mined and transported from this mine without valid
permits. It is also revealed from the seized documents that
around 67,000 MT iron ore sold to M/s. Sri Srinivasa Mineral
Trading Company (SSMT) was transported to Krishnapatnam
port and during 2009 that company exported 80,000 MT from
that port. So this entire export appears to be made out of
illegally mined and transported iron ore. Further on examination
of the bank account of M/s. Madhushree Enterprises (A/c
No.202010112670 of ING Vysya Bank, Bellary), it is seen that
an amount of ₹80,00,000 was received on 11-09-2009 through
cheque No.731981 of SBI bank account of M/s.SSMT. Thus it is
clear that M/s. Madhushree Enterprises, the front firm,
belonging to the above mentioned mining group, controlled the
mine and received huge money by sale of illegally extracted iron
ore. On examination of the same bank account belonging to
M/s. Madhushree Enterprises, it is seen that huge financial
transactions existed with M/s.Devi Enterprises of Shri K.M.Ali
Khan, M/s. Manjunath Transport of Shri Karapudi Mahesh and
other firms that were directly or indirectly connected to the
mining group mentioned above.
Further, it is revealed that the controlling firm, M/s.
Madhushree Enterprises, employed two persons, Shri.
Ramakrishna Raju and Shri. Noori Moham, to manage and
control this mining lease. Salaries to these employees and
10
relevant professional tax were paid by M/s. Madhushree
Enterprises during the period from June 2009 to January 2010.
.... .... ....
Thus, the mining group comprising of Shri
G.Janardhan Reddy, Shri K.M.Ali Khan, Shri Madhu Kumar
Verma, Shri K.V.Nagaraju @ Swastik Nagaraj, Shri
Karapudi Mahesh, and others and other unknown public
servants conspired together and as a result of the said
conspiracy Shri J.M.Vrushabendraiah entered into illegal
agreement for transfer of iron ore with M/s. Madhushree
Enterprises belonging to Sri Madhukumar Verma as a
consideration for offering technical expertise. As a result
of this agreement, the mine belonging to Shri J.M.
Vrushabendraiah (ML No.2173) was virtually taken over
by the said mining group leading to large scale illegal
extraction, transportation and trading of illicit iron ore
causing huge loss to the State Government exchequer.
During the period from May 2009 to December 2009,
about 1,24,937 MT of iron ore was thus illegally
extracted, transported and traded by resorting to
encroachment, theft and misappropriation, thereby
cheating Government of Karnataka and causing it huge
financial loss to the extent of ` 31,23,42,500 (@₹2,500
per MT) resulting from loss of iron ore and corresponding
loss of royalty and other taxes."
It is the allegation that the mining group comprising of Mr. G.
Janardhana Reddy and several others and unknown public servants
conspiring together have entered into an illegal agreement with the
petitioner for extraction of iron ore with technical expertise of one
M/s Madhushree Enterprises offered as consideration in terms of
the said agreement. As a result of this agreement, the mine
11
belonging to the petitioner was virtually taken over by the mining
group leading to large scale extraction, transportation and trading
illegally. Therefore, the crime comes to be registered. The SIT
conducts investigation and files the charge sheet. Insofar as the
petitioner is concerned finding in the charge sheet is as follows:
".... .... ....
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12
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13
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ಹ ಾಸಲು ರವರ .ಾaೆ ನಂ 020411011001253 ೆ ಸಂ ಾಯ 5ಾFರುaಾOAೆ."
Petitioner is accused No.1. The agreement was entered into with
accused No.3. Therefore, the findings against accused Nos.1, 2 and
3 together are necessary to be considered:
"ಅ%ೆtW-1
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ಎಂಎL ನಂ 2173)
ಇವರು ಎಂ.ಎL.ನಂ. 2173 ಗ ಗುGO ೆ ಪ, ೇಶದ 5ಾ)ೕಕAಾJದುD, 2009-10%ೇ
ಾ)ನ)* ಆAೋz-3 ॥ H,ೕ H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3ಯ ಾಲು ಾರAಾದ ಆAೋz-2
H,ೕ ॥H,ೕ3NಾಸAಾ{ ರವAೊಂ ೆ ೇ ಒಳಸಂಚು 5ಾF ಎಂ.ಎL.ನಂ 2173 ಗ ಗುGO ೆ ಪ, ೇಶ
7ಾಗೂ ಅದ ೆm 7ೊಂ ೊಂFರುವ ಪ, ೇಶಗRಂದಲೂ, ಸಂಬಂಧಪಟC ಇIಾ.ೆXಂದ ;ಾವh ೇ
ಪರNಾ3 ೆಯನು0 ಪ9ೆಯ ೇ ಅನ:ಕೃತNಾJ ಗ ಾ ೆ 5ಾF ಕ ಣದ ಅ ರನು0 ಉaಾuದ%ೆ 5ಾF,
7ೋರ ೇಶ ೆm ರ}O 5ಾಡಲು ಅನುವh 5ಾF ೊ Cರುವh ಾJ ತ3.ಾ ಾಲದ)* ದೃಡಪ CರುತO ೆ. ಗ
5ಾ)ೕಕAಾದ ಆAೋz-1 H,ೕ Yೆ.ಎಂ ವೃಷ=ೇಂದ,ಯ ರವರು ಆAೋz-2 H,ೕ Nೈ.H,ೕ3NಾಸAಾ{
ರವAೊಂ ೆ ~ಾZೕIಾJ ಅಕ,ಮ Iಾಭ 5ಾF ೊಳTxವ ಉ ೆDೕಶ ಂದ ಒಳಸಂಚು ರೂz! ಅಕ,ಮNಾJ
66,264 ಎಂ. ಪ,5ಾಣದ ಕ ಣದ ಅ ರನು0 ಕಳxತನ ಂದ ಗ ಾ ೆ 5ಾF ಾ ಾಟ ಮತುO
5ಾAಾಟ 5ಾಡುವhದ ೆm ಅನುವh 5ಾF ೊಟುC ಅಕ,ಮ IಾಭಗR! ಸ ಾ ರ ೆm ೊ,ೕಹವ%ೆ0ಸJ
ಸ ಾ ರದ =ೊಕmಸ ೆm ರೂ 6,50,56,065/-ರಷುC ಆ• ಕ ನಷCವನು0ಂಟು 5ಾFರುವhದು
ಾ€aಾJರುತO ೆ.
ಆದD ಂದ ೕಲmಂಡ ಆAೋz-1
ಆAೋz H,ೕ Yೆ.ಎಂ
Yೆ ಎಂ.
ಎಂ Nೈಷ=ೇಂದ,ಯ ರವರ ರುದ" •ಾರGೕಯ ದಂಡ
ಸಂ‚aೆ ಕಲಂ 379, 409, gÉ/ 120 ಐz!,
ಐz!, Yೊaೆ ೆ ಕಲಂ 21, 23, 4(1) 4(1J) ಎಂಎಂFಆW ಆ C
-1957 ರ ಅFಯ)* H...ಾಹ ಅಪAಾಧ NೆಸJರುaಾOAೆಂದು ೋ@ಾAೋಪBೆ.
ೋ@ಾAೋಪBೆ
14
ಎ-2 H,ೕ Nೈ H,ೕ3Nಾಸ Aಾ{ ` Nೈ ಉ5ಾ ಮ7ೇಶ†ರAಾ{ ವಯಸು 45 ವಷ , Nಾಸ Nಾ‡
ನಂ 31, Nೇ ಾನಂದ ನಗರ ಾIೋ3,
ಾIೋ3 ಸಂಡೂರು ರ ೆO, 7ೊಸ ೇ]ೆ,
ೇ]ೆ ಾಲು ಾರರು || H,ೕ
H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3,
ಕಂಪ3 ೆCೕಷ` ರ ೆO, 7ೊಸ ೇ]ೆ.
ೇ]ೆ
ಇವರು ॥ H,ೕ H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3ಯ ಾಲು ಾರAಾJದುD
ಾರAಾJದುD, 2009-10%ೇ
%ೇ
ಾ)ನ)* ಎಂ.ಎL
ಎಂ ಎL.ನಂ
ಎL ನಂ.
ನಂ 2173 ಗ ಪ, ೇಶದ 5ಾ)ೕಕAಾJದD ಆAೋz-1
ಆAೋz H,ೕ
Yೆ.ಎಂ
Yೆ ಎಂ.ವೃಷ=ೇಂದ,ಯ
ಎಂ ವೃಷ=ೇಂದ,ಯ ರವರ Yೊaೆ ೇ ೊಂಡು,
ೊಂಡು ಅವರ ಎಂಎL ನಂ:2173
ನಂ ೆ ಸಂಬಂ:!ದ
ಗ ಗುGO ೆ ಪ, ೇಶ ಂದ 7ಾಗೂ ಅದ ೆm 7ೊಂ ೊಂFರುವ ಪ, ೇಶಗRಂದಲೂ ಸಂಬಂಧಪಟC
ಇIಾ.ೆXಂದ ;ಾವh ೇ ಪರNಾ3 ೆಯನು0 ಪ9ೆಯ
ಪ9ೆಯ ೇ ಅನ:ಕೃತNಾJ ಕಳxತನ ಂದ ಗ ಾ ೆ
5ಾF ಕ ಣದ ಅ ರನು0 ಉaಾuದ%ೆ 5ಾF,
5ಾF 7ೋರ ೇಶ ೆm ರ}O 5ಾFರುವhದು ತ3.ಾ ಾಲದ)*
ದೃಡಪ CರುತO ೆ.ೆ ಕಳವh 5ಾFರುವ ಅಕ,ಮ ಅ ರನು0 ಸಕ,ಮNಾJ ಖ ೕ !ರುವh ೆಂದು ಂ ಸಲು
ಇವರು ॥ y.ಆWಎಂ ! 5ಾ)ೕಕAಾದ H,ೕ. ಮ%ೋˆ ಕು5ಾW Yೈ`(ಎ-4), ॥ ಹನು5ಾ`
]ೆ,ೕಡ 5ಾ)ೕಕAಾದ H,ೕ ಚಂದ,~ೇಖರ AೆF‰(ಎ-5) 7ಾಗೂ ॥ 3ೕಲಕಂಠ ZನರL ನ
5ಾ)ೕಕAಾದ H,ೕ ‹ರುಕ ರಪu(ಎ-6) ರವAೊಂ ೆ ಸಂಚು ಹೂF ಸುಳTx ಇ%ಾ†AiÀiïìUÀಳನು0 ಪ9ೆದು
ಸ ಾ ರ ೆm 7ಾಗೂ ~ಾಸನಬದD ಾ,: ಾರ ೆm rೕಸ 5ಾFರುaಾOAೆ. ಗ 5ಾ)ೕಕAಾದ ಆAೋz-1
ಆAೋz H,ೕ
Yೆ.ಎಂ
Yೆ ಎಂ.ವೃಷ=ೇಂದ,ಯ
ಎಂ ವೃಷ=ೇಂದ,ಯ ರವAೊಂ ೆ ಅAೋz-2
ಅAೋz H,ೕ Nೈ H,ೕ3NಾಸAಾ{ರವರು
H,ೕ3NಾಸAಾ{ರವರು ~ಾZೕIಾJ
M¼À¸ÀAZÀÄ ªÀiÁr ಅಕ,ಮ Iಾಭ 5ಾF ೊಳTxವ ಉ ೆDೕಶ ಂದ 66,264 ಎಂ.
ಎಂ ಪ,5ಾಣದ ಅ ರನು0
ಗ ಾ ೆ 5ಾF ಅಕ,ಮNಾJ
ಅಕ,ಮNಾJ ಾ ಾಟ ಮತುO 5ಾAಾಟ 5ಾFರುವhದ ಂದ ತನ ೆ 7ಾಗೂ ಆAೋz-
ಆAೋz
H,ೕ Yೆ.ಎಂ
1H,ೕ Yೆ ಎಂ.ವೃಷ=ೇಂದ,ಯ
ಎಂ ವೃಷ=ೇಂದ,ಯ ರವರು ಅಕ,ಮ Iಾಭ 5ಾF ೊಂFದುD, ಇದ ಂದ ಸ ಾ ರದ =ೊಕmಸ ೆm
ರೂ 650,56,065/-ರಷುC
ರಷುC ಆ• ಕ ನಷCವನು0ಂಟು 5ಾFರುವhದು ಾ€aಾJರುತO ೆ.ೆ
ಆದD ಂದ ೕಲmಂಡ ಆAೋz-2 H,ೕ.Nೈ. H,ೕ3Nಾಸ Aಾ{ರವರ ರುದ" •ಾರGೕಯ ದಂಡ
ಸಂ‚aೆ ಕಲಂ 379, 468, 471 gÉ/ 120 ಐz!, Yೊaೆ ೆ ಕಲಂ 21, 23, 4(1) 4(1J) ಎಂಎಂFಆW
ಆ C -1957 ರ ಅFಯ)* H...ಾಹ ಅಪAಾಧ NೆಸJರುaಾOAೆಂದು ೋ@ಾAೋಪBೆ.
ಎ-3 || H,ೕ H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3 ( || ಎ ಎ ಎಂ !)
! ೆCೕಷ` ರ ೆO,
7ೊಸ ೇ]ೆ.
ೇ]ೆ ಬwಾx yIೆ*. (ಎ
ಎ-2 ಆAೋz H,ೕ NೈH,ೕ3Nಾಸ Aಾ{ ರವ ಂದ ಪ,G3:ಸಲuಡುತO ೆ)
ೆ
|| H,ೕ H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3ಯು ಓಂದು ಾಲು ಾ ೆ ಸಂ ೆV;ಾJದುD,
ಇದರ)* ಪ,ಕರಣದ ಆAೋz-2
ಆAೋz H,ೕ Nೈ H,ೕ3Nಾಸ Aಾ{ ರವರು ಾಲು ಾರAಾJದುD, ಈ ಸಂ ೆVಯ
ಾಲು ಾರರು ಆAೋz-1
ಆAೋz ॥ Yೆ.ಎಂ
Yೆ ಎಂ.ವೃಷ=ೇಂದ,ಯ
ಎಂ ವೃಷ=ೇಂದ,ಯ ರವರ Yೊaೆ ೇ ಒಳಸಂಚು 5ಾF ಅಕ,ಮ
Iಾಭ 5ಾF ೊಳTxವ ಉ ೆDೕಶ ಂದ 2009-10%ೇ
%ೇ ಾ)ನ)* ಗ ಗುGO ೆ ಸಂ.ೆ :2173 ೆ ಸಂಬಂ:!ದ
ಪ, ೇಶ ಂದ 7ಾಗೂ ಅದ ೆm 7ೊಂ ೊಂFರುವ ಪ, ೇಶಗRಂದಲೂ ಸಂಬಂಧಪಟC ಇIಾ.ೆXಂದ
15
;ಾವh ೇ ಪರNಾ3 ೆಯನು0 ಪ9ೆಯ ೇ ಅನ:ಕೃತNಾJ ಕಳxತನ ಂದ ಗ ಾ ೆ 5ಾF ಖ ೕ
5ಾFದ 7ಾ ೆ ಂ ಸಲು ಇ`Nಾ•
ಇ`Nಾ• ಗಳನು0 ಇತAೆ ಆAೋzಗwೆ? ಂ ೆ ೇ ಸೃlC! ೊಂಡು
66,264 ಎಂ.
ಎಂ ಕ ಣದ ಅ ರನು0 7ೊರ ೇಶ ೆm ರ}O 5ಾFರುವhದು ತ3.ಾ ಾಲದ)* ದೃಡಪ CರುತO ೆ.ೆ
ಇದ ಂದ ಈ ಸಂ ೆVಯ ಾಲು ಾರ ೆ ಅನ:ಕೃತ Iಾಭ ಉಂ]ಾJದುD, ಸ ಾ ರದ =ೊಕmಸ ೆm ರೂ
ರಷುC ಆ• ಕ ನಷCವನು0ಂಟು 5ಾFರುವhದು ಾ€aಾJರುತO ೆ.ೆ
6,50,56,065/-ರಷುC
ಆದD ಂದ ೕಲmಂಡ ಆAೋz-3 ॥ H,ೕ H,ೕ3Nಾಸ ZನರL ]ೆ,ೕFಂ^ ಕಂಪ3ಯು
•ಾರGೕಯ ದಂಡ ಸಂ‚aೆ ಕಲಂ 379, 468, 471 gÉ/ 120 ಐz!, Yೊaೆ ೆ ಕಲಂ 21, 23, 4(1)
4(1J) ಎಂಎಂFಆW ಆ C-1957 ರ ಅFಯ)* H...ಾಹ ಅಪAಾಧ NೆಸJರುತO ೆ ಎಂದು
ೋ@ಾAೋಪBೆ."
The concerned Court takes cognizance of the offence and issues
summons. The order of taking cognizance is as follows:
"Date: 03-02-2022 Cr.No.23/2015
ORDER
The Authorized Officer under section 22 of Mines and
Minerals (Development and Regulation) Act (in short the
M.M.D.R. Act) and the Dy. S.P., Special Investigation Team, (in
short SIT) Karnataka Lokayuktha, Bengaluru has filed the
complaint under Section 200 of the Cr.P.C. against the accused
No. 1 to 6 for the offences punishable under sections 21 read
with section 4(1) and 4(1-A) of M.M.D.R. Act, 1957.
2. The Dy. S.P./the Investigation Officer, Karnataka
Lokayuktha, SIT, Bengaluru has simultaneously filed the
separate charge sheet against the accused No.1 to 6 for the
offences punishable under section 109, 379, 409, 468, 471,
120-B of IPC and section 21 and 23 read with section 4(1) and
4(1-A) of M.M.D.R. Act, 1957.
3. As per the prosecution papers, Sri. Koushalendra
Kumar, the Superintendent of Police, Special Investigation
Team, Karnataka Lokayuktha Bengaluru suo-moto has
registered the case in Crime No.23/2015 on 07-09-2015 against
G. Janardana Reddy and 9 others for the offences punishable
16
under sections 379, 409, 420, 447, 468, 471 read with section
120-B of IPC and Section 13(1)(d) read with section 13(2) of
The Prevention of Corruption Act, 1988 and section 21 and 23
read with section 4(1) and 4(1-A) of MMDR Act, 1957.
4. As per the contents of the first information
statement it is alleged that the police have received
source information regarding large scale illegal mining,
transportation and trading of iron ore. As per the
complaint averments, and the charge sheet accused No.3
M/s Sri Srinivas Mineral Trading Company was
represented by accused No.2 at the time of registering
the FIR. Accused No.1 and 2 are the partners of accused
No.3 firm. They alleged have obtained mining license in
ML.No.2173 and during the year 2009-2010 they have
done illegal mining in collusion and criminal conspiracy
with other accused No.4 to 6, committed theft of iron ore
and exported 66,264 metric tones without obtaining the
valid permit from the department of Mines and Geology
and thereby caused loss of Rs.31,23,42,500/- royalty to
the State.
5. As per the charge sheet and complaint allegations
accused No.4 is the owner of Gururajendra Minerals and Trading
Company, in criminal conspiracy and abetment with the accused
No.2, he has created 2 false invoices by showing sold 50003
metric tones of iron ore to accused No.2 and assisted him to
transport and export iron ore and caused loss of
Rs.2,60,01,570/- to the State. Accused No.5 is shown as
proprietor of M/s Hanuman Traders and in 2010 he has created
false document by showing he has sold 6000 metric tones of
iron ore and thereby assisted accused No. 2 and 2 to transport
6,000/- MT iron ore without valid permit and caused loss to the
State to the extent of Rs.47,25,000/-.
6. Accused No.6 is shown as the owner of M/s Neelakanta
Minerals and he in criminal conspiracy and abetment with
accused No.1 to 3 alleged to have issued invoice No.8 for 10000
MT of iron ore and thereby assisted accused No. 1 to 3 to
transport and export iron ore without payment of the royalty of
Rs.78,75,000/- and thereby caused loss to the State exchequer.
17
7. As per the judgment of the Hon’ble High court of
Karnataka, Bengaluru dated 13-07-2016, in Crl. Pet.4333/16
c/w Crl Rev. Pet. 802/16 in Prakash vs The State held that this
court being the special court is empowered to take cognizance
of the offences investigated by the Special Investigation Team,
Karnataka lokayuktha, Bengaluru.
8. The investigating officer in the final report has stated
that the investigation is still in progress against the remaining
suspected accused and hence sought the leave of the court to
submit the additional charge sheet under Section 173(8) of
Cr.P.C. against them.
9. Perused the FIR, Complaint, Search mahazars,
statement of witnesses recorded during investigation and the
other documents submitted along with the complaint and the
charge sheet. These documents prima-facie disclose the
commission of the alleged offence by the accused No 1 to 6. At
this stage there are sufficient materials to proceed against the
accused and take cognizance of the offence against them.
Accordingly, I proceed to pass the following:
ORDER
Cognizance of the offence is taken against the
accused No. 1 to 6 for the offences punishable under
sections 109, 379, 409, 468, 471, read With section 120-
B of IPC on the basis of the final report filed under
Sec.173(2) of the Cr.P.CCognizance of the offence is taken against the
accused No. 1 to 6 for the offences punishable under
sections 21 and 23 read with section 4(1) and 4(1-A) of
M.M.D.R. Act, 1957on the basis of the complaint filed by
the Authorized Officer.
Register the case as Special C.C. in Reg. No. III.
Issue summons to accused No. 1 to 6, returnable
by 15-3-22Sd/- 03-2-2022
18(Lakshminarayana Bhat.K)
XXIII Additional City Civil and Sessions Judge
Special Judge, Bengaluru Urban District,
Bengaluru.”
(Emphasis added at each instance)
It is this that is challenged in the case at hand. Before entering
upon the grounds of challenge, I deem it appropriate to notice the
provision under which the petitioner and other accused are charged.
Section 379 is the primary offence. It deals with theft. It reads as
follows:
“379. Punishment for theft.–Whoever commits theft
shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with
both.”
For an offence to become punishable under Section 379 of the IPC,
the ingredients of Section 378 are to be present. Section 378 reads
as follows:
“378. Theft.–Whoever, intending to take
dishonestly any movable property out of the possession
of any person without that person’s consent, moves that
property in order to such taking, is said to commit theft.
Explanation 1.–A thing so long as it is attached to
the earth, not being movable property, is not the subject
of theft; but it becomes capable of being the subject of
theft as soon as it is severed from the earth.
19
Explanation 2.–A moving effected by the same act
which effects the severance may be a theft.
Explanation 3.–A person is said to cause a thing to move
by removing an obstacle which prevented it from moving or by
separating it from any other thing, as well as by actually moving
it.
Explanation 4.–A person, who by any means causes an
animal to move, is said to move that animal, and to move
everything which, in consequence of the motion so caused, is
moved by that animal.
Explanation 5.–The consent mentioned in the definition
may be express or implied, and may be given either by the
person in possession, or by any person having for that purpose
authority either express or implied.
Illustrations
(a) A cuts down a tree on Z’s ground, with the intention
of dishonestly taking the tree out of Z’s possession without Z’s
consent. Here, as soon as A has severed the tree in order to
such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus
induces Z’s dog to follow it. Here, if A’s intention be dishonestly
to take the dog out of Z’s possession without Z’s consent, A has
committed theft as soon as Z’s dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He
drives the bullock in a certain direction, in order that he may
dishonestly take the treasure. As soon as the bullock begins to
move, A has committed theft of the treasure.
(d) A being Z’s servant, and entrusted by Z with the care
of Z’s plate, dishonestly runs away with the plate, without Z’s
consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the
keeper of a warehouse, till Z shall return. A carries the plate to
a goldsmith and sells it. Here the plate was not in Z’s
possession. It could not therefore be taken out of Z’s
20possession, and A has not committed theft, though he may have
committed criminal breach of trust.
(f) A finds a ring belonging to Z on a table in the house
which Z occupies. Here the ring is in Z’s possession, and
if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the high road, not in the
possession of any person. A, by taking it, commits no theft,
though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to Z lying on a table in Z’s
house. Not venturing to misappropriate the ring immediately for
fear of search and detection, A hides the ring in a place where it
is highly improbable that it will ever be found by Z, with the
intention of taking the ring from the hiding place and selling it
when the loss is forgotten. Here A, at the time of first moving
the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be
regulated. Z carries it to his shop. A, not owing to the jeweller
any debt for which the jeweller might lawfully detain the watch
as a security, enters the shop openly, takes his watch by force
out of Z’s hand, and carries it away. Here A, though he may
have committed criminal trespass and assault, has not
committed theft, inasmuch as what he did was not done
dishonestly.
(j) If A owes money to Z for repairing the watch, and
if Z retains the watch lawfully as a security for the debt,
and A takes the watch out of Z’s possession, with the intention
of depriving Z of the property as a security for his debt, he
commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out
of Z’s possession without Z’s consent, not having paid what he
borrowed on the watch, he commits theft, though the watch is
his own property inasmuch as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z’s possession,
without Z’s consent, with the intention of keeping it until he
obtains money from Z as a reward for its restoration.
Here A takes dishonestly; A has therefore committed theft.
21
(m) A, being on friendly terms with Z, goes into Z’s
library in Z’s absence, and takes away a book without Z’s
express consent for the purpose merely of reading it, and with
the intention of returning it. Here, it is probable that A may
have conceived that he had Z’s implied consent to use Z’s book.
If this was A’s impression, A has not committed theft.
(n) A, asks charity from Z’s wife. She gives A money,
food and clothes, which A knows to belong to Z her husband.
Here it is probable that A may conceive that Z’s wife is
authorised to give away alms. If this was A’s impression, A has
not committed theft.
(o) A is the paramour of Z’s wife. She gives a valuable
property, which A knows to belong to her husband Z, and to be
such property as she has no authority from Z to give. If A takes
the property dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to
be A’s own property, takes that property out of B’s possession.
Here, as A does not take dishonestly, he does not commit
theft.”
The offences invoked under the Act and the offence of theft
punishable under Section 379 of the IPC have borne consideration
by the Apex Court in the case of STATE (NCT OF DELHI) v.
SANJAY1, wherein in an identical circumstance concerning the
offence of sand mining, the Apex Court has held as follows:
“…. …. ….
71. However, there may be a situation where a
person without any lease or licence or any authority
enters into river and extracts sand, gravel and other
1
(2014) 9 SCC 772
22
minerals and remove or transport those minerals in a
clandestine manner with an intent to remove dishonestly
those minerals from the possession of the State, is liable
to be punished for committing such offence under
Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR
Act and the offence defined under Section 378 IPC, it is manifest
that the ingredients constituting the offence are different. The
contravention of terms and conditions of mining lease or
doing mining activity in violation of Section 4 of the Act is
an offence punishable under Section 21 of the MMDR Act,
whereas dishonestly removing sand, gravel and other
minerals from the river, which is the property of the
State, out of the State’s possession without the consent,
constitute an offence of theft. Hence, merely because
initiation of proceeding for commission of an offence under the
MMDR Act on the basis of complaint cannot and shall not debar
the police from taking action against persons for committing
theft of sand and minerals in the manner mentioned above by
exercising power under the Code of Criminal Procedure and
submit a report before the Magistrate for taking cognizance
against such persons. In other words, in a case where there
is a theft of sand and gravel from the government land,
the police can register a case, investigate the same and
submit a final report under Section 173 CrPC before a
Magistrate having jurisdiction for the purpose of taking
cognizance as provided in Section 190(1)(d) of the Code
of Criminal Procedure.
73. After giving our thoughtful consideration in the
matter, in the light of the relevant provisions of the Act
vis-à-vis the Code of Criminal Procedure and the Penal
Code, we are of the definite opinion that the ingredients
constituting the offence under the MMDR Act and the
ingredients of dishonestly removing sand and gravel from
the riverbeds without consent, which is the property of
the State, is a distinct offence under IPC. Hence, for the
commission of offence under Section 378 IPC, on receipt
of the police report, the Magistrate having jurisdiction
can take cognizance of the said offence without awaiting
the receipt of complaint that may be filed by the
authorised officer for taking cognizance in respect of
23
violation of various provisions of the MMDR Act.
Consequently, the contrary view taken by the different High
Courts cannot be sustained in law and, therefore, overruled.
Consequently, these criminal appeals are disposed of with a
direction to the Magistrates concerned to proceed accordingly.”
Later, the Apex Court in KANWAR PAL SINGH v. STATE OF
UTTAR PRADESH2, has held as follows:
“…. …. ….
10. Elucidating on the provisions of Section 4 read with
Sections 21 and 22 of the MMDR Act, 1957 and the offence
under Section 379 IPC, it was observed in Sanjay [State (NCT of
Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] :
(SCC pp. 811-12, paras 69-72)
“69. Considering the principles of interpretation
and the wordings used in Section 22, in our considered
opinion, the provision is not a complete and absolute bar
for taking action by the police for illegal and dishonestly
committing theft of minerals including sand from the
riverbed. The Court shall take judicial notice of the fact
that over the years rivers in India have been affected by
the alarming rate of unrestricted sand mining which is
damaging the ecosystem of the rivers and safety of
bridges. It also weakens riverbeds, fish breeding and
destroys the natural habitat of many organisms. If these
illegal activities are not stopped by the State and the
police authorities of the State, it will cause serious
repercussions as mentioned hereinabove. It will not only
change the river hydrology but also will deplete the
groundwater levels.
70. There cannot be any dispute with regard to
restrictions imposed under the MMDR Act and remedy
provided therein. In any case, where there is a mining
activity by any person in contravention of the provisions
of Section 4 and other sections of the Act, the officer
empowered and authorised under the Act shall exercise
all the powers including making a complaint before the
2
(2020) 14 SCC 331
24jurisdictional Magistrate. It is also not in dispute that the
Magistrate shall in such cases take cognizance on the
basis of the complaint filed before it by a duly authorised
officer. In case of breach and violation of Section 4 and
other provisions of the Act, the police officer cannot
insist the Magistrate for taking cognizance under the Act
on the basis of the record submitted by the police
alleging contravention of the said Act. In other words,
the prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by
the officer is attracted only when such person is sought
to be prosecuted for contravention of Section 4 of the
Act and not for any act or omission which constitutes an
offence under the Penal Code.
71. However, there may be a situation where
a person without any lease or licence or any
authority enters into river and extracts sand,
gravel and other minerals and remove or transport
those minerals in a clandestine manner with an
intent to remove dishonestly those minerals from
the possession of the State, is liable to be
punished for committing such offence under
Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions of the
MMDR Act and the offence defined under Section 378
IPC, it is manifest that the ingredients constituting the
offence are different. The contravention of terms and
conditions of mining lease or doing mining activity
in violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act,
whereas dishonestly removing sand, gravel and
other minerals from the river, which is the
property of the State, out of the State’s possession
without the consent, constitute an offence of
theft. Hence, merely because initiation of proceeding for
commission of an offence under the MMDR Act on the
basis of complaint cannot and shall not debar the police
from taking action against persons for committing theft
of sand and minerals in the manner mentioned above by
exercising power under the Code of Criminal Procedure
and submit a report before the Magistrate for taking
cognizance against such persons. In other words, in a
case where there is a theft of sand and gravel
from the government land, the police can register
a case, investigate the same and submit a final
25report under Section 173 CrPC before a Magistrate
having jurisdiction for the purpose of taking
cognizance as provided in Section 190(1)(d)
CrPC.”
(emphasis supplied)
… … …
12. We would also reject the contention raised by
the appellant in the written submissions that the alleged
theft of sand is not punishable under Section 379 read
with Section 378 IPC as sand is an immovable property
as per Section 3(26) of the General Clauses Act. In the
present case, sand had been excavated and was
thereupon no longer an immovable property. The sand on
being excavated would lose its attachment to the earth,
ergo, it is a movable property or goods capable of being
stolen. (See Explanation 1 to Section 378 IPC
and Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC
772: (2014) 5 SCC (Cri) 437] as quoted above.)”.
If the law laid down by the Apex Court in the afore-quoted
judgments is pitted against the facts obtaining in the case at hand,
what would unmistakably emerge is, extracting iron ore beyond the
permissible limit and without the consent of the state would
become a movable property capable of being stolen in terms of the
first and second explanation to Section 378 of the IPC.
8. The other offence is under Section 409 of the IPC, criminal
breach of trust by public servant, banker, merchant or agent. It
reads as follows:
26
“409. Criminal breach of trust by public servant, or
by banker, merchant or agent.–Whoever, being in any
manner entrusted with property, or with any dominion over
property in his capacity of a public servant or in the way of his
business as a banker, merchant, factor, broker, attorney or
agent, commits criminal breach of trust in respect of that
property, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.”
Interpretation of Section 409 of the IPC also need not detain this
Court for long or delve deep into the matter. The Apex Court in
R. VENKATKRISHNAN v. CENTRAL BUREAU OF
INVESTIGATION3 has held as follows:
".... .... ....
Criminal breach of trust
140. The next charge we have to deal with is one
arising under Section 409 IPC. For the offence of criminal
breach of trust by a public servant the punishment is
provided under Section 409 IPC.
141. We must also in this respect have regard to the
provision of Section 405 which defines criminal breach of trust:
“405. Criminal breach of trust.–Whoever, being
in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust
is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of
such trust, or wilfully suffers any other person so to do,
commits ‘criminal breach of trust’.”
3
(2009) 11 SCC 737
27
142. Punishment for criminal breach of trust is provided
in Section 406. Punishment for an aggravated form of criminal
breach of trust is provided in Sections 407 to 409.
143. The terms of Section 405 are very wide. They
apply to one who is in any manner entrusted with
property or dominion over property. The section does not
require that the trust should be in furtherance of any
lawful object. It merely provides, inter alia, that if such a
person dishonestly misappropriates or converts to his
own use the property entrusted to him, he commits
criminal breach of trust. This section requires:
(1) Entrusting any person with property or
with dominion over property.
(2) That person entrusted (a) dishonestly
misappropriates or converts to his own use that
property; or (b) dishonestly uses or disposes of that
property or wilfully suffers any other person so to
do in violation:
(i) of any direction of law prescribing the mode
in which such trust is to be discharged, or
(ii) of any legal contract made touching the
discharge of such trust.
144. In Onkar Nath Mishra v. State (NCT of
Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] this
Court noted that in the commission of the offence of
criminal breach of trust, two distinct parts are involved.
The first consists of the creation of an obligation in
relation to the property over which dominion or control is
acquired by the accused. The second is a
misappropriation or dealing with the property dishonestly
and contrary to the terms of the obligation created.
145. In Jaikrishnadas Manohardas Desai v. State of
Bombay [AIR 1960 SC 889] , this Court observed: (AIR p. 891,
para 4)
28
“4. … to establish a charge of criminal
breach of trust, the prosecution is not obliged
to prove the precise mode of conversion,
misappropriation or misapplication by the
accused of the property entrusted to him or
over which he has dominion. The principal
ingredient of the offence being dishonest
misappropriation or conversion which may
not ordinarily be a matter of direct proof,
entrustment of property and failure in breach
of an obligation to account for the property
entrusted, if proved, may in the light of other
circumstances, justifiably lead to an inference
of dishonest misappropriation or conversion.
Conviction of a person for the offence of criminal
breach of trust may not, in all cases, be founded
merely on his failure to account for the property
entrusted to him, or over which he has dominion,
even when a duty to account is imposed upon him,
but where he is unable to account or renders an
explanation for his failure to account which is
untrue, an inference of misappropriation with
dishonest intent may readily be made.”
146. However, Sections 407 to 409 make special
provisions for various cases in which property is
entrusted to the enumerated categories of persons who
commit the offence. Criminal breach of trust by a public
servant is dealt with under Section 409:
“409. Criminal breach of trust by public
servant, or by banker, merchant or agent.–
Whoever, being in any manner entrusted with
property or with any dominion over property in his
capacity of a public servant or in the way of his
business as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach of trust
in respect of that property, shall be punished with
imprisonment for life, or with imprisonment of
either description for a term which may extend to
ten years, and shall also be liable to fine.”
29
This section classes together public servants, bankers,
merchants, factors, brokers, attorneys and agents. The
duties of such persons are of a highly confidential
character, involving great powers of control, over the
property entrusted to them and a breach of trust by such
persons may often induce serious public and private
calamity. High morality is expected of these persons.
They are to discharge their duties honestly. The following
are the essential ingredients of the offence under this section:
(1) The accused must be a public servant;
(2) He must have been entrusted, in such capacity with
the property;
(3) He must have committed breach of trust in respect
of such property.
147. In Raghunath Anant Govilkar v. State of
Maharashtra [(2008) 11 SCC 289 : (2009) 1 SCC (Cri) 130 :
(2008) 2 Scale 303] the Court noted that Section 406 which
provides the punishment for criminal breach of trust simpliciter
and Section 409 IPC are cognate offences in which the common
component is criminal breach of trust. When an offence
punishable under Section 406 is committed by a public servant
(or holding any one other of the positions listed in the section)
the offence would escalate to Section 409 of the Penal Code.
In Supdt. and Remembrancer of Legal Affairs v. S.K.
Roy [(1974) 4 SCC 230: 1974 SCC (Cri) 399] , this Court held:
(SCC p. 235, para 12)
“12. To constitute an offence under
Section 409 IPC, it is not required that
misappropriation must necessarily take place
after the creation of a legally correct
entrustment or dominion over property. The
entrustment may arise in ‘any manner
whatsoever’. That manner may or may not
involve fraudulent conduct of the accused.
Section 409 IPC, covers dishonest misappropriation
in both types of cases; that is to say, those where
the receipt of property is itself fraudulent or
improper and those where the public servant
30
misappropriates what may have been quite
properly and innocently received. All that is
required is what may be described as
‘entrustment’ or acquisition of dominion over
property in the capacity of a public servant
who, as a result of it, becomes charged with a
duty to act in a particular way, or, at least
honestly.”
148. In ChelloorMankkal Narayan Ittiravi
Nambudiri v. State of Travancore-Cochin [(1952) 2 SCC 392 :
AIR 1953 SC 478] , this Court held: (AIR p. 484, para 21)
“21. … to constitute an offence of
criminal breach of trust it is essential that the
prosecution must prove first of all that the
accused was entrusted with some property or
with any dominion or power over it. It has to
be established further that in respect of the
property so entrusted, there was dishonest
misappropriation or dishonest conversion or
dishonest use or disposal in violation of a
direction of law or legal contract, by the
accused himself or by someone else which he
willingly suffered to do.”
149. In Ram Narayan Popli [(2003) 3 SCC 641 : 2003
SCC (Cri) 869] this Court stated the law, thus: (SCC p. 786,
para 361)
“361. To constitute an offence of criminal
breach of trust, there must be an entrustment,
there must be misappropriation or conversion to
one’s own use, or use in violation of a legal
direction or of any legal contract; and the
misappropriation or conversion or disposal must
be with a dishonest intention. When a person
allows others to misappropriate the money
entrusted to him, that amounts to a criminal
breach of trust as defined by Section 405. The
section is relatable to property in a positive part
and a negative part. The positive part deals with
criminal misappropriation or conversion of the
31
property and the negative part consists of
dishonestly using or disposing of the property in
violation of any direction and of law or any
contract touching the discharge of trust.”
Whether this would become applicable to the petitioner is necessary
to be considered.
9. The petitioner did have a mining lease. It is his case that
he has surrendered the lease for a temporary period. It is the case
of the prosecution that by then illegal ore had been extracted by
the agreement holder or M/s Madhushree Enterprises and accused
No.3, which took over the mines. It is, therefore, Section 120B of
the IPC has come in. Section 120B of the IPC is interpreted by the
Apex Court in GURDEEP SINGH v. STATE OF PUNJAB4 as under:
“…. …. ….
17. As regards the second limb of the appellant’s
contention, it is well established that the offence of criminal
conspiracy under section 120B IPC, by its very nature, is seldom
capable of being proved by direct evidence. Being a
clandestine agreement between two or more persons to
commit an unlawful act, or a lawful act by unlawful
means, conspiracy is typically established through
circumstantial evidence, patterns of conduct, and the
cumulative interferences drawn from the interactions of
the accused persons.
4
2025 SCC OnLine SC 1669
32
17.1. In State (NCT of Delhi) v. Navjot Sandhu6, this
Court underscored that conspiracy is inherently covert and
rarely leaves behind direct traces. Its existence can be
inferred from the surrounding facts and circumstances,
the conduct of the accused before, during, and after the
occurrence, and the manner in which the crime unfolds.
It was further held that every conspirator need not
commit an overt act to be held liable, the agreement itself
constitutes the offence. What is required is a concert of
purpose and unity of design. It was also emphasized that
conspiracy is an independent offence and may be
punishable even if the substantive offence contemplated
by the conspirators does not ultimately materialize. The
following paragraphs are pertinent in this regard:
“97. Mostly, conspiracies are proved by
circumstantial evidence, as the conspiracy is
seldom an open affair. Usually, both the existence
of the conspiracy and its objects have to be
inferred from the circumstances and the conduct
of the accused (per Wadhwa, J. in Nalini case, [(1999)
5 SCC 253 : 1999 SCC (Cri) 691] at p. 516). The well-
known rule governing circumstantial evidence is that
each and every incriminating circumstance must be
clearly established by reliable evidence and “the
circumstances so proved must form a chain of events
from which the only irresistible conclusion about the
guilt of the accused can be safely drawn and no other
hypothesis against the guilt is possible” (Tanviben
Pankajkumar case [Tanviben Pankajkumar
Divetia v. State of Gujarat,, (1997) 7 SCC 156 : 1997
SCC (Cri) 1004], SCC p. 185, para 45). G.N. Ray, J.
in Tanviben Pankajkumar [Tanviben Pankajkumar
Divetia v. State of Gujarat,, (1997) 7 SCC 156 : 1997
SCC (Cri) 1004] observed that this Court should not
allow suspicion to take the place of legal proof.”
17.2. Similarly, in Ajay Aggarwal v. Union of India7,
it was reiterated that conspiracy is a continuing offence,
which begins with the formation of the unlawful
agreement and continues until the common objective is
either achieved or abandoned. The court clarified that the
crime is complete with the agreement itself and that no
overt act is necessary to sustain a conviction under
33
Section 120B IPC. The relevant paragraphs of the said
decision are usefully extracted below:
“10. In Mohammad Usman Mohammad Hussain
Maniyar v. State of Maharashtra, [(1981) 2 SCC
443 : 1981 SCC (Cri) 477 : (1981) 3 SCR 68] it was
held that for an offence under Section 120-BIPC, the
prosecution need not necessarily prove that the
conspirators expressly agreed to do or cause to be done
the illegal act, the agreement may be proved by
necessary implication. In Noor Mohammad Mohd.
Yusuf Momin v. State of Maharashtra, [(1970) 1
SCC 696 : 1970 SCC (Cri) 274 : (1971) 1 SCR 119]
it was held that Section 120-BIPC makes the
criminal conspiracy as a substantive offence which
offence postulates an agreement between two or
more persons to do or cause to be done an act by
illegal means. If the offence itself is to commit an
offence, no further steps are needed to be proved
to carry the agreement into effect. In R.K.
Dalmia v. Delhi Administration, [(1963) 1 SCR 253
: AIR 1962 SC 1821 : (1962) 2 Cri LJ 805] it was
further held that it is not necessary that each
member of a conspiracy must know all the details
of the conspiracy. In Shivanarayan Laxminarayan
Joshi v. State of Maharashtra [(1980) 2 SCC
465 : 1980 SCC (Cri) 493] this Court emphasized
that a conspiracy is always hatched in secrecy and
it is impossible to adduce direct evidence of the
same. The offence can be only proved largely from
the inferences drawn from acts or illegal omission
committed by the conspirators in pursuance of a
common design.”
17.3. In Sudhir Shantilal Mehta v. CBI8, the Court again
affirmed that due to the covert nature of conspiracies, courts
must necessarily look to the overall circumstances, the acts of
the accused, and the coherence of their conduct to infer a
conspiracy. The presence of a common intention and the
coordinated acts of multiple persons can give rise to a legitimate
inference of an unlawful agreement. The relevant paragraphs
read as under:
“Criminal conspiracy
34
113. Criminal conspiracy is an independent
offence. It is punishable independent of other offences;
its ingredients being:
(i) an agreement between two or more persons.
(ii) the agreement must relate to doing or causing to
be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is
done by illegal means.
It is now, however, well settled that a
conspiracy ordinarily is hatched in secrecy. The
court for the purpose of arriving at a finding as to
whether the said offence has been committed or
not may take into consideration the circumstantial
evidence. While however doing so, it must bear in mind
that meeting of the minds is essential; mere knowledge
or discussion would not be. As the question has been
dealt with in some detail in Criminal Appeal No. 76 of
2004 (R. Venkatakrishnan v. CBI, [(2009) 11 SCC
737]), it is not necessary for us to dilate thereupon any
further.”
….
116. In K.R. Purushothaman v. State of
Kerala, [(2005) 12 SCC 631 : (2006) 1 SCC (Cri) 686]
this Court held: (SCC pp. 636-38, paras 11 & 13)
“11. Section 120-A IPC defines ‘criminal
conspiracy’. According to this section when two or more
persons agree to do, or cause to be done (i) an illegal
act, or (ii) an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy.
In Major E.G. Barsay v. State of Bombay, [AIR 1961 SC
1762 : (1962) 2 SCR 195] Subba Rao, J., speaking for
the Court has said: (AIR p. 1778, para 31)
’31. … The gist of the offence is an agreement to
break the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal act
agreed to be done has not been done. So too, it is not
an ingredient of the offence that all the parties should
agree to do a single illegal act. It may comprise the
commission of a number of acts.’
35
***
13. To constitute a conspiracy, meeting of minds
of two or more persons for doing an illegal act or an act
by illegal means is the first and primary condition and it
is not necessary that all the conspirators must know
each and every detail of the conspiracy. Neither it is
necessary that every one of the conspirators takes
active part in the commission of each and every
conspiratorial acts. The agreement amongst the
conspirators can be inferred by necessary implication. In
most of the cases, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is seldom an
open affair. The existence of conspiracy and its objects
are usually deduced from the circumstances of the case
and the conduct of the accused involved in the
conspiracy. While appreciating the evidence of the
conspiracy, it is incumbent on the court to keep in mind
the well-known rule governing circumstantial evidence
viz. each and every incriminating circumstance must be
clearly established by reliable evidence and the
circumstances proved must form a chain of events from
which the only irresistible conclusion about the guilt of
the accused can be safely drawn, and no other
hypothesis against the guilt is possible. The criminal
conspiracy is an independent offence in the Penal Code.
The unlawful agreement is sine qua non for constituting
offence under the Penal Code and not an
accomplishment. Conspiracy consists of the scheme or
adjustment between two or more persons which may be
express or implied or partly express and partly implied.
Mere knowledge, even discussion, of the plan would not
per se constitute conspiracy. The offence of conspiracy
shall continue till the termination of agreement.”
(See also P.K. Narayanan v. State of
Kerala, [(1995) 1 SCC 142 : 1995 SCC (Cri) 215].)”
Thus, it is crystal clear that the offence of
criminal conspiracy need not be proved by direct
evidence, nor is it necessary that all conspirators
participate in every stage of the commission of the
offence. What is material is the existence of a prior
agreement – express or implied – to commit an unlawful
act, or a lawful act by unlawful means. Once such
agreement is established, even by way of inference from
36circumstantial evidence, the legal consequences under
Section 120B IPC follow.
17.4. In the present case, the prosecution has
convincingly established the existence of a prior concert of
action between the appellant and the assailants. The use of a
private vehicle associated with the appellant, the involvement of
unidentified persons, the stop at a scheduled location under a
false pretext, and the appellant’s conspicuous inaction during
the violent assault – despite being in a position of official
authority – all form a continuous chain of incriminating
circumstances that point toward his complicity in the conspiracy.
His deliberate inaction, lack of any injuries, and subsequent
disappearance from the scene further reinforce the inference of
his active role. The appellant’s conduct was not peripheral but
integral to the execution of the plan to facilitate the escape of
the undertrial Kuldeep Singh. His behaviour before, during, and
after the incident establishes his culpability under
section 120B IPC. Accordingly, his conviction for the substantive
offences with the aid of Section 120B IPC is legally sustainable.”
The Apex Court holds that for the offence of criminal conspiracy
there need not be direct evidence, nor is it necessary that all
conspirators participate at every stage of commission of offence.
What is material is existence of prior agreement whether express or
implied to commit the act.
10. Whether the petitioner had surrendered the lease and by
then the ore had been extracted, are all matters of evidence in
which the petitioner will have to come out clean. The prime
projection of the petitioner is, delay has vitiated the proceedings as
37
the crime is registered six years after the incident. If there is
sufficient explanation for delay, that would not vitiate registration of
crime is the law laid down by the Apex Court in SEKARAN v.
STATE OF TAMIL NADU5 wherein it is held as follows:
“…. …. ….
14. We start with the FIR, to which exception has been
taken by the appellant urging that there has been no
satisfactory explanation for its belated registration. It is trite
that merely because there is some delay in lodging an
FIR, the same by itself and without anything more ought
not to weigh in the mind of the courts in all cases as fatal
for the prosecution. A realistic and pragmatic approach
has to be adopted, keeping in mind the peculiarities of
each particular case, to assess whether the unexplained
delay in lodging the FIR is an afterthought to give a
coloured version of the incident, which is sufficient to
corrode the credibility of the prosecution version.
15. In cases where delay occurs, it has to be tested
on the anvil of other attending circumstances. If on an
overall consideration of all relevant circumstances it
appears to the court that the delay in lodging the FIR has
been explained, mere delay cannot be sufficient to
disbelieve the prosecution case; however, if the delay is
not satisfactorily explained and it appears to the court
that cause for the delay had been necessitated to frame
anyone as an accused, there is no reason as to why the
delay should not be considered as fatal forming part of
several factors to vitiate the conviction.”
(Emphasis supplied at each instance)
5
(2024) 2 SCC 176
38
In the light of the aforesaid judgments of the Apex Court and the
facts in the case at hand being shrouded with seriously disputed
questions of fact, trial in such a case is a must. It is for the
petitioner to come out clean.
11. In the result, the petition is rejected. Interim order of
any kind operating, shall stand dissolved.
It is made clear that the observations made in the course of
the order are only for the purpose of consideration of the case of
the petitioner under Section 482 of the Cr.P.C., and the same shall
not bind or influence the proceedings against any other accused
pending before any fora.
SD/-
(M.NAGAPRASANNA)
JUDGE
Bkp/CT:MJ