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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF FEBRUARY, 2021

BEFORE

THE HON’BLE MR.JUSTICE K.SOMASHEKAR

CRIMINAL PETITION NO. 9421 OF 2017 BETWEEN

Samaja Parivarthana Samudhaya Asha Deep

Jayanagar Cross, Sapthapur

Dharwad – 580001

Rep. by its Honorary Executive Director Sri. S.R. Hiremath.

... Petitioner

(By Sri. K. B.Monesh Kumar, Advocate for

Sri N. I. Gnanesh - Advocate)

AND

1. Central Bureau of Investigation

Anti Corruption Branch

No.36, Ballari Road

Bengaluru – 560 032.

2. Smt. G Lakshmi Aruna

W/o Sri Gali Janardhana Reddy

Major by age

R/at Ganesh Nagar, Kuratti

Siraguppa Road, Bellari.

... Respondents

(By Sri. P.Prasanna Kumar, Spl. PP for R-1; Sri. Sandesh J Chouta – Sr. Counsel for Sri. R.P. Chandrashekara – Advocate for R-2)

R

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This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, praying to set aside the order dated

08.10.2015 passed by the XLVI Addl. City Civil and Sessions

Judge and Special Judge for CBI cases, Bangalore in

Spl.C.C.No.116/2012 discharging the Accused No.2 from the

ambit of trial and further be pleased to direct the Accused No.2

to face the trial for the offences punishable under Section 120B,

420, 379, 409, 447, 468, 471, 477A of IPC and Sections 13(2)

r/w 13(1)(c) and (d) of the Prevention of Corruption Act.

This Criminal Petition coming on for Dictating Orders, this

day, the court made the following:

O R D E R

The petitioner Shri S.R. Hiremath being the Honorary

Executive Director of Samaja Parivarthana Samudhaya Asha

Deep is the original petitioner before the Hon’ble Supreme Court

of India in W.P (Civil) No.562/2009. A person aggrieved by the

action or inaction on the part of the CBI, would naturally be

free to ventilate their grievances in an appropriate proceeding

before the appropriate forum. Accordingly, the present

petitioner has approached this court by filing a petition under

Section 482 Cr.P.C. seeking to set aside the order passed by the

XLVI Addl. City Civil & Sessions Judge and Special Judge for

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CBI Cases at Bangalore City (CCH-47) in Spl.C.C.No.116/2012

dated 08.10.2015 discharging Accused No.2 / Smt. G. Lakshmi

Aruna from the trial and further seeking to direct Accused No.2

to face trial for offences punishable under Sections 120(B), 420,

379, 409, 447, 468, 471, 477-A of IPC and Section 13(2) read

with Section 13(1)(c) and (d) of the PC Act, 1988.

2. The factual matrix of the case is,

R.C.No.18(A)/2011/CBI/ACB/BLR came to be registered by the

first respondent / CBI, Anti Corruption Bureau, Bangalore, in

pursuance of the orders passed by the Hon’ble Apex Court of

India in Special Leave to Appeal (Civil) No.7366-7367/2010 and

connected matters, in which the first respondent / CBI- ACB

was directed to investigate the illegalities committed by various

persons in the matter relating to Mining lease No.2434 of M/s.

Associated Mining Company (‘M/s. AMC’ for short), to which the

second respondent / Smt. G. Lakshmi Aruna, W/o. Gali

Janardhan Reddy happens to be the partner along with her

husband G. Janardhan Reddy who is arraigned as Accused

No.1 in the charge-sheeted case.

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The second respondent herein is arraigned as Accused

No.2 in the charge-sheeted case and so also in the case in

Spl.CC.No.116/2012 which is pending for trial against the

accused. During investigation, oral as well as documentary

evidence have been secured by the Investigating Agency in

support of the allegations mentioned in the substance of the

charge-sheet laid by the I.O. and also recorded the statement of

witnesses who have been cited as CW-1 to

CW-310. They are the witnesses who have been cited in the

charge-sheet in R.C.No.18(A)/2011 registered by the first

respondent / CBI-ACB, Bangalore.

3. The nutshell of the prosecution case reveals that the

petitioner being aggrieved by the rampant illegal mining

operations in the State of Karnataka, especially in the

encroached forest areas, had preferred a writ petition W.P.(Civil)

No.562/2009 under Article 32 of the Constitution of India

before the Hon’ble Supreme Court of India seeking to direct the

first respondent / CBI to investigate and to file a report relating

to the illegal mining operations. Based upon the direction

issued by the Hon’ble Supreme Court of India in the aforesaid

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writ petition, the respondent / CBI-ACB has investigated the

case relating to Mining lease No.2434 standing in the name of

M/s. AMC to which the second respondent Smt. G. Lakshmi

Aruna happens to be a partner along with her husband Shri G.

Janardhan Reddy who is arraigned as the first accused.

After the charge sheet was laid and the matter was set

down for framing of charge, the second respondent who is

arraigned as Accused No.2 had filed an application under

Section 239 of the Cr.P.C., i.e., I.A.No.21 seeking to discharge

her from the offences which were lugged against the accused.

Accused No.2 who is arraigned as Respondent No.2 was the

partner of the firm and in her capacity, had signed cheques

which were approved by Accused No.1 / G. Janardhan Reddy.

She was thus managing the affairs of the said company. That

Accused No.2 had also actively participated in the affairs of the

company along with Accused No.1 Janardhan Reddy, despite of

which Accused No.2 has been discharged at the stage of

framing of charges, by the Trial Court. Therefore, this petition

is filed seeking for intervention of the impugned order passed by

the Trial Court in Spl.CC No.116/2012 dated 8.10.2015 in

respect of application filed by Respondent No.2 / Accused No.2.

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4. Heard the learned counsel Shri Monesh Kumar for the

petitioner and the learned Spl. PP Shri P. Prasanna Kumar for

Respondent No.1 / CBI-ACB and so also learned Senior counsel

Shri Sandesh J. Chouta appearing for the learned counsel Shri

R.P. Chandrashekara for Respondent No.2, in this matter, at

length.

5. Learned counsel for the petitioner has taken me

through the impugned order passed by the Court of the XLVI

Addl. City Civil & Sessions Judge and Special Judge for CBI

Cases at Bangalore City (CCH-47) in Spl.C.C.No.116/2012

dated 08.10.2015 discharging Accused No.2 from the offences

reflected in the charge-sheet, which is stated above. But the

facts and circumstances of the case which are found in the

charge-sheet laid by the I.O. reveals that there are sufficient

materials against Respondent No.2 / accused. Despite of

which, the Special Judge in Spl.CC No.116/2012 allowed

I.A.No.21 and discharged Accused No.2 from the alleged

offences. The Trial Court while discharging Accused No.2 has

relied upon the witness statements recorded by the I.O. during

the course of investigation and has come to the conclusion that

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none of the witnesses whose statements have been recorded

have implicated Accused No.2 in any manner and has thus

discharged Accused No.2. However, the charge-sheet laid by

the I.O. against the accused before the Committal court reveals

that there are sufficient evidence to lay charge-sheet against

Accused No.2 Smt. G. Lakshmi Aruna.

The I.O. has recorded the statement of several witnesses

as contemplated under Section 161 of the Cr.P.C. Though there

are sufficient materials available on record against the

involvement of Accused No.2 and despite the fraudulent

transactions and affairs of the AMC Mining Company, the Trial

Court had erroneously passed an order by allowing

I.A.No.21/2015, thus discharging her from the alleged offences.

6. The second limb of the argument that has been

advanced by the learned counsel is that the Trial Court has

merely relied upon certain stray statements of certain witnesses

cited in the charge-sheet stating that policy matters were

decided by Accused No.1 G. Janardhana Reddy, payments were

decided by Accused No.1, vouchers and verifications,

participation and discussions in the meeting were also held at

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the instance of Accused No.1. Further, after all approval from

Accused No.1, this Accused No.2 G. Lakshmi Aruna would

subscribe her signature in the cheque. It is very much clear

that there was a role made by this Accused No.2 in respect of

the process of managing the affairs of the said M/s. AMC and

she had as much role and responsibility as that of Accused

No.1 / Gali Janardhan Reddy and by no stretch of imagination,

it could be stated that there were no incriminating materials

against Accused No.2 to try the offences lugged against the

accused. But accused No.2 has been discharged from the

charges at the stage of framing of charge, which is bad in law.

Therefore, learned counsel contends that the impugned order

passed by the Trial Court in Spl. CC.No.116/2012 dated

8.10.2015 deserves to be quashed/set-aside.

7. Lastly, learned counsel submits that the Trial Court

has lost sight of the fact relating to the role made by this

accused and so also certain material documents which were

collected by the I.O. during the course of investigation. During

investigation, the Investigating Agency have collected enormous

documents which unerringly suggest that Accused No.2 was

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involved in export of iron ore without having any valid permit,

committing theft of iron ore from the forest area, that too

reserved area. This accused also had participated with Accused

No.1 / Gali Janardhan Reddy and is also having criminal

conspiracy with the first accused to commit the alleged

offences. Therefore, the materials collected by the I.O. in

respect of the offences under the IPC such as 120B, Section 379

and 409, are sufficient to proceed against Accused No.2 also in

framing of a charge and so also facing of trial with other

accused for offences under Section 471 of the IPC. Further, all

documents pertaining to books of accounts of the company to

which accused no.2 was the partner were falsified willfully and

deliberately to portray the same as genuine documents to the

concerned documents. Hence, the documents produced and

also secured by the I.O. during the course of investigation were

sufficient to prove the ingredients of the alleged offences in

order to lay the charge-sheet against the accused. The Accused

No.2 is alleged to have committed offences under Section 477-A

of the IPC and so also offences under Section 13(1)(c) read with

Section 13(2) of the PC Act, 1988. But the Trial Court, looking

into the substance of the charge-sheet relating to the materials

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collected by the I.O., has felt that I.A.No.21 filed under Section

239 of the Cr.P.C. requires to be allowed and has hence

discharged her from the alleged offences, which is challenged

under this petition. But the fact remains that there was a role

made by this accused No.2 along with other accused and

particularly Accused No.1 / G. Janardhan Reddy, as there was

some discussion between Accused No.1 and Accused No.2 and

there was a meeting of minds. But, without looking into the

materials collected by the I.O. consisting of statement of

witnesses and documents secured during investigation but only

on the premise that Accused No.2 is a member of the family

involved in crime, she has been discharged from the offences,

which impugned order cannot stand the test of law. Therefore,

it requires for intervention in this petition by exercising power

under Section 482 of the Cr.P.C. to set aside the impugned

order passed by the Trial Court in Spl.CC.No.116/2012 dated

08.10.2015.

8. Further, the learned counsel has, in conformity with

the oral and documentary evidence in support of the allegations

made against Smt. G. Lakshmi Aruna who is arraigned as

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Accused No.2, has put forth the same in a Tabular column at

Paragraph 7 of the petition, which has been stated in detail.

The counsel has addressed his arguments in conformity with

the allegations as regards conspiracy with a dishonest intention

to cheat the Government of Karnataka and so also has

produced documentary evidence in terms of the material

collected by the I.O. during the course of investigation in

respect of the Mining Lease No.2434 standing in the name of

M/s. AMC of which the second respondent is a partner, and

these contain the intimation given by the previous partners

regarding transfer of rights to accused no.1 / Janardhan Reddy

and accused no.2 / G. Lakshmi Aruna. The oral evidence in

terms of material documents have been secured by the I.O.

during the course of investigation and so also recorded the

statements of CW-24, CW-26 and even the statement of CW-27

and all these material evidence secured by the I.O. during the

course of investigation reveals that Accused No.2 was also

having a pivotal role to commit the alleged offences with her

husband Accused No.1 / G. Janardhan Reddy who is facing

trial along with the other accused.

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But the bone of contention urged in support of Accused

No.2 is that she was only a partner in M/s. AMC. But she was

not responsible for the day-to-day affairs and the act alleged

against the second accused could not be looked into as

standalone acts, as she had not actively participated in the

company operations and as such, sought for discharge. But the

contention of the learned counsel is that the Trial Court has not

considered the material documents which were secured by the

I.O. during the course of investigation but has only taken into

consideration certain stray statement of witnesses which were

recorded by the I.O. during the course of investigation and

allowed I.A.No.21 for discharge and accordingly, Accused No.2

was discharged from the criminal charges at the stage of

framing of charge against the accused, which is patently

erroneous and it requires for intervention and consequently the

impugned order passed by the Trial Court in Spl. CC

No.116/2012 dated 8.10.2015 requires to be set aside.

9. On all these premise, the learned counsel for the

petitioner seeks to allow the petition and consequently to set

aside the impugned order passed by the Court of the XLVI Addl.

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City Civil & Sessions Judge and Special Judge for CBI Cases at

Bangalore City (CCH-47) in Spl.C.C.No.116/2012 dated

08.10.2015 discharging Accused No.2 from the alleged offences.

Further, he seeks to direct her to face trial for the offences

which were lugged against her under the IPC, 1860 specifically

and so also for offences punishable under the PC Act, 1988.

10. In support of his arguments, learned counsel for the

petitioner has placed reliance on a judgment rendered by the

Hon’ble Supreme Court in Criminal Appeal No.957/2017

(M.E.Shivalingamurthy vs. Central Bureau of Investigation,

Bengaluru).

The appellant – M.E.Shivalingamurthy who is arraigned as

Accused No.3 in Spl.C.C.No.116/2012 had filed an application

in I.A.30 under Section 239 of Cr.P.C. seeking discharge. The

said application came to be allowed by the trial Court.

Thereafter, the order passed by the trial Court came to be set-

aside by the High Court stating that the matter requires

intervention. Against the order passed by the High Court,

Accused No.3 preferred the above criminal appeal before the

Hon’ble Supreme Court. The Hon’ble Supreme Court vide order

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dated 07.01.2020, dismissed the appeal and upheld the order

passed by the High Court setting aside the order passed by the

trial Court allowing the application filed by the appellant

seeking discharge.

In view of the fact that Accused No.3 in the very same

case in Spl.C.C.No.116/2012 who was previously discharged

from the offences leveled against him by the order of the Trial

Court has now been directed to face trial along with the other

accused by an order of the High Court, which has as well be

confirmed by the Hon’ble Apex Court, the learned counsel

contends that the same ideology be adopted in the present case

on hand and on this ground, the second respondent / second

accused be directed to face trial for the alleged offences by

allowing the present petition and setting aside the order dated

08.10.2015 of the Trial Court in Spl.CC.No.116/2012.

11. The learned Senior counsel Shri Sandesh J. Chouta

appearing for the learned counsel for Respondent No.2 /

accused No.2 has taken me through the materials collected by

the I.O. during the course of investigation and so also the

Senior counsel has also banked upon Annexure-R1 which is the

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copy of I.A.No.242/2015, Annexure-R2 which is the copy of

I.A.No.243/2015, which has been filed before the Hon’ble

Supreme Court of India in W.P(Civil) No.562/2009. In addition

to that, Annexure-“R3” which is a copy of the affidavit filed by

CBI dated 3.8.2017, Annexure-“R4” which is the copy of the

order dated 9.8.2017 of the Hon’ble Supreme Court of India

inclusive of Annexure-“R5” which is the copy of the order dated

18.04.2013 of the Hon’ble Supreme Court of India.

Learned Senior counsel Shri Sandesh J. Chouta for

Respondent No.2 has taken me through the objections filed in

this petition in terms of response, that the petitioner S.R.

Hiremath is neither the informant / complainant, victim or

witness to the present lis and would not come under the

category of an aggrieved party. The petitioner is a stranger to

the present proceedings and he has not initiated the same

towards meeting the ends of justice, though he is a right

spirited person to file a writ petition under Article 32 of the

Constitution of India. But has done so by being a vexatious

and only in the guise of invoking the inherent power of High

Court under Section 482 of the Cr.P.C. But the petitioner in

this petition at paragraph 7 though has specified the allegations

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against Smt. G. Lakshmi Aruna arraigned as Accused No.2, but

the allegations do not meet those points, which clearly

demonstrate that there are no grounds to entertain the petition.

The main allegation is relating to conspiracy and also with a

dishonest intention to cheat the Government of Karnataka in

the matter of transferring / taking over the lease-hold rights of

mining lease No.2434 of M/s. Associated Mining Company was

taken over by Shri Gali Janardhan Reddy who is arraigned as

Accused No.1 and Smt. Lakshmi Aruna who is arraigned as

Accused No.2. But the witness CW-24 / Shri D. Hanumantha

Raya who is cited as a witness, has stated of the official acts

done by him relating to the retirement of the earlier partners

and the induction of the new partners and further states

regarding renewal of mining lease, all in respect of M/s. AMC.

But this witness does not state in his statement as regards

implicating Accused No.2 in any manner but it is specifically

stated that this witness does not implicate Smt. Lakshmi Aruna

who is arraigned as Accused No.2. Hence, in the entire

statement of this witness, there is nothing inculpatory to

inculpate Accused No.2 with regard to having a specific role by

her for obtaining the partnership of the said firm by way of

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transfer of the lease or in the grant or renewal of the mining

lease of the said firm.

12. In respect of the conspiracy, CW-26 / Shri D.R.

Veeranna has also given a statement during the course of

investigation. But the statement of this witness only mentions

the procedure for grant of mining lease. This witness also did

not implicate Accused No.2 Smt. Lakshmi Aruna in any manner

that she had hatched a criminal conspiracy with her husband

to commit the alleged offences. In the entire statement of this

witness, there is nothing to inculpate Accused No.2 Smt.

Lakshmi Aruna with regard to having a vital role of being in

partnership with Accused No.1 and having obtained the mining

lease.

Shri K.M. Vishwanath who is also a witness, has also

given a statement under Section 164 of the Cr.P.C. stating that

the alleged force and inducement for securing the firm was used

by Accused No.1 namely Gali Janardhan Reddy, to get in as

new partners of the firm. But in the entire statement of this

witness, there is no whisper or any allegation made against

accused no.2 with regard to any force, threat or inducement

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being made to take hold of the firm. But all the incriminating

materials are attributed against accused No.1 alone.

Similarly, allegation No.2 is as regards taking over the

mines illegally stating that Shri Gali Janardhan Reddy /

Accused - 1 and Smt. Lakshmi Aruna/Accused - 2 have not

carried out any mining operations in the lease-hold area of

M.L.No.2434 of M/s.Associated Mining Company (for short

‘AMC’) and they carried illegal mining operations in other mines

located in the forest area, without any authority.

As regards the said allegation No.2, CW-20 / Dushyant

Reddy had given his statement before the I.O. during the course

of investigation. In the entire statement of this witness, there is

no allegation of any role played by this accused no.2 Lakshmi

Aruna. This witness has given statement as per Section 164 of

the Cr.P.C.

CW-27 / Ananth Sena Reddy and so also CW-40 /

Venkata Siva Prasad, CW-41 / Veerabhaskar Reddy, CW-48 /

Mulagunda Pardhan Saradhi, CW-76 / Rajashekar Chunduru,

CW-95 / P.K. Murgan, CW-63 / Sunil Kumar Gupta, CW-73 /

Sarvanan, CW-140 / Raghavendra and CW-213 / G. Veeresh,

all these witnesses have given their statements before the

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Investigating Agency during the course of investigation. But on

a cursory glance of the statements of these witnesses, nothing

is mentioned specifically as to the role of Accused No.2 /

Lakshmi Aruna that she had a pivotal role with Accused No.1 /

Gali Janardhan Reddy in respect of the offences lugged against

her. But the witnesses have been cited in the charge-sheet

where the I.O. said to have recorded the statements during the

course of investigation and their statements have been included

in the charge-sheet and laid the charge-sheet against the

accused persons. Any of the statements of the said witnesses

do not point out to the role of Accused No.2 as regards having

been involved in Allegation No.2.

Allegation No.3 is as regards the iron ore illegally

extracted from the surrounding areas of LMC and M/s. Dalmia

Mines were sold by Accused No.1 Gali Janardhan Reddy to

various buyers including M/s. J.S.W. Steel Ltd. and received

the proceeds to the account of M/s. AMC held with SBI, Bellary

Main Branch. And that Accused Nos.1 and 2 also utilized the

said amount of more than Rs.160 crores which was credited to

their account for their personal benefits and they enjoyed the

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benefits of illegal mining carried on by them with the help of

their associates.

CW-25 / Phani Kishore and CW-4 / T. Sreenivasa Rao

were examined as regards Allegation No.3. The said witness

CW-25 is by avocation an Accounts Manager of AMC and is

also one of the most important witnesses for the prosecution.

His tenor of allegations includes working of the AMC firm like

its functions, account transactions and as such. He has

specifically stated in one of his 161 statements that any policy

matters of the firm was decided by Gali Janardhan Reddy; any

decision to make any payment to any party was also decided by

Gali Janardhan Reddy. Further, Accused No.1 used to approve

the vouchers after verification with the rates decided at various

meetings with the parties. On seeing the approval made on the

voucher printed from tally software, Smt. G. Lakshmi Aruna

used to sign the cheques. Further, Accused No.1 having the

role in all the mining iron ore business, any information relating

to the firm should be brought to the knowledge of accused no.1

/ Gali Janardhan Reddy who is required to face trial. But

accused No.2 / G. Lakshmi Aruna is a partner of the firm but

any witness does not speak anything implicating Accused No.2.

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13. Even though it cannot be straightaway inferred that

she was just a sleeping partner and she did not participate in

the business of the firm, but every role has been made by her

husband Gali Janardhan Reddy who is arraigned as Accused

No.1. It is specifically taking into consideration the material on

record, Accused No.2 G. Lakshmi Aruna cannot be held even

vicariously liable for alleged illegal acts of others which even

finds place in the material secured by the Investigating Agency

during the course of investigation. The charge-sheet has been

laid by the I.O. But it is a bulky charge-sheet consisting of

several witnesses. None of the witnesses have specifically

stated to incriminate the Accused No.2 G. Lakshmi Aruna

having a pivotal role and also direct involvement in the alleged

transaction. But the allegation made against Accused No.1 /

Gali Janardhan Reddy are forceful and are attributed only

against Accused No.1 who is none other than the husband of

this accused Lakshmi Aruna. But at a cursory glance of the

statements of CW-20, CW-27, CW-40, CW-41, CW-48, CW-76,

CW-95, CW-63, CW-73, CW-140 and CW-213 out of the

witnesses who have been cited in the charge-sheet, it reveals

that the said witnesses were engaged in excavating iron ore and

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transporting the same to stack yard, in providing machinery for

mining operations at the request of Janardhan Reddy and

deployed machinery at the places shown by his representatives,

some were production Manager, Project Manager and carried

out mining operations in different sites as per instructions, etc.

Though these witnesses have been cited by the prosecution as

witnesses in the charge-sheet but the allegation in respect of

the accused Lakshmi Arun is the vital, is lacking in the case of

the prosecution. None of the afore-cited witnesses on the part

of the prosecution have implicated Accused No.2 G. Lakshmi

Aruna nor they have made any reference of her name and so

also some vital activities done by her in respect of the

allegations made against the accused in the charge-sheet laid

by the Investigating Agency. All these material documents

have been considered by the Trial Court in Spl.CC No.116/2012

and thereby has allowed I.A.No.21 by order dated 8.10.2015 by

discharging the accused-G. Lakshmi Aruna from the alleged

offences.

14. Lastly, learned Senior counsel for Respondent No.2

has referred to the affidavit filed by the CBI, who is arraigned as

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Respondent No.1 in this matter. During the course of trial of

the case, I.As were filed by each of the accused in the Trial

Court. That is before the XLVI Addl. City Civil & Sessions

Judge and Special Judge for CBI Cases, seeking discharge from

the cases. Accused / No.2 Smt. G. Lakshmi Aruna as well, had

filed I.A.No.21 under Section 239 of the Cr.P.C. for seeking

discharge. The CBI has examined the impugned order passed

by the Trial Court dated 8.10.2015 in respect of discharging

Accused No.2 Smt. Lakshmi Aruna and Accused No.3 / M.E.

Shivalinga Murthy. The case was examined thoroughly and

analysed at various levels. But the discharge of Accused No.2

was only on the basis that she was a sleeping partner and she

used to sign the documents on the instruction of Accused No.1.

The specific overt act attributed against Accused No.2 are not

spoken by any of the witnesses including the statements of CW-

20, 24, 26, 27, 40, 41, 48, 76, 95, 63, 73, 140 and 213.

Though these witnesses have given their statements before the

Investigating Agency during the course of investigation, they

have not revealed any material incriminating against Accused

No.2 - G. Lakshmi Aruna to reveal that there is a specific role

made by her with Accused No.1 who is none other than her

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husband. But the aforesaid witnesses have not spelt out

anything about the involvement of Accused No.2 in the mining

business of M/s. Associated Mining Company. Accused No.2

has no specific role in the affairs of the company. But all the

policy matters of the firm were decided by her husband Gali

Janardhan Reddy who is arraigned as Accused No.1, which has

already been stated supra. But this Accused No.2 was only

subscribing her signature on the cheques after the same were

approved by Gali Janardhan Reddy. The competent authority

of the CBI, noticing the grounds of discharge as stated by filing

an application under Section 239 of the Cr.P.C. vis-à-vis

evidence available, is also of the opinion that there is no specific

evidence to state that Accused No.2 had participated in the

affairs of the firm. Therefore, there is no material to state that

she had done the illegal acts as narrated in the materials

collected by the I.O. and so also substance of the charge-sheet.

Even it cannot be established that Accused No.2 illegally sold

the iron ore. But the evidence as regards illegal mining it also

does not find place in the record in order to establish the guilt

of the accused but she was only a sleeping partner attending

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the activities of the company to attract a prima facie case

against her to proceed further.

This affidavit finds place in the record and banked upon by

the learned counsel for Accused No.2 / Respondent No.2. On all

these grounds, the learned Senior counsel seeks for dismissal of

the petition filed by the petitioner Shri S.R. Hiremath, though he

is the right spirited person to challenge the allegation of mining

operations in Karnataka, that too in Bellary area. But there is

no specific material or any incriminating material attributed

against Accused No.2 - Smt. Lakshmi Aruna who is stated to

have participated in the conspiracy with dishonest intention to

cheat the Government of Karnataka as contended by the counsel

for the petitioners. On all these premise, seeking for dismissal of

the petition, as there is no merit for intervention of the order

passed by the Court of the XLVI Addl. City Civil & Sessions

Judge and Special Judge for CBI in Spl.CC No.116/2012 dated

8.10.2015 and thereby praying to confirm the said order of

discharge.

15. The learned counsel for Respondent No.2 has relied on

the following citations, in support of his case:

: 26 :

1) SIMRANJIT SINGH MANN VS UNION OF INDIA AND ANOTHER

– (1992) 4 SUPREME COURT CASE 635:-

3. On 19th August, 1992, the petitioner filed this petition under Article 32 of the Constitution complaining of violation of Articles 22, 21 and 14 of the Constitution. The locus pleaded in paragraph 2 of the petition is as under:

“The petitioner is the President of

Akali Dal (M) and is an acknowledged political leader and, therefore, is vitally interested in upholding the rule of law and ensuring that the same is applied equally with fairness, equity and good

consciousness to all”.

The main thrust of the petitioner's case is that once the Designated Court's finding that no case for conviction under Sections 3 and 4 of the TADA Act was made out was affirmed by this Court, this Court had no jurisdiction to confirm the death sentence as the reference for confirmation could only be disposed of by the High Court of Maharashtra. This Court, avers the petitioner, deviated from this course in the case of the two convicts thereby violating the rule of law as well as Articles 22, 21 and 14 of the

Constitution. Secondly, contends the petitioner, if the case came to be decided by this Court under the TADA Act, since the constitutional validity of that law was under challenge, it was incumbent on this Court to await the court's adjudication on that point before disposing of the death reference. The petitioner has also questioned this Court's view that the case belongs to the rarest to rare category and hence the sentence of death was justified. On this line of reasoning the petitioner seeks certain declarations, namely, (a) that the trial of the two convicts was bad in law and violative of Articles 14, 21 and 22 of the

Constitution as the Designated Court had no

: 27 :

jurisdiction to proceed with the case on its holding that no offence under Sections 3 and 4 of the TADA Act was made out (b) the reference to the Supreme Court was bad in law and violative of Articles 14 and

22 of the Constitution and (c) the sentence imposed by the Designated Court and confirmed by this Court was bad in law and violative of Articles 21, 22 and 14 of the Constitution.

7. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognises as sufficient to permit another person, e.g. next friend, to move the Court on his behalf. If a guardian or a next friend initiates proceedings for and

on behalf of such a disabled aggrieved party, it is in effect proceedings initiated by the party aggrieved and not by a total stranger who has no direct personal stake in the outcome thereof. In the present case no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction

recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. If the aggrieved party invokes the jurisdiction of this Court under Article 32 of the Constitution, that may stand on a different footing as in the case of A.R. Antulay v. R.S. Nayak and Anr. . However, we should not be understood to say that in all such cases the aggrieved party has a remedy under Article 32 of the Constitution. Unless an aggrieved party is under

some disability recognised by law, it would be unsafe

: 28 :

and hazardous to allow any third party to question the decision against him. Take for example a case where a person accused under Section 302, I.P.C. is convicted for a lesser offence under Section 324, I.P.C.

The accused is quite satisfied with the decision but a third party questions it under Article 32 and succeeds. The conviction is set aside and a fresh trial commenced ends up in the conviction of the accused under Section 302, I.P.C. The person to suffer for the unilateral act of the third party would by the accused! Many such situations can be pointed out to emphasise the hazard involved if such third party's unsolicited action is entertained. Cases which have ended in conviction by the apex court after a full gamut of litigation are not comparable with preventive detention cases where a friend or next of kin is

permitted to seek a writ of Habeas Corpus. We are, therefore, satisfied that neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. On first principles we find it difficult to accept Mr. Sodhi's contention that such a public interest litigation commenced by a leader of a recognised political party who has a genuine interest in the future of the convicts should be entertained. In S.P. Gupta v. Union of India [1981] Suppl. SCC 87, Bhagwati, J. observed:

“But we must be careful to see that

the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others....” These observations were made while discussing

the question of 'locus standi' in public interest

litigation. These words of caution were uttered while

: 29 :

expanding the scope of the 'locus standi' rule. These words should deter us from entertaining this petition. This accords with the view expressed by this Court in M. Krishna Swami v. Union of India and Ors. .

2) R. BALAKRISHNA PILLAI VS STATE OF KERALA

– 1995 CRI .L.J. 1244

4. … Sections 238 and 239 are a complete code in the matter of the procedure to be followed for the purpose of discharging the accused or for framing the charge in any warrant case instituted on a police report. A third party cannot have any say in the matter. The question of any third party being permitted to take part in the proceedings while the court considers the materials on record in order to

ascertain whether a charge should be framed or the accused should be discharged does not therefore arise.

5. The question whether a third party can be

permitted to challenge the correctness of the conviction and sentence imposed by a court after a regular trial came up for consideration before the Supreme Court in Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653:(1993 Cri LJ 37). The Supreme Court held that neither under the provisions of the Code nor under any other statute is a third

party stranger permitted to question the correctness of the conviction. In that connection the Supreme Court referred to the following observation in S. P. Gupta v. Union of India, 1981 Supp SCC 87 : (AIR 1982 SC 149).

In the light of the observations of the Supreme

Court aforementioned and on a proper understanding of the provision contained in Section 239 of the Code of Criminal Procedure there can be no doubt that Shri Achuthanandan, the Leader of the Opposition in the Kerala Legislative Assembly has no locus standi to

take part in the proceeding before the Special Judge

: 30 :

while considering the question of discharge under Section 239 of the Code. The Special Judge has therefore committed an illegality in holding that an opportunity can be given to Shri Achuthanandan for

being heard while hearing the case under Section 239, Criminal Procedure Code. Annexure-I order is therefore unsustainable.

3) RAJIV RANJAN SINGH 'LALAN' & ANR VS UNION OF

INDIA & ORS - (2006) 6 SUPREME COURT CASE 613

C. Constitution of India – Art.32 – PIL – Locus

standi / Standing – Criminal matters – Standing to question conduct of criminal proceedings – Fodder Scam cases – Held (per majority: per Balakrishnan,

J.), it is for the prosecution to prove its case and for the accused (Respondents 4 and 5) to prove that they did not have disproportionate income as alleged by the prosecution – It is a criminal litigation exclusively between Respondents 4 and 5 and the State – Nobody else has got any right to interfere, especially by way of PIL or else such PIL would only hamper the course of justice and may cause prejudice to accused denying them a fair trial, and may even damage prosecution case – Moreover, on facts though petitioners have alleged a series of irregularities, they are not supported by basic facts having a solid

foundation – Held (per majority: per Lakshmanan, J.). PIL is totally foreign to pending criminal proceedings – Petitioners are waging a political battle against Respondents 4 and 5 through medium of PIL, which is impermissible – Prevention of Corruption Act, 1988 – Ss. 27, 5 and 13(1)(e) – Criminal Procedure Code, 1973 – Ss. 403, 397 to 399 and 401.

The Judgments of the Court were delivered by

K.G. BALAKRISHNAN J, - These writ petitions are filed as Public Interest Litigation by the two petitioners herein who were Members of the Parliament at the time of filing the petitions.

: 31 :

Respondent nos. 4 and 5 were formerly Chief Ministers of the State of Bihar. It is alleged by the petitioners that they filed writ petitions before the High Court of Patna alleging large-scale defalcation of

public funds and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandary in the State of Bihar and pursuant to these allegations, several cases were registered by the Police and investigation of these cases was later handed over to the Central Bureau of Investigation. In an earlier petition filed before this Court on 19.3.1996, this Court directed that the investigation shall be monitored by the Division Bench of the Patna High Court and in that Order, it was indicated that the CBI Officers entrusted with the investigation shall inform the Chief Justice of Patna

High Court from time to time of the progress made in the investigation and if they needed any directions in the matter of conducting the investigation, obtain them from him and it was also said that the learned Chief Justice may either post the matter for directions before a Bench presided over by him or constitute any other appropriate Bench. It was also directed that the State Government shall co-operate in assigning adequate number of Special judges to deal with the cases expeditiously so that no evidence may be lost.

21. The learned Counsel for the respondent nos.

4 and 5 submitted that the original petition is a politically motivated move to malign respondent nos. 4 and 5 and this sort of public interest litigation should not be entertained by the Court and placed reliance on the series of decisions passed by this Court. It may be noticed that the case nos. 5/98 has been filed against the respondent nos. 4 and 5 alleging that they had amassed wealth disproportionate to their known sources of income while holding the post of Chief Minister of the State of Bihar. Both the petitioners are not in any way connected with this case. They are not de-facto

complainant in this case. It is for the prosecution to

: 32 :

prove its case and the respondent nos. 4 and 5 to deny that the allegations are not true and they did not have the disproportionate income as alleged by the prosecution. It is a criminal litigation exclusively

between respondent nos. 4 and 5 and the State. It is also important to note that in a case of this nature, nobody else has got any right to interfere especially by way of public interest litigation or else such public interest litigation would only hamper the course of justice and may cause prejudice to the accused by denying a fair trial. In this case, as early as 2004, 132 witnesses were examined on the side of the prosecution and 93 witnesses were examined on the defence side. Arguments of the prosecution were over as early as in 14.7.2004 and the defence arguments continued upto 19.7.2004. Because of the present

public interest litigation, the trial could not be conducted. It is equally important to note that though the petitioners have alleged series of irregularities, but they are not supported by basic facts having solid foundation.

37(c). It is thus clear the above judgment that

once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by the monitoring Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into

the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure.

70. In SCC para 92 of the said judgment the

concept of PIL has been explained. Any member of the public having sufficient interest can maintain an action for judicial redressal for public injury arising from breach of duty or violation of the Constitution.

This is absolutely essential for maintaining the rule of

: 33 :

law, furthering the cause of justice and achieving the constitutional goals, subject to a caveat which states that the member of the public who approaches by way of PIL should be acting bona fide and not for

personal gain, private profit or political motivation.

4) YOGESH @ SACHIN JAGDISH JOSHI VS STATE OF MAHARASHTRAV - (2008) 10 SUPREME COURT CASES 394

15. Chapter XVIII of the Code lays down the

procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to

framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.

16. It is trite that the words "not sufficient

ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on

the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before

him gives rise to suspicion only as distinguished from

: 34 :

grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials

on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal) .

5) NATIONAL COMMISSION OF WOMEN VS STATE OF DELHI & ANR - (2010) 12 SUPREME COURT CASES 599

5. The present Special Leave Petition has been filed by the National Commission for Women and the only plea raised is that the reasons given by the High Court for reducing the sentence awarded under

Section 376 of the IPC were not acceptable as a helpless girl had been cruelly exploited and cheated by the accused. This matter came up for motion hearing before a Bench of this Court and permission to file the Special Leave Petition was granted and notice was issued on 2nd April 2009.

6. Respondent No.1, that is the State of Delhi,

has filed a counter affidavit, in effect supporting the case of the Commission although it has been S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE conveyed to us by the learned Additional Solicitor General that the

State does not propose to file an application for leave to appeal against the impugned judgment. The accused has also been served by publication but has not chosen to appear in response thereto.

11. An appeal is a creature of a Statute and

cannot lie under any inherent power. This Court does undoubtedly grant leave to the appeal under the discretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organization pro-bono publico to file an appeal

would be a dangerous doctrine and would cause utter

: 35 :

confusion in the criminal justice system. We are ,therefore, of the opinion that the Special Leave Petition itself was not maintainable.

12. In Pritam Singh v. State AIR (37) 1950 SC 169 , this Court while dealing with a criminal matter (after the grant of leave under Article 136 of the Constitution) considered the scope and ambit of this Article and observed:

"9. On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases on1y, and as far as possible a more or less

uniform standard S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant

special leave to appeal only in those cases where special circumstances are shown to exist........It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this

Court will not grant special leave, unless it

: 36 :

is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of

sufficient gravity to warrant a review of the decision appealed against." 13. In P.S.R. Sadhanantham v. Arunachalm

And Another (1980) 3 SCC 141, this Court was dealing with the locus standi of a private person in this case a victim's brother, who was neither a complainant nor a first informant in the criminal case but had filed a petition under Article 136 of the Constitution of India. This Court observed that the strictest vigilance was required to be maintained to prevent the abuse of the process of the Court, more

particularly, in S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE criminal matters, and ordinarily a private party other than the complainant, should not be permitted to file an appeal under Article 136, though the broad scope of the Article postulated an exception in suitable cases. It was spelt out as under:-

"7. Specificity being essential to legality, let us if the broad spectrum spread out of Article 136 fills the bill from the point of view of "procedure established by law". In express terms, Article 136

does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Article 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases

injustice, is the sky itself. This Court

: 37 :

functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a

power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the

highest court. The founding fathers unarguably intended in the S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity."

17. We, accordingly, dismiss the Special Leave

Petition as not maintainable. The permission to file the S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE Special Leave Petition granted vide this Court's order dated 2nd April, 2009, is, accordingly, revoked.

6) DALIP SINGH VS STATE OF UTTAR PRADESH & ORS (2010) 2 SUPREME COURT CASES 114

1. For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and

`Ahimsa' (non-violence). Mahavir, Gautam Buddha

: 38 :

and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to

feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In last 40 years, a new creed of litigants has

cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to

falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

7) M/S KERALA TRANSPORT & CO., VS D.S. SOMA SHEKAR & OTHERS (ILR 1981 KAR 169)

5. When the aforesaid petitions came up for

admission before this Court, the office raised an objection with regard to the maintainability of the above petitions as the State of Karnataka, who is the complainant before the trial court, has not filed the revision petitions, but on the other hand they were preferred by the original complainant, viz., M/s. Kerala Transport Company. On 31-5-1979 this Court admitted the above petitions keeping open the question of maintainability, which shall be decided at the time of final hearing.

: 39 :

7. The petitions filed by the Kerala Transport Company as also the petitions filed by the State as aforesaid came up for hearing. In the meantime, as stated earlier, A-1 filed I.A. No. I in each of the 33

petitions, filed by M/s. Kerala Transport Company, praying that those petitions be dismissed as being not maintainable in view of the revision petitions filed by the State against the very same order of discharge passed by the trial Court. The parties submitted that the said I.A. No. I be disposed of as a preliminary issue and accordingly arguments were heard on the said I.A. Learned counsel appearing for the accused, the original complainant and the learned Advocate General appearing for the State advanced lengthy arguments on the question of maintainability or otherwise of the petitions filed by M/s. Kerala

Transport Company. 9. … He further contended that as the charge-

sheets have been filed in pursuance of a police report and investigation, a private party has no locus standi and if a private party is permitted to prosecute the proceedings along with the State, it would not only lead to chaos and confusion but also would amount to a sort of 'double jeopardy'.

12. Sections 397 or 401 Cr.P.C. confer general

revisional jurisdiction on the High Court and Sessions

Judge. Section 397 Cr.P.C. empowers the High Court and Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, as to the regularity of any proceedings of such inferior criminal court. Section 401 Cr.P.C. specifies the revisional powers of the High Court in dealing with any proceeding the record of which has been called for under Section 397 or which otherwise has come to its

: 40 :

knowledge. In Pranab Kumar Mitra v. State of West Bengal, the Supreme Court has observed thus :-

"The revisional powers of the High Court vested in it by this section, read

with S. 397, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rule of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code."

13. … Therefore, the proceedings before the

Magistrate in all the cases have proceeded on a police report and if that is so a private party has no locus

standi to invoke revisional jurisdiction. In Thakur Ram v. State of Bihar, , the Supreme Court while considering the revisional powers under Section 435, Cr.P.C. (Old Code) has observed thus :-

"In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of S. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that

the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as in instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person

: 41 :

who has acted against the social interests of the community to book."

The ratio laid down by the Supreme Court

makes it clear that tin criminal matters the party who is treated as the 'aggrieved party' is the State, which is the custodian of the social interests of the community at large; so it is the primary duty of the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. It is also observed that the criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who according to that party had caused injury to it. Applying the aforesaid ratio to the facts of the case, it is seen that M/s. Kerala Transport

Co., the Court in all these revision petitions is the informant of commission of cognizable offences by the accused and that it has been aggrieved by the illegal acts of the accused along with the State Bank of Mysore and as such an aggrieved party. M/s. Kerala Transport co., ceases to be an aggrieved party the moment the State steps into its place by placing a charge-sheet against the accused and it is for the State of continue the proceedings to its conclusion. M/s. Kerala Transport Co., recedes to the position of a third party and if it is permitted to prosecute the revision petitions parallel to the revision petitions filed

by the State in respect of the very same impugned orders, it would amount to permitting M/s. Kerala Transport Co., a third party, to use criminal law to wreck private vengeance against the accused. The state being saddled with the primary responsibility of safeguarding the social interests of the community at large is to take all necessary steps to book the person who has acted against the social interest of the community. If that is so, it cannot be said that M/s. Kerala Transport Co., could maintain and continue the aforesaid revision petitions in view of the State having challenged the very impugned orders in

Crl.R.P. Nos. 334 to 370 of 1979.

: 42 :

20. … The circumstances appearing in this case

show that the State who is the aggrieved party and custodian of the social interests of the community at

large has taken all steps necessary for bringing the person (accused) who has acted against the social interests of the community to book, in which case the third party, viz., M/s. Kerala Transport Co., has ceased to be an independent entity with a cause of its own to pursue its cause. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. In other words, the original petitioner, as a private party has no locus standi to pursue the petitions under the circumstances mentioned above and if that is so, the

said petitions are not maintainable and they are liable to be dismissed.

21. In the result, for the reasons stated above,

I.A. No. I filed in each of these petitions is allowed and consequently the above petitions are dismissed as being not maintainable.

8) SUSHILA DEVI VS STATE OF RAJASTHAN AND OTHERS

(2014) 1 SUPREME COURT CASES 269

Constitution of India – Arts.136, 32 and 226 –

SBI Investigation – Monitoring of a case by Supreme Court – Scope of – Where investigation is conducted by CBI on direction of Supreme Court, held, further monitoring of case by Supreme Court would not continue subsequent to filing of charge-sheet before competent court.

These are all the reliances placed by the learned Senior

counsel for Respondent No.2 / accused No.2, which are

squarely applicable to the given facts and circumstances of the

: 43 :

case to entertain the petition filed under Section 239 of the

Cr.P.C. seeking discharge from the offences lugged against the

accused. Therefore, the Trial Court has rightly considered the

materials secured by the I.O. during the course of investigation

and even laid the bulky charge-sheet against the accused. But

this petitioner being arraigned as Accused No.2 and the

I.A.No.21 which has been filed by her before the Court of the

XLVI Addl. City Civil & Sessions Judge and Special Judge for

CBI in Spl.CC No.116/2012 dated 8.10.2015 has been rightly

allowed and she has been discharged from the offences alleged.

Therefore, there is no merit in this matter to call for

interference of the order passed by the Trial Court, as the same

is not found to be erroneous or perverse to call for interference

and also there is no warranting circumstances to interfere with

the same.

16. It is in this backdrop, it is relevant to refer to the case

in Spl.CC No.116/2012 which is pending for trial against the

accused cited in the charge-sheet. But Respondent No.2

Lakshmi Aruna who is arraigned as Accused No.2 has filed an

application under Section 239 of the Cr.P.C. seeking discharge

: 44 :

from the alleged offences lugged against her. But the Trial

Court has considered the material secured by the I.O. during

the course of investigation and so also the objection in detail

filed by the Investigating Agency / CBI-ACB, Bangalore

through the Special Public Prosecutor.

But from the allegation made in the charge-sheet, it is

revealed that Shri Gali Janardhan Reddy and the other

accused are alleged to have committed the offences with a

criminal conspiracy, during the year 2009-10 in Ballari and so

also other places in Karnataka to do some illegal mining

activity along the border and forest area of Ballari reserve

forest as regards acts of breach of trust as an agent and

offences of criminal trespass and so also forgery / cheating by

using some forged documents as genuine, committing theft of

iron ore from forest area and other areas of Bellary District in

order to transport the said stolen goods by using the premises

of M/s. AMC, without doing any mining activity in the lease-

hold areas.

But as regards the complaint allegation, the Investigating

Authority has secured material evidence during the course of

investigation that beneficiary to the entire illegal mining is

: 45 :

M/s. Associated Mining Company belonging to the accused

Gali Janardhan Reddy and he is none other than the husband

of this Accused No.2 / Lakshmi Aruna. This accused No.2

used to subscribe her signature in various documents relating

to the company including the banking transaction and she

cannot shirk away from the responsibility to the acts of the

company as this contention was taken by the learned counsel

for the petitioner by referring so much of material documents

and so also so much of statements said to have been recorded

by the Investigating Agency / CBI-ACB, Bangalore.

17. But only after approval made by accused No.1 – Gali

Janardhana Reddy who was carrying out the business affairs

of the mining that accused No.2 – Smt.Lakshmi Aruna used to

subscribe her signature on the cheque. But the materials were

collected by the IO during the course of investigation in order

to laying of the charge sheet against the accused invoking the

offence under Sections 13(1)(c) and (d) of the Prevention of

Corruption Act, 1988. If the trial Court finds that there are any

material evidence which finds place in the record then the only

it has to proceed for framing of charge and even after going

: 46 :

through the oral and documentary evidence which collected

during the course of the investigation. In this regard, it is

relevant to refer Section 239 of Cr.P.C. which reads as under:

239. When accused shall be discharged.

If, upon considering the police report and the

documents sent with it under section 173 and

making such examination, if any, of the accused

as the Magistrate thinks necessary and after

giving the prosecution and the accused an

opportunity of being heard, the Magistrate

considers the charge against the accused to be

groundless, he shall discharge the accused, and

record his reasons for so doing

18. Though the investigating agency has laid the charge

sheet against the accused under Section 173(2) of Cr.P.C. by

following requisite conditions and so also recording of

statement of witnesses as contemplated under Section 161 and

164 of Cr.P.C. but in the instant case, mere recording the

statement of witnesses, it cannot be specifically said that the

incriminating materials were attributed specifically against

accused No.2 – Smt.Lakshmi Aruna. But investigation report

reveals that accused No.1 – Gali Janardhan Reddy is involved

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in respect of committing offences as the criminal conspiracy

and so also fraudulent and criminal breach of trust and also

offences under Section 13(1)(c) and (d) r/w 13 Section 13(2) of

the Prevention of Corruption act, 1988. CWs.9 to 15, CW18,

23, 38, 39, 51 to 58 who are the official witnesses have given

their statement before the investigating agency during the

course of investigation. They were deputed to issue permits to

M/s. Associated Mining Company. But these witnesses have

given the statement during the course of investigation, but

Rule 47 of the Karnataka Forest Rules in respect of issuance of

permits, K.M.Vishwanath who is cited as a witness where his

statement has been recorded as contemplated under Section

164 of Cr.P.C. but he has given a statement before the IO in

respect of the allegations made against Accused No. 1- Gali

Janardhan reddy and even at a cursory glance of his statement

in its entirety he has specifically stated in respect of the

allegation of any force, threat or inducement being made to

take hold of the firm. All the incriminating attributions made

are against Accused No.1 – Gali Jardhan Reddy. Similarly,

CW.20 has also given the statement as contemplated under

Section 164 of Cr.P.C. Even at a cursory glance of statement of

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these witnesses there is no specific reference made to the name

of accused No.2 – Smt.Lakshmi Aruna that she is having

pivotal role with Accused No.1 – Gali Janardhan Reddy in

respect of committing the alleged offences. Similarly the

statement of CWs.27, CW.40, CW.41, they have also given their

statements during the course of investigation but they did not

spell about the role made by accused No.2 – Smt.Lakshmi

Aruna. At a cursory glance of statement of CW.76, this witness

has also never spelt about the role made by accused No.2 –

Smt.Lakshmi Aruna. But all these are policy matters in

respect of the firm and so also, payment to any party and any

decision in respect of the iron ore business was taken by Gali

Janardhan Reddy who is arraigned as accused No.1. Only

after verification of the material documents and also vouchers

approved by him that his wife accused No.2 – Smt.Lakshmi

Aruna used to subscribed her signature on the cheques. Even

at a cursory glance of the entire statement it is only after

approval made by Gali Janardhan Reddy on the vouchers

maintained in the business administration tallies, accused

No.2 – Smt.Lakshmi Aruna used to subscribe her signature on

the cheque. But the statement of CW.4 does not spell any

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incriminating materials against accused No.2 – Smt.Lakshmi

Aruna that she was having a vital role in committing the

alleged offences with her husband accused No.1 – Gali

Janardhan Reddy. There is no dispute that accused No.2 –

Smt.Lakshmi Aruna who is no other than the wife of Gali

Janardhan Reddy and so also she is one of the family members

who is nothing to do with the important role along with her

husband. But she has been lugged into the alleged crime. But

such practice should be curtailed as she being the innocent

victim and just because she happened to be the wife of Gali

Janardhan Reddy, she has been roped in the alleged charge

sheet. But the principles enunciated in the aforesaid decisions

cited by learned senior counsel – Sri Sandesh J.Chouta that

accused No.2 – Smt.Lakshmi Aruna is a sleeping partner of

M/s.Associated Mining Company along with her husband

accused No.1 – Gali Janardhan Reddy. But there is no

specific role made by her in respect of the iron ore business

and there are no incriminating materials against her. But all

the mining business is done by accused No.1 and there is

attribution against him alone as alleged. Therefore, there is no

much force in the arguments addressed by the learned counsel

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for the petitioner for seeking intervention of this Court by

exercising the power under Section 482 of Cr.P.C. On all these

grounds, learned senior counsel for respondent No.2/accused

No.2 seeks for dismissal of the petition.

19. It is relevant to refer that the criminal law was set

into motion against accused No.1 – Gali Janardhan Reddy and

so also other accused. But accused No.2 – Smt.Lakshmi

Aruna, she being a sleeping partner of M/s.Associated Mining

Company was granted the mining lease No.2434 (Old No.625)

for a period of 30 years w.e.f. 2.3.1966 and the same expired

on 1.3.1996. But accused No.3– M.E.Shivalinga Murthy, the

then Director of Mines and Geology, Government of Karnataka

sent a letter dated 5.8.2010 to the Chief Controller of Mines,

Nagpur giving wrong information about the mining lease

granted to M/s. Associated Mining Company. But he is

arraigned as an accused in the charge sheeted case and so also

, he is facing of a trial for the alleged offences. But in

pursuance of the conspiracy hatched by Accused No.1 – Gali

Janardhan Reddy with a dishonest intention to cheat the

Government of Karnataka illegally extracted the iron ore from

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the forest land and he is the prime accused. But accused No.2

– Smt.Lakshmi Aruna who is none other than the wife of Gali

Janardhan Reddy almost all important decisions were taken by

him alone and after approval made by him, then only accused

No.2 – Smt.Lakshmi Aruna used to subscribe her signature on

the cheques. But almost all mining business is directly carried

by Gali Janardhan Reddy who is arraigned as accused No.1 in

the charge sheeted case and moreover the investigating agency

i.e., CBI/ACB has laid the charge sheet against the accused

relating to the case in RC.18(A)/2011. In the charge sheet

several witnesses have been cited as CW.1 to 310. These

witnesses are required to undergo test by the prosecution to

prove the guilt of the accused. But the charge sheeted

materials which collected by the IO during the course of

investigation even at a cursory glance would indicate that

accused No.1 – Gali Janardhan Reddy having a pivotal role in

the mining of iron ore in the lease hold areas of the company

under the mining license. Even in pursuance of conspiracy

i.e., in respect of conspiratorial agreement that accused No.1 –

Gali Janardhan Reddy was having a pivotal role in the mining

operation and its business having extracted iron ore from

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various area of lease hold land of the company. But the

domain it is vested with the prosecution to establish the guilt

of the accused by producing worthwhile evidence. But accused

No.2 – Smt.Lakshmi Aruna has been discharged of the offence

leveled against her by an order passed by the XLVI Additional

City Civil and sessions Judge and Special Judge for CBI Cases,

Bangalore in Spl.C.C.No.116/2012. Even at a cursory glance of

the statement of some of the witnesses i.e., Cws.24, 26, 27, 40,

41, 48, 76, 95, 63, 73, 140, 213, the trial court has arrived at a

conclusion in their statement and also given their statement

during the course of investigation before the investigating

agency that they have not specifically spelt in respect of the

pivotal role made by accused No.2 – Smt.Lakshmi Aruna. Even

at a cursory glance of the aforesaid statements of all those

witnesses and even to say that there are sufficient evidence or

otherwise to say prima-facie materials as against accused No.2

– Smt.Lakshmi Aruna to proceed further, but there is no strong

materials against her for the alleged offences. But the trial

Court has considered I.A.21 filed under Section 239 of Cr.P.C.

after going through the facts of the case and so also the

statement of witnesses and material documents facilitated by

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the investigating agency. Accused No.2 – Smt.Lakshmi Aruna

was only a sleeping partner and there are no incriminating

materials against her to framing of a charge but she has only

subscribed her signature as according to the instructions of

accused No.1 – Gali Janardhan Reddy. Though the aforesaid

witnesses have been cited in the charge sheet that they have

not specifically stated anything with regard to the role of

accused No.2 – Smt.Lakshmi Aruna in commission of the

alleged offences of mining business of the company which is

directly run by accused No.1 – Gali Janardhan Reddy. Even in

the policy matters the decisions were used to be taken by Gali

Janardhan Reddy who is arraigned as Accused No.1. These

are all the materials evidence secured by the IO during the

course of investigation which is considered by the trial Court in

respect of consideration of I.A.21 filed under Section 239 of

Cr.P.C. seeking discharge.

20. However, keeping in view the ambit and scope of this

Section it is always the domain vested with the prosecution to

proceed if circumstances are warranting. But in the instant

case, Smt.Lakshmi Aruna, who is arraigned as Accused No.2

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has been discharged from the offences by the trial Court by

allowing the application filed by her under Section 239 of

Cr.P.C., i.e., I.A.No.21. However, Section 239 of Cr.P.C. is

under what circumstances the accused shall be discharged. If

upon considering the police report and the document sent with

it under Section 173 of Cr.P.C. and making such examination

if any of the accused as the Magistrate thinks necessary and

after giving the prosecution and the accused an opportunity of

being heard, the Magistrate considers the charge against the

accused to be groundless, and he shall discharge the accused,

and record his reasons for so doing. In the instant case the

Court below has considered I.A.21 for discharge, after going

through the entire material, statements of witness, oral and

documentary evidence and came to the conclusion, that there

is no sufficient evidence to proceed against Accused No.2 –

Smt. G. Lakshmi Aruna.

In the instant case, the trial Court has considered the

application filed under Section 239 of Cr.P.C. by Smt.Lakshmi

Aruna, who is arraigned as Accused No.2 seeking discharge.

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In this regard it is relevant to refer Section 227 of Cr.P.C.

which reads as under:

227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 239 of Cr.P.C. which postulates “When accused

shall be discharged - If, upon considering the police report and

the documents sent with it under Section 173 and making

such examination, if any, of the accused as the Magistrate

thinks necessary and after giving the prosecution and the

accused an opportunity of being heard, the Magistrate

considers the charge against the accused to be groundless, he

shall discharge the accused, and record his reasons for so

doing.” In the instant case, the Magisterial powers has been

exercised by the rank of the District and Sessions Judge in

Spl.CC.No.116/2012 as where the accused No.2 had filed an

application under Section 239 of Cr.P.C seeking discharge.

In the instant case, it is necessary to examine the scope

of such exercise made by the Special Judge and even under

: 56 :

Section 227 of Cr.P.C. part of Chapter 18 which applies to trial

before the sessions court. But in the instant case, the Special

Judge is of the rank of District and Sessions Judge. Discharge

- If upon consideration of the record of the case and the

documents submitted therewith, and after hearing the

submissions of the accused and the prosecution in this behalf,

the Judge considers that there is not sufficient ground for

proceeding against the accused, he shall discharge the accused

and record his reasons for so doing.' The language of Sections

239 and 227 are different. The scope of power exercisable to

grant discharge under Section 227 is less compared to the

power of discharge conferred on the Magistrate under Section

239. But in the instant case, the Magisterial power is conferred

to the Special Judge being rank of District and Sessions Judge.

It is for this reason Sessions Judge is required to examine only

the record of the case and documents submitted therewith for

ascertainment as to whether a case is made out for framing

charge or discharge. But under Section 239, the requirement is

different. It envisages ' If upon consideration the police report

i.e., CBI report and the documents sent with it under Section

173 and making such examination, if any, of the accused as

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the Magistrate thinks necessary and after giving the

prosecution and the accused an opportunity of being heard,

the Magistrate considers the charge against the accused to be

groundless, he shall discharge the accused, and record his

reasons for so doing.' But in the instant case, IA.21 was filed

by Accused No.2 – Smt.Lakshmi aruna and the said

application was allowed by considering all oral and material

documents secured by the investigating agency by laying the

charge sheet as against the accused as contemplated under

Section 173(2) of Cr.P.C.

But while considering the case of discharge the trial

Judge has to exercise his judicial mind to the facts of the case

in order to determine whether the case for trial has been made

out by the prosecution. The sufficiency of ground would take

within its fold the nature of the evidence recorded by the police

or documents produced before the court which ex-facie

disclosed that there was suspicious circumstance against the

accused. Then the trial Judge has to apply its mind to proceed

with the case in further to framing of charge and so also, facing

of trial by the accused. This Section 227 of Cr.P.C. is in

Chapter XVIII – Trial before a court of session. But the trial

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court i.e., XLVI Addl.City Civil and Sessions Judge and Special

Judge for CBI Cases, Bangalore in Spl.C.C.No.116/2012 has

considered the application filed under Section 239 of Cr.P.C by

Accused No.2 – Smt.Lakshmi Aruna. But the trial Judge is a

rank of District and Sessions Judge but the concept of Section

239 of Cr.P.C the charge sheet is laid before the Magistrate but

the trial Judge of the rank of District and Sessions Judge as in

a special cases having Magisterial powers. Therefore, even to

exercise the power as contemplated under Section 239 of

Cr.P.C seeking discharge as the trial Court having Magisterial

powers also be discharging the accused as the trial Judge has

to apply its mind to the facts of the case in order to determine

whether a case for trial has been made out by the prosecution.

The materials which secured by the IO during the course of

investigation other than those produced by the prosecution can

also be looked into and should be considered even at the time

of framing of charge to find out whether prima-facie case is

made out or not.

21. But in the instant case, the charge sheet is laid by

the investigating agency – CBI/ACB under Section 173(2) of

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Cr.P.C. Mere because of laying of charge sheet against the

accused by the investigating agency for the offences which

lugged in the charge sheet, but the accused is having right of

recourse to file an application under Section 239/227 of

Cr.P.C. seeking discharge if there are no sufficient evidence or

materials secured by the IO to framing of a charge. If there are

no strong materials find place in the charge sheet case, then

the trial Judge has to apply its mind to consider the

application filed by the accused seeking discharge. But in the

instant case, Accused No.2 – Smt.Lakshmi Aruna has filed

I.A.21 under Section 239 of Cr.P.C. seeking discharge.

Subsequent to filing of an application by her, the Special Public

Prosecutor has filed objections to the said application in detail

by referring the statement of witnesses and so also referring

the material documents secured by the IO and ultimately came

to the conclusion that mere because Accused No.2 –

Smt.Lakshmi Aruna is a partner of M/s. Associated Mining

Company along with Accused No.1 and when there is no active

role is incriminated against her, she cannot be made liable for

the acts done by Accused No.1. She was only subscribing her

signature on the documents only after the documents were

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verified by her husband – Gali Janardhan Reddy who is

arraigned as Accused No.1. Mere because she was subscribing

the signature, it cannot be said that there is direct overt act

attributed against her in committing the alleged offences that

too be in the mining of iron ore business which was being

carried out by accused No.1. Therefore, the XLVI Additional

City Civil and Sessions Judge and Special Judge for CBI Case,

Bangalore has rightly come to the conclusion that there are no

sufficient materials/evidence against Accused No.2 –

Smt.Lakshmi Aruna to proceed in further for framing of charge

and consequently, she was discharged from the case.

Therefore, in this petition, there is no merits or otherwise to

say there is no substance to call for interference of this Court

and no warranting circumstances has arised for intervention of

the impugned order passed by the trial court in

Spl.C.C.No.116/2012 dated 08.10.2015.

22. In terms of the aforesaid reasons and findings, I

proceed to pass the following:

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ORDER

The petition filed by the petitioner S.R. Hiremath,

Honorary Executive Director of Samaja Parivarthana

Samudhaya Asha Deep under Section 482 Cr.P.C. is hereby

rejected. Consequently, the impugned order passed by the

46th City Civil & Sessions Judge & Special Judge for CBI

Cases at Bangalore City in Spl.C.C.No.116/2012 dated

8.10.2015 is hereby confirmed. Since it is a case of the year

2012, the Trial Court is directed to expedite the case for

disposal by following the Standard Operating Procedure.

However, all the contentions shall be kept open to both the

prosecution and the defence counsel in the aforesaid case.

Whatever observations made in this order shall not

influence the mind of the Trial Court to dispose of the case

where the other accused are facing trial and shall be disposed

of on merits, in accordance with law.

Sd/-

JUDGE

KS/DKB