M.A. 16549-50/2021 (Exemptions)Allowed, subject to all just exceptions.a. On 24.04.1992, Odisha Mineral Development Company Limited (hereinafter referred to as OMDC) and Usha Rectifier Corporation India Ltd. (hereinafter referred to as URCIL) later changed as UIL to form the Joint Venture Company (JVC) entered into a Memorandum of Understanding (hereinafter referred to as MoU) for the purpose of setting up a crushing and screening plan including mining, processing and marketing of iron ore in order to meet the growing demand of processed ore for Steel Industry.Accordingly, a Joint Venture Company in the name of East India Minerals Limited (hereinafter referred to as EIML) was formed on 18.08.1992 with URCIL and OMDC being its co-promoters.b. On 25.02.2005 Mr. Ashok Kumar Agarwala, petitioner no.1 herein became the Director of M/s Selehium Trading Private Limited (hereinafter referred to as STPL) (petitioner no. 2 herein).M.C.2348/2020 Page 2 of 30 c. On 24.03.2005, Usha India Ltd ('UIL') one of the promoters of the Joint Venture Company (EIML) holding 23,99,940 shares in EIML had transferred these shares to STPL.M.C.2348/2020 Page 2 of 30e. The OMDC in its own 'Annual Report and Accounts' for the year ended on 31.03.2010 (Financial Year 2009-10) notified that it was converted to a Government Company effective from 19.03.2010 under Section 617 of the Companies Act pursuant to the restructuring scheme duly approved by the Ministry and Union Cabinet.It is further notified that the Ministry of Steel, Government of India vide its letter No. 8(14)2007-RMII Crl.M.C.2348/2020 Page 3 of 30 (Pt.File) (Vol III) dated 30.09.2009 communicated that the Union Cabinet in its meeting held on 10.09.2009 had approved the 'Restructuring Scheme' of Bird Group of Companies including the OMDC.The said Restructuring Scheme had also received the approval of the Board as well as shareholders.M.C.2348/2020 Page 3 of 30g. The Deputy Secretary, Ministry of Steel, Government of India vide its Office Memorandum No.1(86)/2010-RM II dated Crl.M.C.2348/2020 Page 4 of 30h. On 30.07.2014, a complaint was made by Shri Umesh Chandra the then Director, RINL holding additional charge of MD, OMDC to the CBI.i. The Ministry of Steel, Government of India published its Annual Report for 2015-16 and uploaded on its official website (steel.gov.in).M.C.2348/2020 Page 5 of 30l. The Ministry of Steel, Government of India published its Annual Report for 2016-17 and uploaded on its official website (steel.gov.in).In the said Annual Report, it has been Crl.M.C.2348/2020 Page 6 of 30m. The Petitioner No. 1 and another co-accused (Mr. Vinay Rai) filed an application dated 25.09.2017 seeking dropping of charges under the provisions of PC Act. The learned CBI Court vide Order dated 25.09.2017 issued notice in the said application to the Respondent CBI and vide order dated 07.02.2018 directed that the application dated 25.09.2017 of the Petitioner No. 1 for dropping of charges shall be taken into consideration while hearing arguments on charge.n. The Ministry of Steel, Government of India published its Annual Report for 2017-18 and uploaded on its official website (steel.gov.in).M.C.2348/2020 Page 7 of 30 o. The Under Secretary to Ministry of Steel, GoI had intimated under RTI reply vide its letter No. 8(4)/2019-BGC dated 06.08.2019 addressed to the co-accused (Mr. Champak Banerjee) that 'subsequent to the Cabinet approval in 2009, EIL become a Government Company and a majority shareholder in OMDC.M.C.2348/2020 Page 7 of 30The said application dated 19.10.2019 sought consideration of the certified copies of the following documents:i) Memorandum and Articles of Association of OMDC;ii) The Bird and Company Limited (Acquisition and Transfer of Undertakings and other Properties) Act, 1890; Crl.M.C.2348/2020 Page 8 of 30M.C.2348/2020 Page 8 of 30iii) The RTI reply from GoI, Ministry of Steel vide communication dated 17.8.2010, the communication of Ministry of Heavy Industries and & Public Enterprises dated 22.8.2019 and Annual Report of the Ministry of Steel, Government of India for the year 2015-16;iv) The RoC documents of the year 2005 upto 2009;v) The RoC record along with the 92nd Annual Report and Accounts.Accordingly, the learned CBI Court vide Order dated 19.10.2019 issued notice of the said Application to Respondent State and directed that the reply be filed within 10 days.r. Thereafter, the Respondent CBI did not advance any arguments on the said Application dated 19.10.2019 despite availing several opportunities on 21.12.2019, 17.01.2020 and Crl.M.C.2348/2020 Page 9 of 30On being challenged, this Court vide order dated 17.02.2020 in appeal directed the Respondent CBI to supply copies of said documents to the Petitioners herein.t. On 12.03.2020, the Respondent CBI through its IO denied all the documents filed by the Petitioner No. 1 vide his Application dated 19.10.2019 without any reason.The said documents being denied by the Respondent CBI are public documents of impeccable quality and most of them have been issued by the Government of India itself, being the original author and creator of the said documents.i) The Annual Returns of OMDC duly certified by the ROC;ii) The relevant pages of the Balance Sheet / Annual Report of OMDC;iii) The letter No. OMDC/HO/PERS/RTI/2020-07(3) dated 06.07.2020 issued by OMDC;iv) The Office Memorandum dated 17.08.2010 issued by Ministry of Steel, Government of India, New Delhi;M.C.2348/2020 Page 12 of 30M.C.2348/2020 Page 12 of 30v) The Office Memorandum dated 13.04.2011 issued by Ministry of Steel, Government of India, New Delhi;vi) The letter No. 8(4)/2019-BGC dated 06.08.2019 issued by Ministry of Steel, Government of India, New Delhi;vii) The relevant pages of the three years' Annual Reports of the Ministry of Steel, Government of India.M.C.2348/2020 Page 15 of 30 shares on 24.03.2005 was committed at Kolkata as the concerned meeting of the Board of Directors of EIML was held at Kolkata on the said date.The MoU which was signed at New Delhi gave the right to first refusal to the promoters with regard to the safe of shares in EIML as well as stipulated the need for prior consent of other promoters before sale.On 24.03.2005 UIL sold 23.99 lakh shares in EIML to the petitioner no.2 company of which Petitioner No. 1 was for Rs.52 lakhs through fraudulent means without offering it to OMDC and without prior consent of the OMDC.The said sale was approved in board meeting dated 23.05.2005 which was attended by the officials of OMDC who have been arrayed as Accused Nos. 1 and 2 in the present case.As the officers of OMDC neither objected to the persons nor protected the interest of OMDC.Applications are disposed of.M.C. 2348/2020 & Crl.M.C.2348/2020 Page 1 of 30M.C.2348/2020 Page 1 of 30Given the limited nature of the present petition impugning an interim order, the relevant and brief facts of the case, as narrated in the present petition, are given hereunder:j. On 21.11.2016, the Respondent CBI filed Final Report/ Charge Crl.M.C.2348/2020 Page 5 of 30 Sheet under Section 173 Cr.P.C. before the learned CBI Court allegedly disclosing the commission of offence under Section 120-B IPC r/w 406/409/420/467/468/471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 ('PC Act').The Respondent CBI along with the Charge-sheet filed a long list of documents but deliberately did not file the aforesaid documents which categorically prove beyond doubt that the learned CBI Court is devoid of the jurisdiction to entertain the present case since the OMDC was admittedly not a Government Company on the date of alleged offence.p. On 19.10.2019, the Petitioner No.1 had filed an Application under Section 294 of Cr.P.C. before the learned CBI Court seeking to consideration of certain documents at the stage of charge which are necessary for determining the preliminary question of jurisdiction of the learned CBI Court.However, the learned CBI Court vide its order 12.3.2020 directed the IO/HIO to comply with the Order dated 17.02.2020 of this Court and supply the documents to the Petitioners/Accused Persons within two weeks.M.C.2348/2020 Page 10 of 30u. From March, 2020 onwards, in light of the current pandemic COVID-19, all the cases listed before the Courts were adjourned en-bloc.v. The General Manager of OMDC vide its Letter dated 06.07.2020 addressed to the co-accused (Mr. Champak Banerjee) communicated the Order passed in Appeal No. 3/2020 by the Managing Director of OMDC (being 1st Appellate Authority under RTI Act).The said Order has very categorically clarified the status of OMDC at para number (C)(iv) of the Order sheet in very clear terms which is quoted below:"However, for the sake of clarity, it is clarified that OMDC was an 'Indian non-Government Company' upto 19.03.2010 and became a 'Government Company' w.e.f. 19.03.2010."M.C.2348/2020 Page 11 of 30M.C.2348/2020 Page 11 of 30w. In light of denial of the public documents by the Respondent CBI and the subsequent discovery of additional public documents, the Petitioners filed an Application dated 09.11.2020 (registered as IANo.7/2020) (annexed as Annexure P21) before the learned CBI Court seeking exercise of its powers under Section 91 Cr.P.C. to summon the relevant officials for the production of the certain documents necessary for determining the preliminary question of jurisdiction of the learned CBI Court to entertain the present case.The said Application sought production of the following documents:However, the learned CBI Court vide its Order dated 11.11.2020 in IA No. 7/2020 dismissed the said Application of the Petitioners and directed them to positively address arguments on charge on the next date of hearing.Accordingly, present petition deserves to be allowed.M.C.2348/2020 Page 14 of 30M.C.2348/2020 Page 15 of 30The respondent CBI has filed reply to the present petition whereby submitted that the present petition is filed assailing the order dated 11.11.2020 of the ld.CBI Court whereby the application under section 91 of the Cr.P.C. for summoning of documents came to be dismissed with a finding that the said application was made with a view to delay the framing of charge.The court further held that most of the documents that were sought to be summoned were already on record and that documents which would constitute the defence of the accused should not be seen at the stage of charge.The gist of the prosecution case is that on the basis of a complaint filed by one Umesh Chandra on 30.07.2014, an FIR came to be filed on 08.03.2016 against the petitioners and other accused persons.As per the judgement in order for a document to be summoned the following criteria have to be satisfied:M.C.2348/2020 Page 22 of 30Thus in light of the above, it can be seen that the section 91, petition is an obvious attempt on the part of the petitioner to delay the proceedings without any basis and thereby delay justice being served.The objection of the CBI is not an issue of prejudice to the petitioner but rather a question of stage at which the purported defence of the accused can be raised and section 91 has been interpreted consistently not on the test of prejudice but only on the test of right.Accordingly, the present petition deserves to be dismissed.

Sections cited: Section 120B in The Indian Penal Code, Section 471 in The Indian Penal Code, Section 468 in The Indian Penal Code, Section 420 in The Indian Penal Code, Section 409 in The Indian Penal Code, Section 173 in The Indian Penal Code, Section 467 in The Indian Penal Code, Section 406 in The Indian Penal Code