*THE HON’BLE THE CHIEF JUSTICE NISAR AHMAD KAKRU AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR +WRIT APPEAL Nos. 532 & 681 of 2010 % 16-12-2010 # The Director, Central Bureau of Investigation, New Delhi … Appellant Vs. $ M/s. Obulapuram Mining Company Pvt. Ltd., & others … Respondents ! Counsel for the Appellant in WA.No.532 of 2010: Mr. Vivek K.Tankha Addl. Solicitor General, appearing for, Sri. P.Keshava Rao Spl . SC for CBI ! Counsel for the Appellant in WA.No.681 of 2010: Advocate General ^ Counsel for the Respondents in WA.No.532 of 2010: Sri Mukul Rohatgi Sr. Counsel appearing for Sri K.Raghava Charyulu, The Advocate General Sri Ponnam Ashok Goud Asst. Solicitor General ^ Counsel for the Respondents in WA.No.681 of 2010: Sri C.V.Nagesh Sr. Counsel appearing for Sri K.Raghava Charyulu, Sri Ponnam Ashok Goud Asst. Solicitor General Mr. Vivek K.Tankha Addl. Solicitor General, appearing for, Sri. P.Keshava Rao Spl. SC for CBI <GIST >HEAD NOTE: ? CITATIONS THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL Nos.532 and 681 of 2010 JUDGMENT:(Per the Hon’ble the Chief Justice Shri Nisar Ahmad Kakru) 1. Pilferage of minerals from Bellary Reserve Forest of Anantapur District, Andhra Pradesh, allegedly by M/s. Obulapuram Mining Company Private Limited and M/s. Bellary Iron Ore Private Limited, with the connivance of the Government servants, having come to the notice of the Government of Andhra Pradesh, consequently, accord of consent by the Government of Andhra Pradesh vide G.O.Ms.No.467, Home (SC.A) Department, dated 17.11.2009, under Section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act XXV of 1946), authorizing Delhi Special Police to exercise the powers and jurisdiction in the area relating to boundary disputes and illegal mining activities. The said G.O. reads: “Under Section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act XXV of 1946), the Government of Andhra Pradesh hereby accord consent to all the members of Delhi Police Establishment to exercise the powers and jurisdiction of the members of the Delhi Special Police Establishment in the whole of the State of Andhra Pradesh regarding boundary disputes and illegal mining activities of M/s. Obulapuram Mining Company Private Limited and M/s. Bellary Iron Ore Private Limited in the Bellary Reserve Forest of Anantapur District, Andhra Pradesh and other related matters.” Pursuant to the above said notification, the Central Government extended the powers and jurisdiction of the members of the Delhi Police Establishment to the whole of the State of Andhra Pradesh vide Notification No.228/61/2009-AVD-II, dated 1.12.2009 which may be noticed: “(TO BE PUBLISHED IN THE GAZETTE OF INDIA IN PART-II SECTION 3(II)) No.228/61/2009-AVD-II Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training **** Dated:1st December, 2009 NOTIFICATION S.O………….in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police (Establishment) Act, 1946 (Act No.25 of 1946) the Central Government with the consent of the State Government of Andhra Pradesh, Home (SC.A) Department vide Notification G.O.Ms.No.467 dated 17th November, 2009, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Andhra Pradesh for enquiry/investigation regarding boundary disputes, illegal mining activities and other related offences of M/s. Obulapuram Mining Company Private Limited and M/s. Bellary Iron Ore Private Limited in the Bellary Reserve Forest of Anantapur District (Andhra Pradesh) and attempt, abetments, and conspiracies in relation to or in connection with the offences relating to above mentioned illegal activities and any other offence (s), committed in the course of the same transaction arising out of the same facts. (Chandra Prakash) Under Secretary to the Govt. of India” 2 . Having been empowered to conduct the investigation, the appellant - Central Bureau of Investigation (CBI for short) registered a criminal case on 7.12.2009, vide RC. No.17(A)/2009, under Sections 120- B, 420, 379, 411, 427, 447 of the Indian Penal Code, Section 21 read with Sections 4(1), 4(1) (A) & 23 of the Mines and Minerals (Regulation & Development) Act, 1957 (“MMDR Act” for short), Section 26 of the Indian Forest Act, 1927, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, against M/s. Obulapuram Mining Company Pvt. Ltd. and M/s. Bellary Iron Ore Pvt. Ltd. besides, unknown public servants. Respondent No.1 challenged the G.O. and/notification aforementioned by invocation of extraordinary writ jurisdiction of this Court. WPMP No.35318 seeking interim relief was also filed which begot it a direction dated 14-12- 2009, staying further proceedings and the investigation which was sought to be vacated by the appellants through WVMPs 68 and 82 of 2010 but of no avail to them in view of grant of WPMP No.35318 by the writ court, inter alia, fallout being, stay of investigation until disposal of the writ petition, therefore, two Writ Appeals 532 and 681 of 2010 by CBI and the State of Andhra Pradesh respectively which were posted for hearing on 8.12.2010. Mr. Tankha and Mr. Murthy, learned Senior Counsel for the appellants and Mr. Mukul Rohatgi, learned Senior Counsel for respondent No.1, were heard on the same day, as also learned Senior Counsel Mr. C.V. Nagesh, who was heard in part because of his preoccupation. Heard him today. Heard Mr. Tankha, learned Additional Solicitor General and Mr. Murthy, learned Advocate General in rebuttal. We have also heard Mr. K. Raghava Charyulu, associate of Mr. Mukul Rohatgi, at his request. 3. Mr. Vivek K. Tankha, learned Additional Solicitor General, appearing for the CBI, contended that the interim direction is uncalled for because it has not only delayed the investigation but is misused by the respondents to the extent of destruction of the most relevant evidence and coercion of the prosecution witnesses. According to him, there was no justification for the writ court to prevent the CBI from discharging their statutory obligations and there being involvement of the government servants too, a comprehensive investigation is imperative and pleaded vehemently for setting aside the impugned order to enable the CBI to go ahead with the investigation. Toeing the line, Mr. D.V. Seetharam Murthy, learned Advocate General, by reference to the record, endeavored to justify the decision of the Government to entrust the investigation to the CBI. 4. In response to the argument of Mr. Tankha and Mr. Murthy, Mr Rohgati contended that it is inappropriate for this Court to deal with these appeals because the Supreme Court is seized of the boundary dispute. The contention according to Mr. Tankha is advanced simply to be rejected because the Supreme Court has not stayed the proceedings in this case. To appreciate the contention of Mr. Rohgati, it is apt to notice as to what awaits disposal by the apex Court and it is the judgment dated 26.2.2010, passed by a Division Bench of this Court in Writ Petitions 25910 and 26083 of 2009, adjudicating upon G.O.Rt.No.723, Industries & Commerce (M.III) Department dated 25.11.2009 which had suspended the operation of sanctions, including transportation of already mined material from six mines, permitted vide G.O.Ms.No.102, dated 11.02.2000, G.O.Ms.No.156, dated 08-03-2001, G.O. Ms. No.80, dated 18-02-2002, G.O.Ms.No.172, dated 10.7.2006, G.O.Ms.No.151, dated 18-6-2007 and G.O.Ms.No.152, dated 18.6.2007. Whereas, subject matter of the writ petition, out of which the writ appeals before us arise, is G.O.Ms.No.467, Home (SC.A) Department, dated 17.11.2009 envisaging consent of the Andhra Pradesh Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act XXV of 1946) for investigation and the Notification issued by the Central Government vide No.228/61/2009-AVD-II, dated 1st December, 2009, authorizing the Delhi Special Police Establishment to inquire into the boundary dispute of respondent M/s. Obulapuram Mining Company Pvt. Ltd. and M/s. Bellary Iron Ore Pvt. Ltd., whose mining lease areas are abutting each other. These orders also provide for investigation into illegal mining. Apparently, the controversy in the judgment impugned before the Supreme Court and the matter on hand are quite different, yet as a matter of abundant caution, we direct the CBI not to embark upon the dispute relating to the boundary, until further orders from the Supreme Court. Regarding investigation into the illegal mining activities and other related matters, we find nothing in the direction of the Supreme Court which would indicate restriction on investigation by the CBI. In that view of the matter, we could not persuade ourselves to concede to the contention of Mr. Mukul Rohatgi to defer hearing of the appeals till disposal of the Special Leave Petition by the apex Court. 5. Next it is contended by Mr. Mukul Rohatgi that the impugned notifications, empowering the CBI to investigate, were issued in a hot haste which according to Mr. Murthy was not a hasty action but with speed and Mr. Tankha contends that the contention of Mr. Rohatgi is not countenanced in law because an accused is not entitled to an opportunity of hearing before entrusting investigation to a particular organization, therefore, time factor is irrelevant and hot haste cannot be alleged even. There being substance in the argument of Mr. Murthy and Mr. Tankha, we accept it and for a few more reasons. Registration of the first information report (FIR), commencement of investigation and entrustment of investigation to any of the statutory organizations do not attract the principles of natural justice, therefore, there is no scope for an argument on the ground of haste made in authorizing the CBI to investigate and if respondents have really entrusted the investigation speedily, which is warranted in the given situation and in view of gravity of the offences, it would mean adherence to fair play, backed by good conscience, an instance of administrative efficiency. Thus we refuse to infer anything contrary to fairness. 6. Mr. Mukul Rohatgi also urged absence of reasons in the notifications entrusting investigation to the CBI as a ground of challenge but no law is cited which would require the Central and State Governments to specify the reasons in a notification itself, thus, devoid of legal foundation. It is also contended that the impugned notifications had emanated from the advice of the High Level Committee which is responded by the learned Advocate General with a statement of fact supported by counter affidavit, that the Chief Minister had taken the decision after due deliberation and on the strength of objective application of mind founded on the material, evidencing illegal mining of the minerals. No doubt, investigation into cognizable offences is the primary responsibility of the State Police, to which respondent No.1 is not averse and grievance in essence is registered because of entrustment of the investigation to CBI, but we find no fault with it, for, investigation would now be in the hands of an agency which is said to have, on its establishment, officers having expertise in the field concerned. 7. The learned Senior Counsel Mr. Rohatgi referred to the report of the Committee constituted by the Supreme Court and filed in the Supreme Court which, according to him, has given a clean chit to his client. He also referred to the Survey Committee constituted by the Supreme Court to contend that as per its report, there is a deficiency in the area leased to the respondent. Contentions do not impress us because it is for the Supreme Court to appreciate the said reports, and expression of any opinion by us, we are afraid, may amount to transgression of limits on our part. 8. Mr. Mukul Rohatgi also questioned the veracity of Mr. V. Anjaneya, a star witness of the prosecution, on the ground that the said witness is facing many allegations which stand narrated in the FIR filed against him by the respondent-Company and the said witness has now filed an affidavit before the Supreme Court stating that his affidavit containing allegations against the Company was out of coercion he was subjected to and Mr. Mukul Rohatgi wishes it to be read as a part of unfair play of the State and CBI but Mr. Tankha defines it to be an admitted case of tampering with the prosecution’s evidence. Mr. Mukul Rohatgi also contended that the FIR is virtually based on the evidence of this witness which is untenable because he is a disgruntled employee of the accused-respondent Company. How facts go about this contention do not call for any opinion because, it is for the criminal court to look into, and if the accused respondent brings the said witness within the definition of an interested witness, lacking moral fiber, a need may or may not arise in law for corroboration of his statement, but it is absolutely wrong to say that his evidence cannot form basis of the FIR. Nevertheless it is for the criminal court of the competent of jurisdiction that gets seized of the matter to take a view one way or the other. 9. The only argument Mr. C.V. Nagesh, learned Senior Advocate, appearing for respondent No.1 - Company in Writ Appeal No.681 of 2010 advanced before us is, that the CBI lacks jurisdiction to investigate the offence under Section 22 of the MMDR Act, because cognizance of an offence under Section 22 of the MMDR Act by the Court is impermissible except upon a written complaint by an authorized officer of the State or Central Government. To appreciate the contention, we would like to extract Section 22 of the MMDR Act, which reads as under: “22. Cognizance of offences: No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” 10. A bare perusal of Section 22 of the MMDR Act unveils that the Court cannot take cognizance of any offence punishable under the provisions of the Act or any Rules made thereunder unless a complaint in writing is made by a person authorized by the Central Government or the State Government. Should this question detain us, our quick answer is in the negative, because the material furnished to the CBI does not disclose an offence under the MMDR Act only, but under different sections of other enactments as well, namely, Sections 120-B, 420, 379, 411, 427, 447 of the Indian Penal Code, Section 26 of the Indian Forest Act, 1927, and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, which are admittedly cognizable offences and do not attract application of Section 22 of the MMDR Act, yet we would like to address the challenge thrown to the competency of the CBI to investigate. To bring home the point, Mr. C.V. Nagesh has referred to judicial decisions, rendered in exercise of inherent/criminal jurisdiction by the High Courts, disagreeing with cognizance taken, either because of absence of complaint or want of authorization but none of the two eventualities is attracted in this case, obviously reference thereto is totally irrelevant. Mr. Vivek K. Tankha, refuted the contention by reference to a catena of judgments of the Supreme Court and has also referred to Notification No.228/70/2008-AVD-II, dated 16.10.2008, to contend that in exercise of powers under Section 3 of the Delhi Special Police Establishment Act 1946, the Central Government has specified the offences under the MMDR Act for the purposes of investigation by Delhi Special Police Establishment. No support from the judgments or notification needs to be pressed into service, for, language of Section 22 of the MMDR Act is very clear that it prohibits cognizance of an offence without a complaint by an authorized person and not the commencement of investigation. That being so, we fail to understand as to on what basis Mr. C.V. Nagesh expects us to stretch the ambit of the Section, to bring investigation within its purview, losing sight of the fact that cognizance of a complaint is a post investigation event, a stage which is yet to arrive. Nonetheless, if the CBI breaches the mandate of the provision of law, in such a situation the respondent – Company is free to invoke appropriate remedy before the competent court of jurisdiction. Suffice it to say, it is an argument sought to be developed on a mere apprehension, bereft of any logic. 11. We would now like to examine the case of respondent No.1 on the touchstone of essential conditions which are sine qua non for grant of interim relief. To begin with, let us notice as to what has weighed with the writ court. To achieve the objective, we have gone through the judgment, perusal whereof reveals that it is the direction of the Supreme Court providing for determination/demarcation of the boundaries, that has prevailed on it in returning a finding of prima facie case to the favour of the writ petitioner – respondent No.1. We have already pointed out that the dispute before the Supreme Court is different. Even then, we are of the considered opinion that it is the domain of the Supreme Court to take a view as to whether boundary dispute can be looked into by the CBI in terms of the notifications impugned in the writ petition but regarding investigation into illegal mining, the direction of the Supreme Court does not speak of any restraint, therefore, it is not correct to read the direction of the Supreme Court in favour of the writ petitioner for purposes of prima facie case and the writ court has found no other material in support of the petitioner’s case. On the contrary, it is the positive case of the appellants that the total capacity of the pits and surface area mined would not produce even 40% of iron ore already transported weighing 29.32 lakhs M. Tons. Reckoned as such total capacity of the mined pits and surface area would come to 12 lakhs M. Tons approximately. To simplify the problem, total capacity of the pits and surface area mined would yield at the most 12 lakhs M. Tons but respondent No.1 has removed 29.32 lakhs M. Tons, suggesting theft of about 18 lakhs M. Tons, apparently beyond the capacity. The appellants did not find any evidence of active mining in the area leased to respondent No.1, yet a quantity of 29.32 lakhs M. Tons is shown to have been transported. It is also averred that variation to the advantage of respondent No.1 was also found on comparison between the quantities exported and permitted by the Mines and Geology Department and other agencies like IBM. Thus, the appellants believe that respondent No.1 is carrying out mining activities elsewhere but mineral is shown to have been extracted from the leased areas, therefore, illegal mining amounting to theft which has nothing to do with the boundary dispute, hence, notification for investigation. The State having noticed bungling, consequently issuance of Notifications authorizing CBI, specially and specifically to investigate, and same being a statutory functionary, cannot be divested of its power to investigate, on mere asking. Examining as such, the respondents have no case, much less prima facie to sustain the stay of investigation. 12. Coming to the balance of convenience and irreparable loss, sight cannot be lost of the settled legal position that investigation into cognizable offences is a statutory duty of the State and when a crime is alleged to have been committed, investigation becomes imperative to find out the actual facts, therefore, it would not be permissible to prevent an investigating agency from discharging its statutory obligation, that too casually. In the given facts of the case, we are of the considered opinion that it is in public interest to prosecute those who have committed the crime and the balance of convenience has to favour the investigation. Regarding irreparable loss, a very important aspect which has gone unnoticed, is the plight of the prosecution witness namely, V. Anjaneya, who is on affidavit to say that he was threatened with dire consequences in case of his failure to support respondent No.1, and was forced to commit suicide which proved abortive by timely intervention. Had his attempt materialized, a very important piece of evidence would have been rendered non-available. No wonder that continuation of the stay of investigation may result in such like occurrences. In addition to that, is the fading memory of the witnesses due to stay of investigation, thus, likelihood of irreparable loss to the State and the society. 13. On top of all, conservation of mineral resources being the primary responsibility of the State, investigation into illegal mining was called for, and going by the case set out by the parties, it is manifest that the conflict is between the public interest and individual interest. Minerals being the nation’s natural wealth, the guiding principle has to be the public interest and not the commercial or individual interest. Testing on that principle, stay of investigation, granted at the very threshold of the lis, is ex facie unjustifiable. We may hasten to add that our findings are prima facie and not final and the writ court shall be free to arrive at its own conclusions in the main writ petition uninfluenced by our observations. 14. For what is stated hereinabove, writ appeals succeed and impugned orders are set aside but inquiry/investigation into boundary dispute shall have to await orders of the Supreme Court as indicated in paragraph (4) hereinabove. No order as to costs. VILAS V. AFZULPURKAR, J. NISAR AHMAD KAKRU, C.J. 16th December, 2010. Note: LR COPY BE MARKED. ARS