K.V.N. Govindaraj vs Central Bureau Of Investigation

This petition is filed to quash the proceedings in C.C.No.412/2020 pending before JMFC, Ankola for the offences punishable under Section 21 read with Section 4(1), 4(1)(A), Section 23 of The Mines and Minerals (Development and Regulation) Act, 1957 ('Act of 1957') and Section 24 of Karnataka Forest Act, 1963 ('Act of 1963').

This petition is filed by accused No.5. The private complaint is filed before the Judicial Magistrate First Class Ankola in PCR No.131/2020. After taking cognizance, the same has been renumbered as C.C.No.412/2020.

The order taking cognizance and issuing the process reads as under:

Learned Senior counsel appearing for the petitioner would submit that the order taking cognizance does not reflect application of mind. Accused/petitioner is admittedly residing outside the jurisdiction of the Court which took cognizance. The procedure contemplated under Section 202 of Code of Criminal Procedure, 1973 ('Code, 1973') is not followed and further enquiry has not been held before issuing process after taking cognizance. On these two aspects, learned Senior counsel would submit that the impugned order has to be set aside in limine.

In addition, learned Senior counsel would also urge that the offences carry a maximum imprisonment of three years and fine. And that being the position, the complaint filed on 12.10.2020 is barred by limitation as the alleged incidents have taken place between 01.01.2009 and 31.05.2010.

In the alternative, learned senior counsel would urge that assuming that the complaint was filed pursuant to the order dated 16.09.2013 passed by the Apex Court in W.P.No.562/2009, then also the complaint ought to have been filed within three years from the date of the order dated 16.09.2013. However, the complaint is filed 7 years later, and same is barred by limitation.

It is also urged by the learned senior counsel that the application is not filed for condonation of delay and all these aspects have not been taken into consideration by the learned Magistrate.

Learned counsel for the respondent CBI would urge that the primary investigation into the offences was conducted by the CBI and thereafter the report is submitted to the Apex Court in W.P.No.562/2009. Later, vide order dated 16.09.2013 the Apex Court permitted CBI to register the criminal case and accordingly the criminal case was registered and the investigation was carried out.

Initially a criminal case was filed and FIR was registered against M/s Greentex Mining Industries Limited, Bengaluru and its Directors. Thereafter, the investigation was carried out and during investigation it was revealed that several fictitious Companies have been formed and through those fictitious Companies, fake records have been created and iron ores illegally excavated have been illegally transported and exported.

Learned counsel for the respondent would also urge that it is only during the investigation, the CBI came to know about the involvement of the petitioner and other persons operating under the name of fictitious Companies.

The charge sheet was filed on 01.10.2020 (as per the endorsement on the charge sheet in C.C.No.408/2020 and 410/2020 by the JMFC, Ankola) in respect of several offences under the Indian Penal Code and cases have been registered before the JMFC in C.C.No.408 and 410 of 2020. However, the present complaint is filed for the offences under the Act of 1957 as the said Act mandates a private complaint, before the Court and same is filed on 12.10.2020 and same is within the prescribed period of limitation from the date of knowledge of the offence by the accused.

Learned counsel for the respondent would also submit that the offences alleged carry imprisonment of 5 years, as such, the complaint is in time, and Section 468 of the Cr.P.C. read with Section 467 would apply only in those cases where the imprisonment is for 3 years or less than 3 years.

Learned Senior counsel for the petitioner by way of reply would submit that the offences are allegedly committed between the period from 01.01.2009 to 31.05.2010 and the provisions of the Act of 1957, prevailing then prescribed a maximum punishment of 2 years imprisonment and fine and not 5 years.

It is the submission of the learned Senior counsel that the Act of 1957 was amended with effect from 12.01.2015 and the punishment is enhanced to 5 years with effect from 12.01.2015 and that being the position, the respondent cannot contend that the Section 468 of the Code, 1973 or the limitation has no application.

The Court has considered the contentions raised at the Bar and perused the records.

The order taking cognizance as noted above, reveals that the Police Inspector, CBI has filed the complaint under the provisions of Act of 1957. It also reveals that the Court has perused the complaint averments and the documents produced along with the complaint.

The Trial Court has noticed that the complaint is filed in discharge of the official duty and the Court took a view that there is no need to examine the complainant and the witnesses. Accordingly, the Court has taken cognizance against accused No.1 to 6.

The order also reveals that the cognizance is taken for the offence under Section 21(1) read with Section 4(1), and 4(1)(A) and Section 23 of the Act of 1957. The order does not disclose that any enquiry is held under Section 202 of the Code, 1973, though the accused is residing outside the jurisdiction of the Court which took the cognizance.

It is a settled principle of law that when cognizance is taken based on the Police report, the Court has to go through the records and pass an order of taking cognizance and that order should reflect application of mind.

The settled position of law is that order taking cognizance need not be elaborate and the Court at that stage is not expected to consider whether materials are sufficient to convict the accused. All that is required is prima facie consideration of the materials on record and satisfaction to proceed further against the accused.

In a proceeding initiated based on a private complaint, consideration is slightly different from the consideration to take cognizance based on the Police report. In case of private complaint, depending on the nature of the allegation, the scrutiny required may be slightly higher than what is required in a case based on the Police report.

In the instant case, as can be noticed from the order, the Court does not record prima facie satisfaction for taking cognizance. Thus, the order taking cognizance without application of mind is an error. However, that by itself is not a ground to set aside the order. If there are materials to support the order taking cognizance, this Court can supplement the reasons as held in Criminal Petition No.101445/2022 c/w Criminal Petition 101448/2022 against the same petitioner involving offences under the provisions of Indian Penal Code, 1860.

However, the petitioner also has raised a contention relating to limitation. As can be noticed from the contentions raised, the offence carried 2 years imprisonment and fine when the alleged offence was committed between 2009 and 2010. Thus, the respondent- State cannot contend that the Section 468 of the Code, 1973 does not apply on the ground that the punishment prescribed is 5 years when the cognizance was taken. The settled position of law is the penal consequence cannot have a retrospective application. The law was amended with effect from 12.01.2015 enhancing the punishment for the offence under Section 21(1) of Act, 1957. Thus, the Court has to apply the law that was prevailing in the year 2009 and 2010 when the alleged offence took place.

Since the alleged offences were committed between 2009 and 2010, as per the law prevailing then, the maximum punishment was 2 years imprisonment and fine. This aspect of the matter has not been considered by the Trial Court.

However, what is required to be considered is, whether the complaint is in time or barred under Sections 467, 468 and 469 of the Code, 1973. Sections 467, 468 and 469 of the Code, 1973, read as under:

From the reading of Section 467, it is evident that the period of limitation for taking cognizance for an offence is, the period prescribed in Section 468.

Section 468(2) provides 3 different periods of limitation, based on the offences punishable. The offence is punishable only with fine, the limitation is 6 months. If the offence is punishable with imprisonment not exceeding 1 year, the limitation is 1 year. If the offence is punishable with imprisonment exceeding 1 year but not exceeding 3 years, the limitation is 3 years.

Section 469 provides for commencement of period of limitation. Under the said provision, the limitation shall commence;

The Apex Court in The State of Kerala & Anr. vs. M/s. Panacea Biotec Ltd.^{11.AIR 2026 SC 1284} had an occasion to deal with the question of limitation with reference to Sections 468 and 469 of Code, 1973. The Apex Court has held that under Section 469(1)(c) the limitation would begin to run from the date when the identity of the accused is known to the competent authority.

Thus, it is evident that the commencement of limitation is not necessarily the date of commission of the offence, and under the Code, 1973. The commencement of period of limitation is dependent on the dates referred to in Section 469(1)(a)(b)(c) of the Code, 1973.

From the contents of the complaint it appears that the involvement of the petitioner came to the light of the Police only during the course of investigation. Though there is no specific averment in the complaint as to when the complainant came to know about the involvement of the accused, the Court is of the view that at this juncture, it is not possible to take a call, that the complaint is time barred. To take a call that the complaint is time barred, the Court must be in a position to say that the complainant or the authorised officer had the knowledge of the offence on a particular date which would be the starting point of limitation. At this juncture, the Court is not in a position to take a view that the complaint is time barred or the complaint is in time.

Hence, there has to be a further inquiry by the Court taking cognizance as to whether the complaint is filed within 3 years from the knowledge as contemplated under Sections 468(c) and 469(1)(c) of the Code, 1973.

In addition, it is also urged on behalf of the petitioner that the Court ought to have held an enquiry under Section 202 of the Code, 1973, before issuing process. The legal position in this regard has been settled by the Apex Court in M/s. Panacea Biotec Ltd. supra.

The object of Section 202 of the Code, 1973, is to ensure that an accused residing beyond the territorial jurisdiction of the Court taking cognizance is not subjected to harassment in the form of frivolous complaints. In M/s. Panacea Biotec Ltd supra., the Apex Court has held that where a complaint is made by a public servant in discharge of his official duties, the further enquiry before issuing process as contemplated under Section 202 of the Code, 1973, is not required.

Hence, the impugned order is not vitiated by non-compliance of the procedure under Section 202 of the Code, 1973. However, as already noted the impugned order suffers from other errors.

This being the position, the impugned order has to be set aside and the matter has to be remitted to the Trial Court for fresh consideration.

The Trial Court shall hold an enquiry as to the date of the complainant’s knowledge about the involvement of the accused No.5/petitioner in the commission of alleged offence and based on the materials placed during the course of such enquiry, the Court has to pass appropriate orders.

It is to be borne in mind that the period of limitation is 3 years as the punishment that can be imposed for the offence alleged is 2 years imprisonment and fine and not 5 years, as the amended provision of the Act, 1957 does not apply to the offences alleged.

If the Court taking cognizance finds that there are materials to take cognizance of the offences and records satisfaction with due application of mind, and that the complaint is within 3 years from the knowledge of the involvement of accused No.5, then the matter is required to be committed to the jurisdictional Sessions Court in view of the mandate of Sections 30B and 30C of the Act, 1957.

In case the Court taking cognizance finds that the complainant had the knowledge about the involvement of accused No.5, three years prior filing of the complaint, then complaint probably would be time barred and the Court has to ascertain whether any case is made out to condone the delay under Section 473 of the Code, 1973.

As to the commencement of limitation and about the knowledge of alleged involvement of the petitioner in the commission of the offences, this Court has not expressed any opinion and same has to be decided based on materials to be placed during the course of further enquiry.