Holding

The Special Court cannot take cognizance of MMDR offences without a committal order, but the irregular cognizance order does not vitiate the proceedings as no failure of justice is demonstrated under Section 465 CrPC.

Summary

The appellants were accused of illegally purchasing, transporting and exporting iron ore without the requisite mining dispatch permits, violating the Mines and Mineral (Development and Regulation) Act, 1957 and related environmental statutes. A Special Court, which is a Sessions Court, took cognizance of the offences on 30 December 2015 without a prior committal order from a Magistrate, contrary to Section 193 of the Code of Criminal Procedure (CrPC). The appellants challenged the cognizance order, arguing that the Special Court lacked jurisdiction, that the order showed a lack of application of mind, and that the joint trial of IPC offences with MMDR offences was impermissible. The Supreme Court held that while the Special Court did not have the power to take cognizance without committal, the irregularity is covered by Section 465 CrPC and does not constitute a failure of justice, especially given the delay in raising the objection and the nature of the offences. Consequently, the Court dismissed the appeals, upholding the continuation of the criminal proceedings.

Issues considered

The Special Court's power to take cognizance of offences under the MMDR Act without a committal order under Section 209 CrPC.
Whether Section 465 CrPC applies to an irregular cognizance order and if such irregularity amounts to a failure of justice.
Whether cognizance must be taken of the offence rather than the offender and the effect of wording in the cognizance order.
The permissibility of a joint trial of IPC offences with MMDR offences under Section 220 CrPC.
Compliance with Section 22 of the MMDR Act regarding a complaint by an authorised person.
The applicability of vicarious liability under Section 23 of the MMDR Act to the managing director.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 173, s. 190, s. 193, s. 200, s. 209, s. 460, s. 461, s. 465
Indian Penal Code, 1860s. 120B, s. 409, s. 420
Karnataka Forest Rules, 1969s. 144, s. 165
Mines and Mineral (Development and Regulation) Act, 1957s. 21, s. 22, s. 23, s. 30B, s. 30C, s. 4(1), s. 4(1A)

Subjects

cognizancespecial courtSection 193 CrPCSection 465 CrPCillegal miningMMDR Actjoint trialvicarious liabilityenvironmental crime

Judgment

[2021] 11 S.C.R. 985 985

PRADEEP S. WODEYAR A
v.
THE STATE OF KARNATAKA
(Criminal Appeal No. 1288 of 2021
NOVEMBER 29, 2021 B
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B.V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973 – ss. 193, 209 and 465 –
Mines and Mineral (Development and Regulation) Act, 1957 –
C
Karnataka Forest Rules, 1969 – Special Court’s power to take
cognizance – Allegations of purchasing and selling extracted iron
ore illegally without mining dispatch permits and the payments of
charges to the Mining and Geological Departments and the Forest
Department – FIR registered and a final report u/s. 173 of Cr.P.C.
submitted – Additional City and Civil Sessions Judge and Special D
Judge took cognizance after perusing the final report – Petitions
filed before the High Court u/s.482 Cr.P.C. to quash the criminal
proceedings were dismissed – Before the Supreme Court, the
appellant-accused contended that the Special Court (which is a
Sessions Court) is not empowered to take cognizance of offences
E
without the case being committed to it, in view of s.193 CrPC –
Since the Magistrate did not commit the case to the Special Court
before it took cognizance of the offences in the instant case, it has
been contended that the order taking cognizance is vitiated as it is
without jurisdiction and it has led to failure of justice – Held : The
Special Court does not have, in the absence of a specific provision F
to that effect, the power to take cognizance of an offence under the
MMDR Act without the case being committed to it by the Magistrate
u/s. 209 CrPC – The order of the Special Judge dated 30.12.2015
taking cognizance is therefore irregular – However, the objective
of s.465 is to prevent the delay in the commencement and completion
G
of trial – S.465 CrPC is applicable to interlocutory orders such as
an order taking cognizance and summons order as well – Therefore,
even if the order taking cognizance is irregular, it would not vitiate
the proceedings in view of s.465 CrPC – As fas as failure of justice
is concerned, the cardinal principle that guides s.465(2) CrPC is
that the challenge to an irregular order must be urged at the earliest H
985
986 SUPREME COURT REPORTS [2021] 11 S.C.R.

A – In the instant case, the cognizance order was challenged by the
appellant two years after cognizance was taken – No reason was
given to explain the inordinate delay – Moreover, in view of the
diminished role of the committal court u/s. 209 of the Code of 1973
as compared to the role of the committal court under the erstwhile
Code of 1898, the gradation of irregularity in a cognizance order
B
made in Sections 460 and 461 and the seriousness of the offence,
no failure of justice has been demonstrated.
Code of Criminal Procedure, 1973 – s. 193 – Mines and
Mineral (Development and Regulation) Act, 1957 – Karnataka
Forest Rules, 1969 – Cognizance of the offence and not the offender
C – The Special Judge by an order mentions that cognizance is taken
against the accused – Whether merely because the cognizance order
mentions that cognizance is taken against the ‘accused’, the entire
proceedings would be vitiated – Held : It is a settled principle of
law that cognizance is taken of the offence and not the offender –
D However, the cognizance order indicates that the Special Judge
has perused all the relevant material relating to the case before
cognizance was taken – The change in the form of the order would
not alter its effect – The order taking cognizance inadvertently
mentioned that the Special Judge has taken cognizance against the
accused instead of the offence – This would not vitiate the entire
E proceedings.
Mines and Mineral (Development and Regulation) Act, 1957
– Karnataka Forest Rules, 1969 – Code of Criminal Procedure,
1973 – ss. 193, 220 – Penal Code, 1860 – Cognizance by the Special
Court of the offences under IPC – It was contended that even if the
F Special Judge had the power to take cognizance of the offence, he
could only have taken cognizance of offences under the MMDR
Act and could not have taken cognizance (and conduct trial) of the
offences under the provisions of IPC – Held : Since offences under
IPC are alleged to have been committed in the course of the same
G transaction as the offences under the MMDR Act, the situation is
squarely covered by sub-section (1) of s.220 of CrPC – The Special
Court has the power to take cognizance of offences under MMDR
Act and conduct a joint trial with other offences if permissible u/s.
220 CrPC – There is no express provision in the MMDR Act which
indicates that s.220 CrPC does not apply to proceedings under the
H MMDR Act.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 987

Mines and Mineral (Development and Regulation) Act, 1957 A
– Karnataka Forest Rules, 1969 – Code of Criminal Procedure,
1973 – s. 193 – Cognizance order and non-application of mind –
Allegations of purchasing and selling extracted iron ore illegally
without mining dispatch permits and the payments of charges to the
Mining and Geological Departments and the Forest Department –
B
FIR registered and a final report u/s. 173 of Cr.P.C. submitted –
Additional City and Civil Sessions Judge and Special Judge took
cognizance after perusing the final report – It was contended that
the order of the Special Judge taking cognizance has not sufficiently
demonstrated application of mind to the material placed before him
– Held : The Special Judge, took cognizance on the basis of a C
report submitted u/s. 173 CrPC and not on the basis of a private
complaint – The Special Judge took note of the FIR, the witness
statements, and connected documents before taking cognizance of
the offence – In this backdrop, it would be far-fetched to fault the
order of the Special Judge on the ground that it does not adduce
D
detailed reasons for taking cognizance or that it does not indicate
that an application of mind.
Mines and Mineral (Development and Regulation) Act, 1957
– s.22 – Karnataka Forest Rules, 1969 – Code of Criminal
Procedure, 1973 – Allegations of purchasing and selling extracted
E
iron ore illegally without mining dispatch permits and the payments
of charges to the Mining and Geological Departments and the Forest
Department – FIR registered and a final report u/s. 173 of Cr.P.C.
submitted – Additional City and Civil Sessions Judge and Special
Judge took cognizance after perusing the final report – Appellant
contended that before the Special Court (Sessions Court) took F
cognizance of the offence, no complaint was filed by the authorised
person – Held : A combined reading of the notifications dated 29
May 2014 and 21 January 2014 indicate that the Sub-Inspector of
Lokayukta is an authorized person for the purpose of s.22 of the
MMDR Act – The FIR that was filed to overcome the bar u/s. 22 has
G
been signed by the Sub-Inspector of Lokayukta Police and the
information was given by the SIT – Therefore, the respondent had
complied with s.22 MMDR Act.
Mines and Mineral (Development and Regulation) Act, 1957
– s.23 – Karnataka Forest Rules, 1969 – Code of Criminal
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988 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Procedure, 1973 – Vicarious liability – Allegations of purchasing
and selling extracted iron ore illegally without mining dispatch
permits and the payments of charges to the Mining and Geological
Departments and the Forest Department – FIR registered and a final
report u/s. 173 of Cr.P.C. submitted – Additional City and Civil
Sessions Judge and Special Judge took cognizance after perusing
B
the final report – It was contended that the charge- sheet does not
ascribe any role to A-1 and hence the process initiated against him
must be quashed – Held : The determination of whether the
conditions stipulated in s.23 of the MMDR Act have been fulfilled
is a matter of trial – Moreover, it is evident that the charge sheet, as
C a matter of fact, ascribes a role to A-1 and A-2 for the payment of
transportation – Therefore, there is a prima facie case against A-1,
which is sufficient to arraign him as an accused at this stage.
Dismissing the appeals, the Court
HELD : Special Court’s power to take cognizance
D
1. Section 193 CrPC states that the Sessions Court shall
not take cognizance of an offence as a Court of original jurisdiction
unless the Magistrate commits the case to it. The only exception
is if it is expressly provided otherwise by the Code or the statute.
Neither the Code nor the MMDR Act provide that the Special
E Court could directly take cognizance of the offences. Therefore,
the Sessions Court did not have the authority to take cognizance.
[Para 34][1018-A-B]
Section 465 CrPC

F 2. Section 465 stipulates that the order passed by a Court
of competent jurisdiction shall not be reversed or altered by a
Court of appeal on account of an irregularity of the proceedings
before trial or any inquiry. It is settled law that cognizance is pre-
trial or inquiry stage. Therefore, irregularity of a cognizance order
is covered by the provision. In order to determine if the provision
G applies to pre-trial orders like an irregular cognizance order
or only applies to orders of conviction or acquittal, it is necessary
that the provision is interpreted contextually. [Para 37]
[1019-D-E]
3. It needs to be determined if condoning the irregularity
H of the cognizance order under Section 465 would lead to a failure
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 989

of justice. In considered opinion of this Court, it would not lead A
to a failure of justice for the following reasons :
(i) The diminished role of the committing Court under
Section 209 of the new Code while committing the case to the
Court of Session. Both the decision in Bhooraji as well as the
subsequent decision in Ratiram notice that under the Code of B
1898, the Magistrate had a broad power at the stage of committal
which included the power to examine witnesses and to allow cross-
examination. Such a power is noticeably absent in the provisions
of Section 209 of the CrPC. On the contrary, Section 209 makes
it abundantly clear that when a case is instituted on the basis of a
police report or otherwise and it appears to the Magistrate that C
the offence is triable exclusively by the Court of Sessions, the
Magistrate shall commit the case to the Court of Sessions after
complying with the provisions of Section 207 or Section 208, as
the case may be. The circumstance to which the Magistrate has
to apply their mind is solely whether the offence is triable D
exclusively by the Court of Sessions. Since the committing
Magistrate does not have wide discretionary powers to exercise
at this stage not exercising it would not cause any injustice to the
parties; (ii) Gradation in irregularity of cognizance order under
Sections 460 and 461- Under Sections 460 and 461, the order
taking cognizance based on a police report has been given a E
greater standing as compared to an order taking cognizance based
on information received from any person other than a police officer
or upon the own knowledge of the Magistrate, for the specific
purpose of deciding on the irregularity of the order. The reason
behind the gradation is because in the former case, the Magistrate F
has material based on an investigation by the police to ground
his decision which may be absent when cognizance is taken based
on information by any other person. In this case, cognizance was
taken based on the SIT report. Therefore, the case squarely falls
under Section 190(b) of CrPC which under Section 460, even if
irregular would not vitiate the proceedings; (iii) Objective of the G
MMDR Act : The appellants are accused of the commission of
offences under the MMDR Act involving the export and
transportation of minerals without permit. Offences under the

H
990 SUPREME COURT REPORTS [2021] 11 S.C.R.

A MMDR Act are environmental crimes. These crimes impact upon
society at large. These offences cause a detriment to and affect
the well-being of the entire community. Environmental crime is
not confined within geographical or state limits. The impact of
environmental crime transcends borders and time; (iv) The
Preamble of the Act at the time of its enactment indicated that it
B
is an Act for regulation of mines and the development of minerals.
The ultimate object of the provision is to ensure that violators
are punished by a speedy process of trial before a court duly
constituted in that behalf; and (v) The delay in the commencement
of trial : In the present case, there was considerable delay of two
C years. [Para 44][1023-E-H; 1024-A-G; 1025-H; 1026-B-C]
Cognizance of the offence and not the offender
4. In the factual matrix before this Court, the Special Judge
by an order dated 30 December 2015 referred to all the relevant
material before him, including the FIR and witness statements,
D before taking cognizance. The question that arises is whether
merely because the cognizance order mentions that cognizance
is taken against the accused, the entire proceedings would be
vitiated. The order taking cognizance inadvertently mentioned
that the Special Judge has taken cognizance against the accused
E instead of the offence. This would not vitiate the entire
proceedings, particularly where material information on the
commission of the offence had been brought to the notice of and
had been perused by the Special Judge. [Para 52] [1031-G-H;
1032-A-B]

F Cognizance by the Special Court of offences under the IPC
5. Section 409 IPC deals with the offence of Criminal breach
of trust by a public servant, banker, or agent, while Section 420
IPC deals with cheating. Since both these offences are alleged to
have been committed in the course of the same transaction as
G the offences under the MMDR Act, the situation is squarely
covered by sub-section (1) of Section 220 of CrPC. It now needs
to be determined if Section 220 CrPC can be applied to
proceedings before the Special Court constituted under the
MMDR Act. [Para 58][1036-A-B]

H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 991

6. Section 4(1) CrPC states that all offences under the IPC A
shall be investigated and tried according to the provisions
contained in the CrPC. Section 4(2) states that all offences under
any other law shall be investigated and tried according to the
same provisions, subject to any other enactment that regulates
the manner of investigation and trial. Section 5 states that nothing
B
in the Code shall affect any special law that confers power, and
jurisdiction, unless there is a specific provision to the contrary.
Section 30C of the MMDR Act stipulates that unless otherwise
provided by the Act, the CrPC shall apply to the proceedings
before the Special Court. Therefore, on a combined reading of
Sections 4 and 5 of CrPC along with Section 30C of the MMDR C
Act, it is apparent that the procedure prescribed under the Code
shall be applicable to proceedings before the Special Court unless
the MMDR Act provides anything to the contrary. These
provisions incorporate the principle of express repeal – i.e.,
unless any provision of the CrPC is expressly repealed by the
D
provisions of the MMDR Act, the procedure prescribed under
the CrPC would apply to the proceedings before the Special Court.
Since there is no express provision that excludes the application
of Section 220 CrPC, it needs to be examined if the MMDR Act
has by necessary implication excluded the application of Section
220 CrPC. [Paras 59, 60 and 62][1036-C-D, F-H; 1037-C-D] E
7. The Judicial Magistrate First Class is invested with the
authority to try offences under Sections 409 and 420 IPC. On the
other hand, the Sessions Judge is appointed as a Special Judge
for the purposes of the MMDR Act. If the offences under the
MMDR Act and the IPC are tried together by the Special Judge, F
there arises no anomaly, for it is not a case where a judge placed
lower in the hierarchy has been artificially vested with the power
to try the offences under both the MMDR Act and the Code.
Additionally, if the offences are tried separately by different fora
though they arise out of the same transaction, there would be a
multiplicity of proceedings and wastage of judicial time, and may G
result in contradictory judgments. It is a settled principle of law
that a construction that permits hardship, inconvenience,
injustice, absurdity and anomaly must be avoided. Section 30B of

H
992 SUPREME COURT REPORTS [2021] 11 S.C.R.

A the MMDR Act and Section 220 CrPC can be harmoniously
construed and such a construction furthers justice. Therefore,
Section 30B cannot be held to impliedly repeal the application of
Section 220 CrPC to the proceedings before the Special Court.
[Para 67][1040-G-H; 1041-A-B]
B Cognizance order and non-application of mind
8. The Special Judge, it must be noted, took cognizance on
the basis of a report submitted under Section 173 CrPC and not
on the basis of a private complaint. Therefore, the case is squarely
covered by the decision in Afroz Mohammed Hasanfatta. The
C Special Judge took note of the FIR, the witness statements, and
connected documents before taking cognizance of the offence.
In this backdrop, it would be far-fetched to fault the order of the
Special Judge on the ground that it does not adduce detailed
reasons for taking cognizance or that it does not indicate that an
application of mind. In the facts of this case, therefore, the order
D taking cognizance is not erroneous. [Para 75][1047-E-G]
‘Authorised person’ and Section 22 of MMDR Act
9. Section 22 of the MMDR Act stipulates that no Court
shall take cognizance of any offence punishable under this Act or
E Rules, except upon a complaint made in writing by a person
authorised on that behalf by the Central or the State Government.
It has been contended by the appellant that before the
Special Court (Sessions Court) took cognizance of the offence,
no complaint was filed by the authorised person. [Para 76]
[1047-G-H; 1048-A]
F
10. The Government of Karnataka issued a notification on
29 May 2014 declaring that the Office of the Inspector General
of Police, Special Investigation Team, Karnataka Lokayukta shall
be a police station for the purpose of Section 2(s) and shall have
jurisdiction throughout the State of Karnataka for offences related
G to the illegal mining of minerals. The FIR was filed by the SIT,
Lokayukta pursuant to the Order of this Court dated 16
September 2013 and was signed by the Sub-inspector of Police,
Karnataka Lokayukta. On a reading of the notification dated 29
May 2014, it is evident that the SIT has the jurisdiction throughout
Karnataka in relation to mining offences. S.No. 13 of the
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 993

Notification dated 21 January 2014 authorizes the Sub- inspector A
of Police‘ within its jurisdiction for the purpose of Section 22 of
the MMDR Act. Therefore, on a combined reading of both the
notifications, it is clear as day light that the complaint filed by SIT
and signed by the Sub-Inspector of Police has complied with
Section 22 of the MMDR Act. [Para 80][1052-H; 1053-A-C]
B
Vicarious liability and Section 23 of MMDR Act
11. A-1 submitted that the charge-sheet does not ascribe
any role to A-1 and hence the process initiated against him must
be quashed. Section 23(1) of the MMDR Act stipulates that where
the offence has been committed by a company, every person who C
at the time of the commission of the offence was in-charge of and
responsible for the conduct of business shall be deemed to be
guilty of the offence. The proviso stipulates that nothing contained
in sub-section (1) shall render such a person liable to punishment,
if he proves that the offence was committed without his knowledge
or that he exercised all due diligence of preventing the D
commission of the offence. [Para 82][1054-E-F]
12. The test to determine if the Managing Director must
be charged for the offence committed by the Company is to
determine if the conditions in Section 23 of the MMDR Act have
been fulfilled i.e., whether the individual was in-charge of and E
responsible for the affairs of the company during the commission
of the offence. In view of the above decisions, the submissions
which has been urged on behalf of the appellant cannot be acceded
to. The determination of whether the conditions stipulated in
Section 23 of the MMDR Act have been fulfilled is a matter of F
trial. Moreover, it is evident that the charge sheet, as a matter of
fact, ascribes a role to A-1 and A-2 for the payment of
transportation. Therefore, there is a prima facie case against A-
1, which is sufficient to arraign him as an accused at this stage.
[Para 84][1056-C-E]
G
13. The findings of the Court are summarised as below:
(i) The Special Court does not have, in the absence of a
specific provision to that effect, the power to take cognizance of
an offence under the MMDR Act without the case being
H
994 SUPREME COURT REPORTS [2021] 11 S.C.R.

A committed to it by the Magistrate under Section 209 CrPC. The
order of the Special Judge dated 30 December 2015 taking
cognizance is therefore irregular; (ii) The objective of Section
465 is to prevent the delay in the commencement and completion
of trial. Section 465 CrPC is applicable to interlocutory orders
such as an order taking cognizance and summons order as well.
B
Therefore, even if the order taking cognizance is irregular, it
would not vitiate the proceedings in view of Section 465 CrPC;
(iii) The decision in Gangula Ashok was distinguished in Rattiram
based on the stage of trial. This differentiation based on the stage
of trial must be read with reference to Section 465(2) CrPC.
C Section 465(2) does not indicate that it only covers challenges to
pre-trial orders after the conclusion of the trial. The cardinal
principle that guides Section 465(2) CrPC is that the challenge
to an irregular order must be urged at the earliest. While
determining if there was a failure of justice, the Courts ought to
address it with reference to the stage of challenge, the
D
seriousness of the offence and the apparent intention to prolong
proceedings, among others; In the instant case, the cognizance
order was challenged by the appellant two years after cognizance
was taken. No reason was given to explain the inordinate delay.
Moreover, in view of the diminished role of the committal court
E under Section 209 of the Code of 1973 as compared to the role of
the committal court under the erstwhile Code of 1898, the
gradation of irregularity in a cognizance order made in Sections
460 and 461 and the seriousness of the offence, no failure of justice
has been demonstrated; (iv) It is a settled principle of law that
cognizance is taken of the offence and not the offender. However,
F
the cognizance order indicates that the Special Judge has perused
all the relevant material relating to the case before cognizance
was taken. The change in the form of the order would not alter
its effect. Therefore, no failure of justice under Section 465 CrPC
is proved. This irregularity would thus not vitiate the proceedings
G in view of Section 465 CrPC; (v) The Special Court has the power
to take cognizance of offences under MMDR Act and conduct a
joint trial with other offences if permissible under Section 220
CrPC. There is no express provision in the MMDR Act which
indicates that Section 220 CrPC does not apply to proceedings
under the MMDR Act; (vi) Section 30B of the MMDR Act does
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 995

not impliedly repeal Section 220 CrPC. Both the provisions can A
be read harmoniously and such an interpretation furthers justice
and prevents hardship since it prevents a multiplicity of
proceedings; (vii) Since cognizance was taken by the Special
Judge based on a police report and not a private complaint, it is
not obligatory for the Special Judge to issue a fully reasoned order
B
if it otherwise appears that the Special Judge has applied his mind
to the material; (viii) A combined reading of the notifications dated
29 May 2014 and 21 January 2014 indicate that the Sub-Inspector
of Lokayukta is an authorized person for the purpose of Section
22 of the MMDR Act. The FIR that was filed to overcome the
bar under Section 22 has been signed by the Sub-Inspector of C
Lokayukta Police and the information was given by the SIT.
Therefore, the respondent has complied with Section 22 CrPC;
and (ix) The question of whether A-1 was in-charge of and
responsible for the affairs of the company during the commission
of the alleged offence as required under the proviso to Section
D
23(1) of the MMDR Act is a matter for trial. There appears to be
a prima facie case against A-1, which is sufficient to arraign him
as an accused at this stage. [Para 85][1056-F-H; 1057-A-H;
1058-A-E]
Dharam Pal v. State of Haryana, a Constitution Bench
(2014) 3 SCC 306 : [2013] 13 SCR 1052 – followed. E

Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516
: [2012] 3 SCR 496; Kishun Singh v. State of Bihar
(1993) 2 SCC 16 : [1993] 1 SCR 31; Municipal
Council, Palai v. T.J Joseph AIR 1963 SC 1561 :
[1964] SCR 87; Harshad Mehta v. State of F
Maharashtra (2010) 8 SCC 257; Pepsi Foods Ltd. v.
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5 Suppl. SCR 12; State (NCT of Delhi) v. Sanjay (2014)
9 SCC 772 : [2014] 9 SCR 1063; SMS Pharmaceuticals
v. Neeta Bhalla (2005) 8 SCC 89 : [2005] 3 Suppl. SCR G
371; Mainuddin Abdul Sattar Shaikh v. Vijay D Salvi
(2015) 9 SCC 622 : [2015] 6 SCR 1033 – relied on.
Gangula Ashok v. State of AP (2000) 2 SCC 504 : [2000]
1 SCR 468; State of MP v. Bhooraji (2001) 7 SCC 679
H
996 SUPREME COURT REPORTS [2021] 11 S.C.R.

A : [2001] 2 Suppl. SCR 128; Moly v. State of Kerala
(2004) 4 SCC 584 : [2004] 3 SCR 346; Vidyadharan
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B
[2014] 2 SCR 1; AR Antulay v. RR Nayak, 1988 AIR
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D
BansaL (2015) 1 SCC 48 : [2014] 14 SCR 1124;
Harshad Mehta v. State of Maharashtra, (2010) 8 SCC
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Naik, (2001) 4 SCC 713 : [2001] 2 SCR 714; State of
E MP v. Kedia Leather & Liqour Limited, (2003) 7 SCC
389 : [2003] 2 Suppl. SCR 727; Lal Shah Baba Dargah
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10 SCR 966; Deep Chand v. State of Uttar Pradesh
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F
Mehmood Ul Rehman v. Khazir Mohammad Tunda
(2015) 12 SCC 420 : [2015] 4 SCR 841; Sunil Bharti
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Ravindranatha Bajpe v. Bangalore Special Economic
Zone Ltd Criminal Appeal Nos. 1047-1048/2021;
G Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC
424 : [2012] 2 SCR 696; State of Gujarat v. Afroz
Mohammed Hasanafatta (2019) 20 SCC 539; Kanwar
Pal Singh v. The State of Uttar Pradesh (2020) 14 SCC
331 : 2019 (12 ) JT 420; Jayant v. The State of Madhya
Pradesh (2021) 2 SCC 670; 2020 (12 ) JT 52; Shiva
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 997

Kumar Jatia v. NCT of Delhi (2019) 17 SCC 193 : [2019] A
11 SCR 210; Sunil Sethi v. State of Andhra Pradesh
(2020) 3 SCC 240; Ravindranatha Bajpe v. Mangalore
Special Economic Zone Ltd. 2021 SCC OnLine 806 –
referred to.
Case Law Reference B
[2000] 1 SCR 468 referred to Para 25
[2001] 2 Suppl. SCR 128 referred to Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1288 of 2021. C
From the Judgment and Order dated 12.11.2020 of the High Court
of Karnataka at Bengaluru in Criminal Petition No.2512 of 2017.
With
Criminal Appeal Nos.1289 and 1290 of 2021.
D
Pravin H. Parekh, Siddhartha Dave, Sr. Advs., S. Udaya Kumar
Sagar, Ms. Bina Madhavan, L. M. Chidanandayya, Ms. Akanksha Mehra,
M/s Lawyer S. Knit & Co., Naveen Kumar, Vinit Kumar, Shourajeet
Chakravarty, Siddharth Garg, Ms. Devanshi Singh, Himanshu Chaubey,
Advs. for the Appellant.
E
Nikhil Goel, AAG, V. N. Raghupathy, Ashutosh Ghade, Vinay
Mathew, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
F
Contents*
A. The Facts..........................................................................3
B. The Submissions.............................................................13
C. The Analysis..................................................................17
G
C.1 The power to take cognizance...............................17
C.2 Special Court’s power to take cognizance..............19
C.2.1 Section 465 CrPC and interlocutory orders.....30
*The Contents is as per the Original Judgment. H
998 SUPREME COURT REPORTS [2021] 11 S.C.R.

A C 2.2 Section 465 CrPC and failure of Justice...........35
C.3 Cognizance of the offence and not the offender........41
C.4 Cognizance by the Special Court of offences under
the IPC...................................................................47
B C.4.1 Joint trial and express repeal...........................51
C.4.2 Joint trial and implied repeal............................54
C.5 Cognizance order and non-application of mind ....58
C.6 ‘Authorised person’ and Section 22 of MMDR Act..67
C C.7 Vicarious liability and Section 23 of MMDR Act.......74
D. The Conclusion...............................................................78

A. The Facts
1. A Single Judge of the High Court of Karnataka dismissed two
D
petitions instituted by the appellants for quashing the criminal proceedings
initiated against them in Special CC No.599/2015 (arising out of Crime
No.21/2014) for offences punishable under the provisions of Sections
409 and 420 read with Section 120B IPC, Sections 21 and 23 read with
Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and
E Regulation) Act 19571 and Rule 165 read with Rule 144 of the Karnataka
Forest Rules 1969.
2. Pradeep S. Wodeyar, who is the Managing Director of a
Companyby the name of Canara Overseas Limited is arraigned as the
first accused2 and is the appellant in the appeal arising out of SLP
F (Criminal) No138/2021. Lakshminarayan Gubba, who is a director of
the said company has been arraigned as the second accused3 and is the
appellant in the appeal arising out of SLP (Criminal) No.1448/2021.
3. An overview of the criminal case needs to be noticed.
4. On 1 June 2009, Canara Overseas Limited, a Company dealing
G in exports and imports is alleged to have entered into an agreement with
K. Ramappa, the third accused4, who is the owner of Mineral Miners
1
"MMDR Act”
2
"A-1"
3
"A-2"
H 4
"A-3"
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 999
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

and Traders, Bellary for the purpose of exporting iron ore. In pursuance A
of the agreement, the company purchased 31,650.65 metric tons (MTs)
of iron ore from A-3, of which 20,000 metric tons were exported to
China between the period of 1 January 2009 to 31 May 2010, while the
remaining iron ore was sold to two other companies in India. These
transactions are alleged to have been carried out through, or at Belekere
B
Port in Karnataka. It has been alleged that the transportation and export
of iron ore was carried out in the absence of permits from the Forest
Department and the Department of Mines and Geology. The iron ore
involved in the transactions is alleged to have been removed from the
Mining Lease No.921/2553, Kallahari Village, Bellary. The fourth
Accused5 is allegedly the mine owner while the fifth accused6 is their C
agent. The iron ore is alleged to have been stocked in an unauthorized
stockyard without bulk permits from the department of Mines and Geology
and to have been transported without an authorized forest way pass.
Acting in conspiracy, the accused are alleged to have caused a loss of
Rs.3,27,83,379/- to the state exchequer.
D
5. Persistent complaints were made on large-scale illegal mining
and transportation of iron ore, and illegal encroachment in forest areas
for the purpose of illegal mining. Samaj Parivartna Samudaya filed a
Petition7 under article 32 before this Court regarding illegal mining in the
forest areas in Andhra Pradesh and Karnataka. The Central Empowered
Committee8, pursuant to an order of this Court dated 19 November E
2010submitted a report on 7 January, 2011 regarding six mining leases in
the Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This Court
by an order dated 25 February 2011 directed the CEC to submit its
report in respect of the allegations of illegal mining in Karnataka. Pursuant
to the order, the CEC filed five reports on illegal mining. Following the F
submission of the report of the CEC dated 3 February 2012 raising
concerns over illegal mining, transportation, sale and export of iron ore
in the districts of Bellary, Chitradurga and Tumkur, directions were issued
by this Court on 16 September 2013 for an investigation by the CBI. The
purport of the directions of this Court was as follows:
G
(i) CBI was permitted to register criminal cases against those
exporters in respect of whom a preliminary enquiry had
5
"A-4"
6
"A-5"
7
Writ Petition (Civil) No. 562/2009
8
"CEC” H
1000 SUPREME COURT REPORTS [2021] 11 S.C.R.

A been conducted, involving export of more than 50,000 MTs
of iron ore without valid permits;
(ii) CBI was permitted to refer the cases of exporters who
had exported less than 50,000 MTs and had not been
enquired in the preliminary enquiry (PE), to the Government
B of Karnataka for taking necessary action in accordance
with relevant laws;
(iii) CBI was permitted to refer to the Government of Karnataka
for initiating action against exporters who had been enquired
into in the PE and had exported less than 50,000 MTs of
C iron ore without valid permits; and
(iv) The Government of Karnataka was directed to take action
under relevant law as recommended by the CEC in its report
dated 5 September 2012 with regard to those exporters who
had exported less than 50,000 MTs and report compliance.
D 6. On 22 November 2013, the Government of Karnataka entrusted
the above cases in terms of the orders of this Court for further investigation
and criminal proceedings to the Lokayukta Police. On 21January 2014,
the state government issued a notification authorizing several officers,
including the Inspector of Police, as ‘authorized persons’ for the purpose
E of sub-sections (3) and (4) of Section 21 and Section 22 of the MMDR
Act and Rules 43(3) and 46 of the Karnataka Minor Mineral Concession
Rules, 1994. On 24 January 2014, the Government of Karnataka
constituted a Special Investigation Team9 in the Karnataka Lokayukta
for investigation of illegal mining among other purposes. The SIT included
the Inspector of Police. On 29 May 2014, the Home Department of the
F Government of the Karnataka declared, in pursuance of Section 2(s) of
the Criminal Procedure Code,10 that the office of the Inspector General
of Police, SIT, Karnataka Lokayukta shall be a police station for the
purpose of the said clause and, power and jurisdiction in respect of the
offences of illegal mining of minerals/minor minerals as defined in Section3
G of the MMDR Act was conferred. The text of the notification is extracted
below:
“In exercise of the powers conferred by clause (s) of Section 2 of
the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),
9
"SIT”
H 10
"CrPC”
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1001
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the Government of Karnataka hereby declare that with effect A
from the date of publication of this notification in the Official
Gazette, the office of Inspector General of Police, Special
Investigation Team, Karnataka Lokayuktha, Bangalore shall be a
Police Station for the purpose of the said clause with jurisdiction
throughout the State of Karnataka and shall have powers and
B
jurisdiction in respect of the offences of illegal mining of “minerals”
and “minor minerals” as defined under Section 3 of the Mines
and Minerals (Regulation and Development) Act, 1957 (Central
Act 6 7 of 1957) committed under the provisions of the following
Acts and the corresponding rules, if any, made thereunder namely:-
1. Indian Penal Code, 1860 C

2. Prevention of Corruption Act, 1988
3. The Karnataka Forest Act, 1962
4. Any other offence under any other relevant Act committed
either in furtherance of or in violation of the above mentioned D
Acts or to undertake illegal mining; and
5. Any other cases of illegal mining entrusted by State Government.
The Notification shall remain in force for period of two years, co-
terminus with the term of the Special Investigation Team (SIT).”
E
7. On 9 October 2014, an FIR was registered in the first case
(Crime No.21/2014) against the following accused:
(i) G. Lakshminarayan Gubba, Managing Director, Canara
Overseas Private Limited;
(ii) Canara Overseas Private Limited; F
(iii) K. Ramappa, owner of M/s Mineral Miners and Traders;
and
(iv) Unknown Government Officials and unknown private
persons.
8. A final report under Section 173 of the CrPC was submitted on G
17 December 2015 against:
(i) Canara Overseas Limited represented by Sri Pradeep S.
Wodeyar, Managing Director (A-1);
(ii) Lakshminarayana Gubba (A-2);
H
1002 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (iii) K. Ramappa (A-3);
(iv) Smt. Shanthalakshmi Jayaram (A-4); and
(v) J. Mithileshwar (A-5).
9. On 29 December 2015, the Deputy Registrar, City Civil Court,
B Bengaluru passed the following order noting that the charge-sheet was
submitted on 17 December 2015:
“The charge sheet is submitted by the Inspector of Police, S.I.T.
Kamataka Lokayukta, Bengaluru, on 17.12.2015. The offences
alleged against the above named accused punishable U/s 409,
420 r/w 120B IPC 21, 23 r/w 4(1), 4(l)(A) of MMDR Act 1957
C
and Sec. 165 r/w 144 Kamataka Forest Rules 1969. Prays that
for the reasons stated therein this Hon’ble Court may be pleased
to prosecute the above named accused for the aforesaid offences:
1. F.I.R. Complaint. Crime papers in Cr.No.21/2014 are enclosed.

D 2. Connected documents are produced.
3. Statements of witnesses are produced.
4. Accused copies are furnished.
5. Connected properties are not produced.

E 6. Al & A4 are not arrested as per charge sheet.
A2, A3 & A5 are on court bail.
Place it before the XXIII Addi. City Civil & Sessions Judge and
Special Judge for Prevention of Corruption Act for kind orders.
Sd/- 29/12/15
F
Deputy Registrar
City Civil Court
Bengaluru.”
10. On 30 December 2015,the 23rd Additional City Civil Sessions
G Judge and Special Judge for Prevention of Corruption Act at Bengaluru
City took cognizance after perusing the final report. A direction was also
issued for the registration of the case against the accused persons and
for issuance of summons. The order reads as follows:
“Perused the final report. Cognizance is taken against Accused
H No. 1 to 5. Register the case against Accused No. 1 to 5. Register
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1003
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the case against Accused No. 1 to 5. Register the case and issue A
summons to accused No. 1 to 5 returnable by 16.01.2016.
Sd/-30.12.2015
Special Judge,
Prevention of Corruption Act B
Bangalore Urban, Bangalore”
11. On 20 March 2017, proceedings were instituted before the
High Court under Section 482 CrPC for quashing the criminal proceedings
initiated against the appellants. The appellants sought the quashing of
the criminal proceedings on the following grounds: C
(i) A-1 was not involved in the alleged illegal transaction. He
was residing in Indonesia at the relevant point of time. The
affairs of the company were managed by A-2;
(ii) According to the agreement entered into for the transaction,
D
the responsibility of obtaining the dispatch permit from the
concerned Department of Mines and Geology and to
transport the same was on the A-3. Therefore, A-2 could
not be prosecuted for procuring iron ore without the permit;
(iii) The order of the Special Judge taking cognizance does not
mention the offences for which cognizance was taken. E
Therefore, the cognizance order reflects non-application of
mind; and
(iv) The Special Judge did not have the power to take cognizance
of offences under the MMDR Act without a complaint by
the authorized officer in view of Section 22 of the MMDR F
Act.
12. The High Court by its judgment dated 12 November 2020
dismissed the quashing petitions filed by Pradeep S. Wodeyar (A-1) and
Lakshminarayan Gubba (A-2) on the following grounds:
G
(i) A-1 is sought to be prosecuted in his capacity as a Managing
Director of the company. Under Section 23 of the MMDR
Act every person who at the time the offence was
committed was responsible for the conduct of the business
shall be guilty of the offence. Whether A-1 was personally
involved in the relevant transaction could only be decided H
1004 SUPREME COURT REPORTS [2021] 11 S.C.R.

A during the trial since A1 would have to prove that the
commission of the alleged offence was not within his
knowledge in terms of the proviso to Section 23;
(ii) Though according to the agreement, A-3 was given the
responsibility of obtaining the mineral dispatch permit, A-2
B transported the minerals without insisting on A-3 obtaining
the permit;
(iii) The order taking cognizance was passed after considering
the SIT report. It is sufficient if the order reflects application
of mind. It is a settled position of law that an order taking
C cognizance need not be elaborate, with lengthy reasoning.
It is sufficient if the Special Judge has satisfied himself that
there is sufficient ground for proceeding against the accused
person;
(iv) A complaint was filed by the authorized person as required
D under Section 22 of the MMDR Act based on the SIT report;
(v) There are similar allegations in the complaint and the SIT
report. If the Special Judge has looked into the SIT report
and has satisfied himself that the allegations prima facie
disclose the commission of the offence, the Special Judge
E has taken cognizance of the offence under Section 22 of
the MMDR Act; and
(vi) When a complaint is filed under either Section 200 CrPC
or under Section 22 of the MMDR Act, the Court could
either take cognizance based on the facts on record or can
F refer the complaint for investigation under Section 156(3)
of CrPC or order a fresh enquiry under Section 202 CrPC.
Since a detailed investigation has already been undertaken
by the SIT, the Special Court can consider the SIT report
for the purpose of taking cognizance.
13. SLP (Criminal) No.138/2021 and SLP (Criminal) No.1448/
G
2021 were instituted under Article 136 of the Constitution to challenge
the judgment of the High Court. In the appeal arising out of the companion
SLP11, the appellant is the proprietor of a concern by the name of TBS
Logistics which is involved in the business of buying, selling and exporting

H 11
SLP (Criminal) No.1923/2021
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1005
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

iron ore. The case of the prosecution is that the appellant entered into a A
criminal conspiracy with other accused persons, for purchasing and selling
extracted iron ore illegally without mining dispatch permits and the payment
of charges to the Mining and Geological Departments and the Forest
Department. On 9 October 2014, Crime case No.23/2014 was registered
with the police investigation team, Karnataka Lokayukta Bengaluru for
B
offences punishable under Sections 409, 420 and 471 read with 120B of
the IPC, Sections 21 and (4)(1)(A) of the MMDR Act, 1957 and Rules
144 and 165 of the Karnataka Forest Rules, 1959. A charge sheet was
submitted on 24 November 2015. The Special Judge took cognizance on
30 December 2015. The appellant instituted a petition under Section 482
CrPC for quashing the criminal proceedings. The petition was dismissed C
by the High Court on 18 November 2020 for the following reasons:
(i) The argument that the SIT does not have the jurisdiction to
investigate into mining offences is not res integra in view
of the judgments of the High Court. It is a settled position
that the SIT has the jurisdiction to register a FIR to D
investigate into mining offences;
(ii) An authorized officer filed the complaint before the Special
Judge. Therefore, there is no infirmity in view of the bar
contained in Section 22 of the MMDR Act;
(iii) The order taking cognizance makes it evident that the Special E
Judge referred to the FIR, charge-sheet, seizure mahazar
and documents collected by the investigating officer for
taking cognizance of the offences. The order reflects
application of mind; and
(iv) The material produced by the SIT prima facie makes out F
the ingredients of the offences charged against the petitioner.
14. Since similar issues arise in all the three appeals, they have
been heard together. As stated earlier, in the first two appeals, A-1 and
A-2 are before the court. The companion appeal has been instituted by
A-1 (out of 5 accused). G
B. The Submissions
15. It is in this backdrop that it becomes necessary to consider the
submissions which have been urged on behalf of the appellants in support
of the three appeals.
H
1006 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 16. Mr. Siddharth Daveand Mr Pravin H Parekh, Senior Counsel
have led the arguments on behalf of the appellants. Their submissions
have proceeded along the following lines:
(i) The order of the Special Judge taking cognizance is contrary
to law. Cognizance, it is well settled, has to be taken of the
B offences and not of the offender. Yet the Special Judge has
acted illegally, without application of mind in taking
cognizance of the accused;
(ii) A-1 (Pradeep S. Wodeyar) cannot be held vicariously liable
since:
C (a) He was not in-charge of the affairs of the company
at the relevant time during the alleged illegal
transactions;
(b) He was in Indonesia and hence cannot be held
personally responsible;
D (iii) The Special Court constituted under Section 30(B) of the
MMDR Act has jurisdiction only to try offences for
contravention of Section (4)(1) or Section 4(1)(A) of the
MMDR Act, punishable under Section 21(1). This power
of the Special Court does not extend to taking cognizance
(and conducting trial) of offences punishable under the IPC;
E
(iv) Section 193 CrPC bars the Court of Session from taking
cognizance of any offence as a court of original jurisdiction
unless the case has been committed to it by the Magistrate
under the Code. The only exception is if it has been
otherwise expressly provided by the CrPC or by any other
F law for the time being in force. There is no specific provision
in the MMDR Act or the Code empowering the Court of
Session to take cognizance without an order of committal
by the Magistrate; and
(v) Section 22 of the MMDR Act stipulates that no Court shall
G take cognizance of any offence punishable under the Act
or any Rules made under it except upon a written complaint
made by a person authorized in this behalf by the Central
Government or the State Government. There was no
authorization for the Inspector of the Lokayukta Police and
hence there has been a violation of the provisions of Section
H 22.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1007
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

17. The submissions urged on behalf of the appellants have been A
opposed by the State of Karnataka. Mr. Nikhil Goel has urged the
following submissions before this Court:
(i) A-1 was undisputedly the Managing Director of Canara
Overseas Private Limited during the period when the
offences were committed. Section 23 of the MMDR Act B
incorporates the principle of criminal vicarious liability. The
proviso to Section 23(1) carves out the exception that when
it is proved that the offence was committed without the
knowledge of the accused or that he had exercised all due
diligence, he shall not be vicariously liable for the offences
by the company. Establishing the conditions in the proviso, C
however, is a matter of trial. Moreover, it is a settled principle
that the role of the Managing Director is distinct since by
the very nature of the position, the person who occupies it
is in-charge of, and responsible for, the conduct of the
business; D
(ii) The order of the Deputy Registrar indicates that the entire
papers of the investigation were placed before the Special
Judge. Moreover, the order of the Special Judge indicates
that he had perused the charge sheet and thereafter had
taken cognizance and proceeded to issue summons. Hence, E
there can be no grievance of non-application of mind. A
distinction has to be drawn in law between cognizance based
on complaints under Section 200 CrPC which are not
proceeded by an investigation and a complaint proceeded
by a police report. A well-reasoned cognizance order is not
required when cognizance is taken pursuant to a police F
report since the Magistrate has enough material before the
court to peruse. However, since there is a dearth of material
in a Section 200 CrPC complaint, it is only in such cases
that a cognizance order needs to be well-reasoned to prove
application of mind. Moreover, in the present case, the High G
Court has after a detailed discussion come to the conclusion
that the summons issued to the appellants contained details
of the offences. Therefore, the accused were aware of the
charges against them. Hence, it cannot be argued that the
order issuing summons did not fulfil the requirement of
Section 190 or that cognizance was not validly taken; H
1008 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (iii) The mere fact that cognizance was directly taken by the
Sessions Court, in itself, would not be sufficient to quash
the entire criminal proceeding under Section 482 CrPC. In
view of the constricted role of the Magistrate under Section
209 at the stage of committal of an offence exclusively
triable by the Sessions Court, the absence of a committal
B
order of the Magistrate is hardly of any significance unless
a failure of justice is shown. In any event, in the present
litigation, the appellants moved the High Court in 2017in
order to challenge the cognizance order of 2015. In the
meantime, submissions on the framing of charges were
C addressed before the Special Judge. There is absolutely no
material to indicate that a failure of justice has been
occasioned due to the Magistrate not passing an order of
committal;
(iv) There is no merit in the submission that there was an absence
D of delegation of power under Section 22 of the MMDR Act
to file a complaint under Section 21(i):
(a) The Government of Karnataka had issued a specific
notification for the purpose of Section 22 on 21
January 2014, authorizing among others, the police
E inspector having jurisdiction over the place; and
(b) The High Court has recorded that a complaint was
filed under Section 22 read with Section 21(i) of the
MMDR Act and that it contains allegations identical
to those contained in the charge sheet and SIT report
F
pertaining to offences under the Act.
C. The Analysis
18. Having adverted to the submissions of the parties, we shall
now turn to the issues raised before this Court.
G
C.1 The power to take cognizance
19. Chapter XIV of the CrPC is titled “Conditions Requisite for
Initiation of Proceeding”. Section 190 empowers the Magistrate to take
cognizance of any offence:
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1009
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

“190. Cognizance of offences by Magistrates. A
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class specially
empowered in this behalf under sub- section (2), may take
cognizance of any offence-
B
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been C
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub- section (1) of
such offences as are within his competence to inquire into or try.”
20. Clauses (a), (b) and (c) of sub-section (1) of Section 190 D
contemplate cognizance being taken by a Magistrate of an offence by
any of the following three modes, namely upon:
(i) the Magistrate receiving a complaint of facts which
constitute an offence;
E
(ii) a police report of such facts; and
(iii) information received from any person other than a police
officer or upon his own knowledge that an offence has been
committed.
21. Section 193 reads as follows: F
“193. Cognizance of offences by Courts of Session. Except as
otherwise expressly provided by this Code or by any other law
for the time being in force, no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate under this G
Code.”
Section 193 stipulates that unless the case has been committed by
a Magistrate to the Sessions Court under the Code, no Court of Session
shall take cognizance of any offence. But there are two exceptions to
this formulation, namely, where: H
1010 SUPREME COURT REPORTS [2021] 11 S.C.R.

A (i) the CrPC has made an express provision to the contrary;
and
(ii) an express provision to the contrary is contained in “any
other law for the time being in force”.
The bar in Section 193 is to the Sessions Court taking cognizance
B of an offence, as a court of original jurisdiction unless the case has been
committed to it by the Magistrate under the Code.
22. Section 209 states that when a case is instituted either on a
police report or otherwise, and it appears to the Magistrate that the
offence is exclusively triableby the Sessions Court, he shall commit the
C case to the Court of Session. Section 209 reads as follows:
“209. Commitment of case to Court of Session when offence is
triable exclusively by it. When in a case instituted on a police
report or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall-
D
(a) commit, after complying with the provisions of section 207 or
section 208, as the case may be, the case to the Court of Session,
and subject to the provisions of this Code relating to bail, remand
the accused to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand
E the accused to custody during, and until the conclusion of, the
trial;
(c) send to that Court the record of the case and the documents
and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to
F the Court of Session.”
C.2 Special Court’s power to take cognizance
23. The counsel for the appellant contended that the Special
Court(which is a Sessions Court) is not empowered to take cognizance
of offences without the case being committed to it, in view of Section
G 193 CrPC. Since the Magistrate did not commit the case to the Special
Court before it took cognizance of the offences in the instant case, it has
been contended that the order taking cognizance is vitiated. As stated in
the earlier section of the judgment, Section 193 is subject to two
exceptions- (a) provisions to the contrary under the CrPC; (b) provisions
H to the contrary under any other law.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1011
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

24. Reference was made to Section 36A(1)(d) of the National A
Drugs and Psychotropic Substances Act 1985 12, Section 5 of the
Prevention of Corruption Act 198813 and Section 16(1) of the National
Investigation Agency Act 200814 which specifically empower the Special
Court to take cognizance of offences without the accused being
committed to it for trial. It was contended that since neither the Code
B
nor the statute specifically empower the Special Court to take cognizance
of the offence without committal, the exercise of power by the Special
Court to take cognizance is without jurisdiction.
25. Before we address the merits of this contention, we find it
imperative to refer to the judgments of this Court on the interpretation of
Section 193 CrPC. The decision of a two judge Bench in Gangula Ashok C
v. State of AP15 arose out of a complaint lodged under the Schedule
Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 16
against the appellants. The police filed a charge-sheet upon investigation
directly before the Sessions Court. The Sessions Court is designated as
a Special Court for trial of offences under the Act. Charges were framed D
by the Special Judge. The High Court was moved for quashing the
charges and the charge-sheet. The Single Judge held that the Special
Judge had no jurisdiction to take cognizance of the offence under the
Act without the case being committed to it and accordingly set aside the
proceedings. The High Court directed the charge-sheet and connected
papers to be returned to the police officer who was directed to present E
it before the JMFC for the purpose of committal and the Special Court
was directed on committal to frame appropriate charges. The order of
the High Court was questioned in appeal before this Court. The first
issue which arose was whether the Special Judge could have taken
cognizance ‘straightway without the case being committed’ by the F
Magistrate. The Special Court under the SC and ST Act was a Court of
Sessions, having regard to Section 14 of the Act. After setting out the
provision of Section 1417, Justice KT Thomas observed that the Special
12
"NSPS Act”
13
"PC Act” G
14
"NIA Act”
15
(2000) 2 SCC 504
16
"SC and ST Act”
17
"For the purpose of providing for speedy trial, the State Government shall, with the
concurrence of the Chief Justice of the High Court, by notification in the Official
Gazette, specify for each district a Court of Session to be a Special Court to try the
offences under this Act”. H
1012 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Court under the Act was constituted only for the ‘speedy trial’ of offences
which is different from an ‘inquiry’. In this context, it was observed:
“8…So it is for trial of the offences under the Act that a particular
Court of Session in each district is sought to be specified as a
Special Court. Though the word “trial” is not defined either in the
B Code or in the Act it is clearly distinguishable from inquiry. The
word “inquiry” is defined in Section 2(g) of the Code as “every
inquiry, other than a trial, conducted under this Code by a Magistrate
or court”. So the trial is distinct from inquiry and inquiry must
always be a forerunner to the trial. The Act contemplates only
the trial to be conducted by the Special Court. The added reason
C
for specifying a Court of Session as a Special Court is to ensure
speed for such trial. “Special Court” is defined in the Act as “a
Court of Session specified as a Special Court in Section 14” [vide
Section 2(1)(d)].”
After analyzing the provision of Sections 4(2) and 193 of the CrPC
D
this Court observed that there is no express provision by which the Special
Court can take cognizance of the offence without committal; nor can
this be inferred. It was further observed that since the Sessions Court is
placed higher in the hierarchical court structure, the legislature intentionally
relieved it from performing preliminary formalities:
E
“10 [..] The word “expressly” which is employed in Section 193
denoting those exceptions is indicative of the legislative mandate
that a Court of Session can depart from the interdict contained in
the section only if it is provided differently in clear and unambiguous
terms. In other words, unless it is positively and specifically
F provided differently no Court of Session can take cognizance of
any offence directly, without the case being committed to it by a
Magistrate.
11. Neither in the Code nor in the Act is there any provision
whatsoever, not even by implication, that the specified Court of
G Session (Special Court) can take cognizance of the offence under
the Act as a court of original jurisdiction without the case being
committed to it by a Magistrate. If that be so, there is no reason to
think that the charge-sheet or a complaint can straight away be
filed before such Special Court for offences under the Act. It can
be discerned from the hierarchical settings of criminal courts that
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1013
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the Court of Session is given a superior and special status. Hence A
we think that the legislature would have thoughtfully relieved the
Court of Session from the work of performing all the preliminary
formalities which Magistrates have to do until the case is committed
to the Court of Session.”
26. Consequently, it was held that a Special Court under the SC B
and ST Act is essentially a court of Sessions and it cannot take cognizance
of the offence without the case being committed to it by the Magistrate
in accordance with the provisions of the CrPC. In other words, the
complaint or a chargesheet could not straightway be laid down before
the Special Court. In this backdrop, this Court upheld the view of the
High Court setting aside the proceedings initiated by the Special Court. C

27. In State of MP v. Bhooraji18, the appellant was convicted
inter alia of an offence punishable under Section 302/149 of the IPC
read with Section 3(2) of the SC and ST Act. Since the charge sheet
was filed under Section 3(2) of the SC and ST Act together with offences
under the IPC, the appellants were tried by a Special Judge constituted D
under the SC and ST Act. The appellant was convicted. An appeal was
filed before the High Court against the conviction. During the pendency
of the appeal, this Court decided Gangula Ashok (supra). An
interlocutory application was filed by the appellants seeking the trial
proceedings to be quashed since the Special Court took cognizance E
without the case being committed to it by the Magistrate. The High
Court allowed the application and directed the charge sheet and connected
papers to be returned to the police who were directed to present it before
the Magistrate for the purpose of committal. In appeal, this Court referred
to Section 465(1) of the Code which states that no finding shall be
reversed on account of irregularity unless there is a failure of justice. F
The Bench compared the provision on committal to the Sessions Court
by the Magistrate19, before and after the enactment of the Code of
1973. Before 1973, the committal Court could examine witnesses and
records before deciding to commit the case to the Court of Sessions.
However, after 1973, the only examination that the Magistrate has to G
undertake for the exercise of the committal power is to determine whether
the case is exclusively triable by the Court of Sessions. Highlighting the
change in the role of the committing court after 1973, the Bench observed
18
(2001) 7 SCC 679
19
Sections 207 and 207A of the Old Code, and Section 209 of the new Code H
1014 SUPREME COURT REPORTS [2021] 11 S.C.R.

A that the accused would achieve no ‘advantage’ by sending the case
back to the Magistrate for committal:
“18. It is apposite to remember that during the period prior to the
Code of Criminal Procedure, 1973, the committal court, in police
charge-sheeted cases, could examine material witnesses, and such
B records also had to be sent over to the Court of Session along
with the committal order. But after 1973, the committal court, in
police charge-sheeted cases, cannot examine any witness at all.
The Magistrate in such cases has only to commit the cases
involving offences exclusively triable by the Court of Session.
Perhaps it would have been possible for an accused to raise a
C
contention before 1973 that skipping committal proceedings had
deprived him of the opportunity to cross-examine witnesses in the
committal court and that had caused prejudice to his defence. But
even that is not available to an accused after 1973 in cases charge-
sheeted by the police. We repeatedly asked the learned counsel
D for the accused to tell us what advantage the accused would secure
if the case is sent back to the Magistrate’s Court merely for the
purpose of retransmission of the records to the Sessions Court
through a committal order. We did not get any satisfactory answer
to the above query put to the counsel.
E 28. A contention was also raised on the ground that Section 465
would only be applicable where the order has been passed by a ‘court of
competent jurisdiction’, and that the Court of Sessions is not a competent
court before the case is committed to it. Rejecting this argument, it was
observed that the phrase “court of competent jurisdiction” denotes a
F validly constituted court conferred with the jurisdiction to try the offence
and an irregularity in the procedure would not denude the competence
of the court. The Bench further distinguished the decision in Gangula
Ashok (supra) on the ground that there the trial was yet to begin as
opposed to this case where the challenge was after the accused was
convicted. On these reasons, the appeal was allowed.
G
29. In Moly v. State of Kerala20 and Vidyadharan v. State of
Kerala21, the accused was convicted under the SC and ST Act and
provisions of the IPC. The appeal against the conviction was dismissed

20
(2004) 4 SCC 584
H 21
(2004) 1 SCC 215
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1015
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

by the Kerala High Court. Before this Court, it was contended that the A
Sessions Court could not have taken cognizance without committal by
the Magistrate. Relying on Gangula Ashok (supra), it was held that the
Court of Sessions could not have taken cognizance and the order of
conviction was set aside.
30. In Rattiram v. State of Madhya Pradesh22, a three judge B
Bench of this Court dealt with a divergence of views, in Moly (supra)
and Vidhyadharan (supra) on one hand, and Bhooraji (supra) on the
another, on the effect of not committing an accused in terms of Section
193 of the CrPC, in cases where a chargesheet is filed under the SC and
ST Act and cognizance is directly taken by the Special Judge. Justice C
Dipak Misra (as the learned Chief Justice then was) delivered the
judgment of the three judge Bench to resolve the conflict of opinions.
The Court was to decide on the issue of whether the cognizance order
passed by the Special Court without committal of proceedings could be
held to vitiate the proceedings after the trial is completed:
D
“14. The demonstrable facet of the discord is that if cognizance
is directly taken by the Special Judge under the Act and an accused
without assailing the same at the inception allows the trial to
continue and invites a judgment of conviction, would he be
permitted in law to question the same and seek quashment of the
conviction on the bedrock that the trial Judge had no jurisdiction E
or authority to take cognizance without the case being committed
to it and thereby violated the mandate enshrined under Section
193 of the Code.”
(emphasis supplied)
31. The Bench answered the question in the negative by holding F
that the trial will not be vitiated due to an irregularity in the cognizance
order for the following reasons:
(i) Section 207 and Section 207A of the Code of 1898
enunciated an exhaustive procedure which was to be
followed by the Magistrate before committing the case to G
the Court of Sessions. The CrPC of 1973 made a departure
from the provisions of the erstwhile Code of 1898 under
which “the accused enjoyed a substantial right prior to

22
(2012) 4 SCC 516 H
1016 SUPREME COURT REPORTS [2021] 11 S.C.R.

A committal of the case” which is “indeed a vital stage”. In
marked contrast, under the CrPC of 1973 the Magistrate
“is only required to see whether the offences are exclusively
triable by the Court of Sessions”. Noticing the clear
distinction between the earlier Code of 1898 and the CrPC
of 1973, the Court held that “there is sea of difference”
B
between the two provisions and there was nothing in Section
209 of the CrPC of 1973 which would even remotely suggest
that the protections as provided under the old Code have
been telescoped to the existing one”. In this backdrop, the
Court held that in view of the restricted role of the Magistrate
C in committal proceedings, absence of committal would not
lead to a failure of justice;
(ii) A criminal proceeding must endeavor to conform to the
principles of a ‘speedy trial’ and ‘protection of the victim of
the crime’. Since the objection was not raised at the time
D of framing of charges but only after the conviction, the
failure of justice must be proved to be overbearing compared
to the right of the victim and right of speedy trial which was
not proved in this case;
(iii) Moly (supra) and Vidhyadharan (supra) are per
incuriam. Bhooraji (supra) has been correctly decided;
E and
(iv) In Gangula Ashok (supra), the trial had not commenced
as compared to the other cases where the trial had
completed and the accused were convicted. The accused
did not wait for the trial to commence before challenging
F the cognizance order.
32. It may be noted that Section 14 of the SC and ST Act has
been substituted by Act 1 of 2016 with effect from 26 January 2016.
The proviso to Section 14(1), following the amendment, stipulates that
the Special Court shall have the power to directly take cognizance of
G offences under the Act. Recently, a Division Bench of this Court in
Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari23
interpreted the proviso to Section 14 of the SC and ST Act. In that case,
FIR was filed for offences punishable under the SC/ST Act and provisions
of the Penal Code. The Judicial Magistrate took cognizance of the
23
H Criminal Appeal No.967 of 2021
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1017
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

offences and issued process under Section 204 and then committed the A
case to the Special Court. An application was filed before the High
Court seeking to quash the FIR and summons order. It was contended
that in view of the proviso to Section 14 of the SC and ST Act, the
Magistrate had no power to take cognizance of offences under the Act.
The High Court allowed the application and quashed the proceedings on
B
the ground that the proviso to Section 14 ousts the jurisdiction of the
Magistrate to take cognizance. On appeal, a two judge bench of this
Court set aside the judgment of the High Court by holding that the proviso
to Section 14 of the SC and ST Act does not oust the power of the
Magistrate to take cognizance, but it provides the power to take
cognizance to the Special Court in addition to the Magistrate. While C
reversing the judgment of the High Court, Justice MR Shah, speaking
for the two judge Bench, observed:
(i) Section 14 does not take away the jurisdiction of the
Magistrate to take cognizance and commit the case to the
Special Court for trial. The words used in amended Section D
14 are “Court so established or specified shall have
power to directly take cognizance of the offences under
this Court”. The word, 'only' is missing; and
(ii) In view of the provisions of Section 460 CrPC, the act of
the Magistrate in taking cognizance could at the highest be E
held to be irregular and would not vitiate the proceedings.
33. The judgements on the interpretation of Section 193 CrPC
may for the purpose of analysis be divided into two categories based on
the time frame of challenge: (i) cases involving a challenge to the
cognizance order before and after the commencement of trial, that is, F
before the completion of the trial; and (ii) cases involving a challenge to
the cognizance order after the completion of the trial. Gangula Ashok
(supra) and Shantaben (supra) fall within the first category, while
Rattiram (supra), Moly (supra), Bhooraji(supra)and Vidhyadharan
(supra) fall within the second category. In both Bhooraji (supra)and
G
Rattiram (supra), though it was observed that the cognizance order is
irregular, it was held not to vitiate the proceedings since there was no
‘failure of justice’ that could be proved in view of Section 465 CrPC.
However, in Gangula Ashok (supra), the challenge to the cognizance
order was made before the commencement of the trial.
H
1018 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 34. Section 193 CrPC states that the Sessions Court shall not
take cognizance of an offence as a Court of original jurisdiction unless
the Magistrate commits the case to it. The only exception is if it is
expressly provided otherwise by the Code or the statute. Neither the
Code nor the MMDR Act provide that the Special Court could directly
take cognizance of the offences. Therefore, the Sessions Court did not
B
have the authority to take cognizance. Section 209 CrPC provides the
Magistrate the power to commit the case. In Dharam Pal v. State of
Haryana, a Constitution Bench 24, while discussing whether the
committing court was required under Section 209 to take cognizance of
the offence before committing the case to the Court of Sessions, held
C that the Magistrate could either commit the case before or after taking
cognizance. In this case, the Special Court has directly taken cognizance.
It now needs to be determined if this irregularity in the cognizance order
vitiates the entire proceedings for the order to be quashed and set aside.
35. Thus, the issue before us is two-fold: (i) whether the principle
D encompassed in Section 465 CrPC would be applicable to orders passed
at the pre-trial stage; and (ii) If the answer to (i) is in the affirmative,
whether order taking cognizance would lead to a ‘failure of justice’ if it
were not to be quashed.
C.2.1 Section 465 CrPC and interlocutory orders
E 36. Section 465 CrPC reads as below:
“465. Finding or sentence when reversible by reason of
error, omission or irregularity.—(1) Subject to the provisions
hereinbefore contained, no finding, sentence or order passed by
a Court of competent jurisdiction shall be reversed or altered by
F a Court of appeal, confirmation of revision on account of any
error, omission or irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before or
during trial or in any inquiry or other proceedings under
this Code, or any error, or irregularity in any sanction for the
G prosecution, unless in the opinion of that Court, a failure of justice
has in fact been occasioned thereby;
(2) In determining whether any error, omission or irregularity in
any proceeding under this Code, or any error or irregularity in any
sanction for the prosecution has occasioned a failure of justice,
H 24
(2014) 3 SCC 306
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1019
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the Court shall have regard to the fact whether the objection A
could and should have been raised at an earlier stage in
the proceedings.”
(emphasis supplied)
The general principle which is embodied in Section 465 CrPC is
that a finding or order is not reversible due to irregularities unless a B
‘failure of justice’ is proved. Sub-section (2) of Section 465 provides
that while determining whether there has beena failure of justice, the
appellate Court shall have regard to whether the objection regarding the
irregularity could and should have been raised at an earlier stage in the
proceeding. The observation in Rattiram (supra) distinguishing Gangula
Ashok (supra)on the basis of the stage of the trial thus takes its support C
from Section 465(2) of the Code where a classification is sought to be
made on the basis of the challenge vis-à-vis the stage of the proceedings.
37. Section 465 stipulates that the order passed by a Court of
competent jurisdiction shall not be reversed or altered by a Court of
appeal on account of an irregularity of the proceedings before trial or D
any inquiry. It is settled law that cognizance is pre-trial or inquiry stage.25
Therefore, irregularity of a cognizance order is covered by the provision.
In order to determine if the provision applies to pre-trial orders like an
irregular cognizance order or only applies to orders of conviction or
acquittal, it is necessary that we interpret the provision contextually.
E
38. Chapter XXXV of the CrPC is titled Irregular Proceedings”.
Section 46026 on the one hand provides for those irregularities if any, on
25
Gangula Ashok v. State of A.P, (2000) 2 SCC 504; Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92, where a Constitution Bench held that trial begins after framing of
charge
26
460. Irregularities which do not vitiate proceedings. If any Magistrate not empowered F
by law to do any of the following things, namely:-
(a) to issue a search- warrant under section 94;
(b) to order, under section 155, the police to investigate an offence;
(c) to hold an inquest under section 176;
(d) to issue process under section 187, for the apprehension of a person within his local
jurisdiction who has committed an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub- section (1) of G
section 190;
(f) to make over a case under sub- section (2) of section 192;
(g) to tender a pardon under section 306;
(h) to recall a case and try it himself under section 410; or
(i) to sell property under section 458 or section 459, erroneously in good faith does
that thing, his proceedings shall not be set aside merely on the ground of his not being
so empowered. H
1020 SUPREME COURT REPORTS [2021] 11 S.C.R.

A the part of a Magistrate which do not vitiate proceedings. Section 461 27,
on the other hand, contains a list of proceedings by the Magistrate who
is not empowered by law in this behalf, which would vitiate the
proceedings. Clause (e) of Section 460 relates to the taking of cognizance
of an offence under clause (a) or clause (b) of sub-section (1) of Section
B 190 CrPC. Clause (a) of section 190(1) refers to the receipt of a complaint
of facts constituting an offence and clause (b) refers to a police report
of the facts. Consequently, where a Magistrate who is not empowered
by law takes cognizance of an offence either under clause (a) or clause
(b) of Section 190(1) erroneously though in good faith, the proceedings
will not be set aside merely on the ground that the Magistrate was not so
C empowered. In other words, for vitiating the proceedings, something
more than a mere lack of authority has to be established. Clause (k) of
Section 461 adverts to a situation where a Magistrate who is not
empowered takes cognizance of an offence under clause (c) of Section
190(1). Section 190(1)(c) empowers the Magistrate to take cognizance
D upon information received from a person other than a police officer or
upon his own knowledge. The taking of cognizance under Section
190(1)(c) by a Magistrate who is not empowered, renders the
proceedings void.

E 27
461. Irregularities which vitiate proceedings. If any Magistrate, not being empowered
by law in this behalf, does any of the following things, namely:-
(a) attaches and sells property under section 83;
(b) issues a search- warrant for a document, parcel or other thing in the custody of a
postal or telegraph authority;
(c) demands security to keep the peace;
F (d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local nuisance;
(i) prohibits, under section 143, the repetition or continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
G (k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under section 397, for proceedings; or
(q) revises an order passed under section 446, his proceedings shall be void.
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1021
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

39. Section 462 relates to proceedings being taken in a wrong A
place; Section 463 with the non-compliance of the provisions of Section
16428 or Section 28129 and Section 464 with the effect of an omission to
frame, or absence of or error in a charge. Section 465 deals with
irregularity of “the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial”.
B
40. The overarching purpose of Chapter XXXV CrPC, as is evident
from a reading of Sections 460 to 466, is to prevent irregularities that do
not go to the root of the case from delaying the proceedings. Sections
462-464 lay down specific irregularities which would not vitiate the
proceedings. Section 465 on the other hand is a broad residuary provision
that covers all irregularities that are not covered by the above provisions. C
This is evident from the initial words of Section 465,namely, “Subject to
the provisions hereinabove contained”. Therefore, irregular proceedings
that are not covered under Sections 461-464 could be covered under
Section 465. It is also evident that the theme of ‘failure of justice’,
uniformly guides all the provisions in the Chapter. There is no indication D
in Section 465 and in Sections 462-464 that the provisions only apply to
orders of conviction or acquittal. All the provisions use the words “finding,
sentence or order”. Though one of the major causes of judicial delay is
the delay caused from the commencement of the trial to its conclusion,
there is no denying that delay is also predominantly caused in the pre-
trial stage. Every interlocutory order is challenged and is on appeal till E
the Supreme Court, on grounds of minor irregularities that do not go to
the root of the case. The object of Chapter XXXV of the CrPC is not
only to prevent the delay in the conclusion of proceedings after the trial
has commenced or concluded, but also to curb the delay at the pre-trial
stage. It has been recognized by a multitude of judgments of this Court F
that the accused often uses delaying tactics to prolong the proceedings
and prevent the commencement or conclusion of the trial.30 The object
of Chapter XXXV is to further the constitutionally recognized principle
of speedy trial. This was highlighted by Justice Jeevan Reddy while
writing for a two judge Bench in Santhosh De v. Archana Guha where
the learned judge observed31: G

28
Recording of confessions and statements
29
Record of examination of accused
30
AR Antulay v. RR Nayak, 1988 AIR 1531
31
AIR 1994 SC 1229 H
1022 SUPREME COURT REPORTS [2021] 11 S.C.R.

A “15. The facts of this case impel us to say how easy it has become
today to delay the trial of criminal cases. An accused so minded
can stall the proceedings for decades together, if he has the means
to do so. Any and every single interlocutory order is challenged in
the superior Courts and the superior Courts, we are pained to say,
are falling prey to their stratagems. We expect the superior Courts
B
to resist all such attempts. Unless a grave illegality is committed,
the superior Courts should not interfere. They should allow the
Court which is seized of the matter to go on with it. There is
always an appellate Court to correct the errors. One should keep
in mind the principle behind Section 465 Cr. P.C. That any and
C every irregularity or infraction of a procedural provision cannot
constitute a ground for interference by a superior Court unless
such irregularity or infraction has caused irreparable prejudice to
the party and requires to be corrected at that stage itself, because
such frequent interference by superior Court at the interlocutory
stages tends to defeat the ends of Justice instead of serving those
D
ends. It should not be that a man with enough means is able to
keep the law at bay. That would mean the failure of the very
system.”
41. Section 465 would also be applicable to challenges to
interlocutory orders such as a cognizance order or summons order on
E the ground of irregularity of procedure. This interpretation is supported
by sub-section (2) to Section 465 which states that while determining if
the irregularity has occasioneda failure of justice, the Court shall have
regard to whether the objection could or should have been raised at an
earlier stage in the proceeding. Therefore, the very fact that the statute
F provides that the Court is to consider if the objection could have been
raised earlier, without any specific mention of the stage of the trial,
indicates that the provision covers challenges raised at any stage. The
Court according to sub-Section (2)is to determine if the objection was
raised at the earliest.
G C 2.2 Section 465 CrPC and failure of Justice
42. Rattiram (supra), had distinguished Gangula Ashok32
(supra)on the basis of the stage of the proceedings since the trial had not

32
It is to be noted that no discussion on the applicability of Section 465 CrPC was
H made in Gangula Ashok
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1023
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

begun in the latter but was completed in the former. Rattiram (supra) A
does not hold that Section 465 CrPC would not be applicable to pre-
trial cases. The differentiation between trial and pre-trial cases was
made only with reference to sub-Section (2) of Section 465. Since the
cognizance order was challenged after the trial was over, the accused
could not prove failure of justice in view of Section 465(2). However,
B
Section 465(2) only provides one of the factors that shall be considered
while determining if there has been a failure of justice. Section 465(2)
by corollary does not mean that if the alleged irregularity is challenged at
an earlier stage, the failure of justice is deemed to be proved. Even in
such cases though, where the challenge is made before the trial begins,
the party has the burden of provinga ‘failure of justice’. Further, even if C
the challenge is made before the trial begins, the Court still needs to
determine if the challenge could have been made earlier.
43. The test established for determining if there has been a failure
of justice for the purpose of Section 465 is whether the irregularity has
caused prejudice to the accused.33 No straitjacket formula can be applied. D
However, while determining if there was a failure of justice, the Courts
could decide with reference to inter alia the stage of challenge, the
seriousness of the offence charged, and apparent intention to prolong
proceedings. It must be determined if the failure of justice would override
the concern of delay in the conclusion of the proceedings and the objective
of the provision to curb the menace of frivolous litigation. E

44. It needs to be determined if condoning the irregularity of the
cognizance order under Section 465 would lead to a ‘failure of justice’.
In our considered opinion, it would not lead to a failure of justice for the
following reasons:
F
(i) The diminished role of the committing Court under Section
209 of the new Code while committing the case to the Court
of Session. Both the decision in Bhooraji (supra) as well
as the subsequent decision in Ratiram (supra) notice that
under the Code of 1898, the Magistrate had a broad power
at the stage of committal which included the power to G
examine witnesses and to allow cross-examination. Such a
power is noticeably absent in the provisions of Section 209
of the CrPC. On the contrary, Section 209 makes it

33
Anna Reddy Sambvisa Reddy v. State of A.P, AIR 2009 SC 2661 H
1024 SUPREME COURT REPORTS [2021] 11 S.C.R.

A abundantly clear that when a case is instituted on the basis
of a police report or otherwise and it appears to the
Magistrate that the offence is triable exclusively by the Court
of Sessions, the Magistrate shall commit the case to the
Court of Sessions after complying with the provisions of
Section 207 or Section 208, as the case may be. The
B
circumstance to which the Magistrate has to apply their
mind is solely whether the offence is triable exclusively by
the Court of Sessions. Since the committing Magistrate does
not have wide discretionary powers to exercise at this stage
not exercising it would not cause any injustice to the parties;
C (ii) Gradation in irregularity of cognizance order under Sections
460 and 461-Under Sections 460 and 461, the order taking
cognizance based on a police report has been givena greater
standing as compared to an order taking cognizance based
on information received from any person other than a police
D officer or upon the own knowledge of the Magistrate, for
the specific purpose of deciding on the irregularity of the
order. The reason behind the gradation is because in the
former case, the Magistrate has material based on an
investigation by the police to ground his decision which may
be absent when cognizance is taken based on information
E by any other person. In this case, cognizance was taken
based on the SIT report. Therefore, the case squarely falls
under Section 190(b) of CrPC which under Section 460,
even if irregular would not vitiate the proceedings;
(iii) Objective of the MMDR Act: The appellants are accused
F of the commission of offences under the MMDR Act
involving the export and transportation of minerals without
permit. Offences under the MMDR Act are environmental
crimes. These crimes impact upon society at large.These
offences cause a detriment to and affect the well-being of
G the entire community. Environmental crime is not confined
within geographical or state limits. The impact of
environmental crime transcends borders and time.
Environmental crime may or may not have an immediately
identifiable human victim but there can be no mistaking its
consequence for the entire bio-system of which human
H beings are an intrinsic, but not the only, element.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1025
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Environmental crime is in essence a planetary crime – it A
affects every component of the natural systems with which
the planet has been endowed. They constitute our heritage;
a heritage which is held in trust by the present for the future.
Illegal mining denudes the eco-system of valuable
resources. The destruction of the natural environment has
B
serious consequences for the present and the future. The
MMDR Act must hence be construed in this perspective.
At one level, illegal mining deprives the state of its revenues.
But the law is not merely a revenue yielding or regulating
measure. The essence of the law is to protect human kind
and every species whose existence depends on natural C
resources from the destruction which is caused by rapacious
and unregulated mining. The offences which have been
taken into account by Parliament while enacting sub-sections
(1) and (1A) of Section 4 intrinsically affect the environment
which, in turn, affects the existence of communities who
D
depend on the environment and of every species to whom
it provides nurture and sustenance. It is because of the wide-
ranging impact of such offences on the life of the community
and on the well-being of not only the present, but of the
succeeding generations, that principles such as the
precautionary principle, the public trust doctrine and the E
concept of sustainable development have gained a sure
jurisprudential foundation. In environmental crime, there may
be no single, immediate victim. The act which predicates
the offence is a crime against humanity. These crimes might
not be perceived in the present to have immediate,
F
foreseeable or quantifiable repercussions but there is no
mistaking that they impact the life of future generations;
(iv) The Preamble of the Act at the time of its enactment
indicated that it is an “Act for regulation of mines and the
development of minerals”. This was substituted by Act 38
of 1999 to emphasise that the “Act provides for the G
development and regulation of mines and minerals”. The
amendment to the Preamble is indicative of the intent of
the legislature that development and regulation must proceed
hand-in-hand, and in order to reduce the increasing
magnitude of environmental crime, development needs to H
1026 SUPREME COURT REPORTS [2021] 11 S.C.R.

A be regulated and sustainable. Thus, when Parliament
amended the MMDR Act to include Section 30B in 2015
for the constitution of Special Courts which would be deemed
to be Courts of Session conferred with all requisite powers,
the object and purpose of the legislative provision must be
borne in mind. The ultimate object of the provision is to
B
ensure that violators are punished by a speedy process of
trial before a court duly constituted in that behalf; and
(v) The delay in the commencement of trial - The First
Information Report was registered on 9 October 2014 in
the first of the batch of cases in the present set of cases.
C The charge-sheet was submitted on 29 December 2015.
Between December 2015 and March 2017, the accused
participated in the proceedings. On 30 December 2015, the
Special Judge recorded that he had perused the final report
and that he was taking cognizance. Summons were directed
D to be issued to the accused. After cognizance was taken
on 30 December 2015, several proceedings took place
before 23rd Additional City Civil and Sessions Judge/Special
Judge, Bengaluru City including on 16 January 2016 when
some of the accused were admitted to bail. On 17 March
2017, arguments were addressed before the Special Judge
E by the Special Public Prosecutor on the charges. The High
Court was moved for quashing under Section 482 CrPC on
20 March 2017 at that stage. Significantly in the proceedings
before the High Court, no ground of challenge was
addressed on the basis of the submission (now urged before
F this Court) that in the absence of a committal order by the
Magistrate, the proceedings before the Special Judge
suffered for want of jurisdiction. The submission which has
been urged before this Court for the first time, purportedly
on the ground that a pure question of law is involved, cannot
efface the factual position that from the date of the
G submission of the charge sheet in 2015 until the filing of the
quashing petition on 20 March 2017, the accused participated
in the proceedings before the Special Judge and raised no
objection at any time either before the Special Judge or
before the High Court.Therefore, the challenge to the
H irregularity in taking cognizance was not made at the earliest.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1027
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Though it was made before the conclusion of the trial, the A
challenge after two years would still amount to a
considerable delay, when there were opportunities for it to
have been raised earlier.
C.3 Cognizance of the offence and not the offender
45. It is a well settled principle of law that cognizance as envisaged B
in Section 190 of the CrPC is of the offence and not of the offender. The
expression “cognizance of any offence” is consistently used in the
provisions of Sections 190, 191, 192 and 19334.
46. Section 193 of the old CrPC Code (of 1898) stated that Court
of Session shall not take cognizance of any offence unless the ‘accused C
has been committed’ to it by the Magistrate. However, Section 193 of
the CrPC 1973 states that cognizance of an offence shall be taken after
the ‘case has been committed’ to it by the Magistrate. A comparison of
the provisions in the Old and New Code is tabulated below:
D

E

(emphasis supplied)
47. In Kishun Singh v. State of Bihar35, the question before the
Court was whether the Court of Sessions to which a case has been F
committed to for trial by the Magistrate, can without recording evidence,
summon a person not named in the police report by exercise of its power
under Section 319 CrPC. The two judge Bench held that when a case is
committed to the Court of Sessions by the Magistrate under Section 209
G
34
"As a matter of fact, the expression “cognizance of any offence” is also used in
Section 195, 196, 197, 198, 198A, 198B, 199. Chapter 15 of the CrPC which governs
complaints of Magistrates also emphasises the principle that cognizance is of an offence.
The same principle, as we have seen earlier, is emphasised in Chapter 16 in which
Section 204(1) adverts to a Magistrate “taking cognizance of an offence”.
35
(1993) 2 SCC 16 H
1028 SUPREME COURT REPORTS [2021] 11 S.C.R.

A on the ground that it is exclusively triable by it, the Sessions Court would
have the power to take cognizance of the offence.36 It was thus held
that since cognizance is taken of the offence and not the accused, if any
material suggests the complicity of other persons in the offence, the
Court of Sessions can summon such other persons. The court, by drawing
a comparison between Section 193 of the Code of 1973 and the Code of
B
1898, and on a reading of Section 209 CrPC held that both the committal
and cognizance is of the offence and not the accused/offender.37 Justice
AM Ahmadi (as the learned Chief Justice then was) summarized the
position in law in the following observations:
“7. […] Section 190 of the Code sets out the different ways in
C which a Magistrate can take cognizance of an offence, that is to
say, take notice of an allegation disclosing commission of a crime
with a view to setting the law in motion to bring the offender to
book. Under this provision cognizance can be taken in three ways
enumerated in clauses (a), (b) and (c) of the offence alleged to
D have been committed. The object is to ensure the safety of a
citizen against the vagaries of the police by giving him the right to
approach the Magistrate directly if the police does not take action
or he has reason to believe that no such action will be taken by
the police. Even though the expression ‘take cognizance’ is not
defined, it is well settled by a catena of decisions of this Court
E that when the Magistrate takes notice of the accusations and
applies his mind to the allegations made in the complaint or police
report or information and on being satisfied that the allegations, if
proved, would constitute an offence decides to initiate judicial
proceedings against the alleged offender he is said to have taken
F cognizance of the offence. It is essential to bear in mind the fact
that cognizance is in regard to the offence and not the offender.
[…]
It may immediately be noticed that under the old provision a Court
of Session could not take cognizance of an offence as a court of
G
36
Also see, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC
492 (at 499, paragraphs 19 and 20); Fakhruddin Ahmad v. State of Uttaranchal, (2008)
17 SCC 157 (at 163, paragraph 17)
37
In arriving at the above conclusion, this Court in Kishun Singh affirmed the judgment
of a Full Bench of the Punjab High Court in SK Lutfur Rahman v. State:1985 PLJR 640:
H 1985 Cri LJ 1238(Pat HC) (FB)
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1029
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

original jurisdiction unless the accused was committed to it A
whereas under the recast section as it presently stands the
expression the accused has been replaced by the words the case.
As has been pointed out earlier, under Section 190 cognizance
has to be taken for the offence and not the offender; so also
under Section 193 the emphasis now is to the committal of the
B
case and no more on the offender. So also Section 209 speaks
of committing the case to the Court of Session. On a conjoint
reading of these provisions it becomes clear that while under the
old Code in view of the language of Section 193 unless an accused
was committed to the Court of Session the said court could not
take cognizance of an offence as a court of original jurisdiction; C
now under Section 193 as it presently stands once the case is
committed the restriction disappears.”
“16…Thus, on a plain reading of Section 193, as it presently stands
once the case is committed to the Court of Session by a Magistrate
under the Code, the restriction placed on the power of the Court D
of Session to take cognizance of an offence as a court of original
jurisdiction gets lifted. On the Magistrate committing the case
under Section 209 to the Court of Session the bar of Section 193
is lifted thereby investing the Court of Session complete and
unfettered jurisdiction of the court of original jurisdiction to take
cognizance of the offence which would include the summoning of E
the person or persons whose complicity in the commission of the
crime can prima facie be gathered from the material available on
record.”
48. In other words, upon the committal by the Magistrate, the
Court of Sessions is empowered to take cognizance of the whole of the F
incident constituting the offence. The Court of Sessions is thus invested
with the complete jurisdiction to summon any individual accused of the
crime. The above principles were reiterated in a two judge Bench decision
in State of W.B. v. Mohd. Khalid38. Justice S Mohan speaking for the
Court observed: G
“43.[…] Section 190 of the Code talks of cognizance of offences
by Magistrates. This expression has not been defined in the Code.
In its broad and literal sense, it means taking notice of an offence.

38
(1995) 1 SCC 684 H
1030 SUPREME COURT REPORTS [2021] 11 S.C.R.

A This would include the intention of initiating judicial proceedings
against the offender in respect of that offence or taking steps to
see whether there is any basis for initiating judicial proceedings or
for other purposes. The word ‘cognizance’ indicates the point
when a Magistrate or a Judge first takes judicial notice of an
offence. It is entirely a different thing from initiation of proceedings;
B
rather it is the condition precedent to the initiation of proceedings
by the Magistrate or the Judge. Cognizance is taken of cases and
not of persons.”
49. In Dharam Pal (supra), a Constitution Bench was deciding
on whether the Court of Sessions has the power under Section 193
C CrPC to take cognizance of the offence and then summon other persons
not mentioned as accused in the police report. The issue was referred to
a five-judge Bench in view of the conflicting decisions in Kishun Singh
(supra) and Ranjit Singh v. State of Punjab39. As discussed above,
while in Kishun Singh (supra),it was held that the Sessions Court held
D such a power under Section 193 CrPC, it was held in Ranjit Singh(supra)
that from the stage of committal till the Sessions Court reaches the stage
indicated in Section 230 CrPC, the Court could not arraign any other
person as the accused. Chief Justice Altamas Kabir, speaking for the
Constitution Bench affirmed the view in Kishun Singh (supra) on the
ground that the Magistrate before whom the final report is submitted
E has ample powers to disagree with the report filed by the police under
Section 173(2) and to proceed against the accused persons dehors the
police report. However, if the interpretation in Ranjit Singh (supra)
were to be followed, it would lead to an anomaly where the Sessions
Court would not have this power till the Section 319 stage is reached,
F which the Magistrate would otherwise have. In that context, the
Constitution Bench observed:
“35. In our view, the Magistrate has a role to play while committing
the case to the Court of Session upon taking cognizance on the
police report submitted before him under Section 173(2) CrPC.
G In the event the Magistrate disagrees with the police report, he
has two choices. He may act on the basis of a protest petition that
may be filed, or he may, while disagreeing with the police report,
issue process and summon the accused. Thereafter, if on being
satisfied that a case had been made out to proceed against the
39
H (1998) 7 SCC 149
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1031
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

persons named in column 2 of the report, proceed to try the said A
persons or if he was satisfied that a case had been made out
which was triable by the Court of Session, he may commit the
case to the Court of Session to proceed further in the matter.”
50. In RN Agarwal v. RC Bansal 40, a Special Judge took
cognizance of the offences punishable under Sections 120-B, 420, 468 B
and 471 IPC as well as Section 13(1)(d) of the Prevention of Corruption
Act. The Special Judge however, summoned the prosecution witnesses.
The prosecution witnesses approached the High Court under Section
482 CrPC seeking to quash the summons issued against them. The High
Court quashed the summons order passed by the Special Judge. This
C
Court allowed the appeal holding that the Special Judge in view of Sections
193 and 209, took cognizance of the offence and therefore had the power
to arraign other accused in the case based on the material available
before it at that stage.
51. It is evident from the discussion in Kishun Singh (supra) and
D
Dharam Pal (supra) that in view of the provisions of Section 193 CrPC,
cognizance is taken of the offence and not the offender. Thus, the
Magistrate or the Special Judge does not have the power to take
cognizance of the accused. The purpose of taking cognizance of the
offence instead of the accused is because the crime is committed against
the society at large. Therefore, the grievance of the State is against the E
commission of the offence and not the offender. The offender as an
actor is targeted in the criminal procedure to provide punishments so as
to prevent or reduce the crime through different methods such as
reformation, retribution and deterrence. Cognizance is thus taken against
the offence and not the accused since the legislative intent is to prevent
F
crime. The accused is a means to reach the end of preventing and
addressing the commission of crime.
52. In the factual matrix before us, the Special Judge by an order
dated 30 December 2015 referred to all the relevant material before
him, including the FIR and witness statements, before taking cognizance.
G
The question that arises is whether merely because the cognizance order
mentions that cognizance is taken against the ‘accused’, the entire
proceedings would be vitiated. The order taking cognizance inadvertently
mentioned that the Special Judge has taken cognizance against the
40
(2015) 1 SCC 48 H
1032 SUPREME COURT REPORTS [2021] 11 S.C.R.

A accused instead of the offence. This would not vitiate the entire
proceedings, particularly where material information on the commission
of the offence had been brought to the notice of and had been perused
by the Special Judge.
53. In order to prove that the irregularity vitiates the proceeding,
B the accused must prove a ‘failure of justice’ as prescribed under Section
465 CrPC. In view of the discussion in the previous section on the
applicability of Section 465 CrPC (and the inability to prove failure of
justice) to the cognizance order, the irregularity would not vitiate the
proceedings. Moreover, bearing in mind the objective behind prescribing
that cognizance has to be taken of the offence and not the offender, a
C mere change in the form of the cognizance order would not alter the
effect of the order for any injustice to be meted out.
C.4 Cognizance by the Special Court of offences under the
IPC

D 54. The appellant had raised a contention that even if the Special
Judge had the power to take cognizance of the offence, he could only
have taken cognizance of offences under the MMDR Act and could not
have taken cognizance (and conduct trial) of the offences under the
provisions of IPC. For this purpose, the counsel for the appellant referred
to Section 30B(1) of the MMDR Act which states that the State
E Government may for providing speedy trial of offences under Sections
4(1) or Section 4(1A) of the MMDR Act constitute Special Courts.
Section 30B(1) reads as follows:
“30B. Constitution of Special Courts.¯(1) The State Government
may, for the purposes of providing speedy trial of offences for
F contravention of the provisions of sub-section (1) or sub-section
(1A) of section 4, constitute, by notification, as many Special Courts
as may be necessary for such area or areas, as may be specified
in the notification.”
Section 4(1) of the MMDR Act states that no person shall
G undertake any reconnaissance, prospecting or mining operations without
any license or permit. Section 4(1A) states that no person can transport
or store material otherwise than in accordance with the provisions of
this Act. Section 4(1) and (1A) of the Act readas follows:
“4. Prospecting or mining operations to be under licence or
H lease.¯(1) [No person shall undertake any reconnaissance,
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1033
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

prospecting or mining operations in any area, except under and in A
accordance with the terms and conditions of a reconnaissance
permit or of a prospecting licence or, as the case may be, of a
mining lease, granted under this Act and the rules made
thereunder]:
Provided that nothing in this sub-section shall affect any prospecting B
or mining operations undertaken in any area in accordance with
terms and conditions of a prospecting licence or mining lease
granted before the commencement of this Act which is in force
at such commencement:
[Provided further that nothing in this sub-section shall apply to C
any prospecting operations undertaken by the Geological Survey
of India, the Indian Bureau of Mines, 6 [the Atomic Minerals
Directorate for Exploration and Research] of the Department of
Atomic Energy of the Central Government, the Directorates of
Mining and Geology of any State Government (by whatever name
called), and the Mineral Exploration Corporation Limited., a D
Government company within the meaning of 7 [clause (45) of
section 2 of the Companies Act, 2013 (18 of 2013), and any such
entity that may be notified for this purpose by the Central
Government]:]
[Provided also that nothing in this sub-section shall apply to any E
mining lease (whether called mining lease mining concession or
by any other name) in force immediately before the
commencement of this Act in the Union territory of Goa, Daman
and Diu.]
[(1A) No person shall transport or store or cause to be transported F
or stored any mineral otherwise than in accordance with the
provisions of this Act and the rules made thereunder.]”
55. It is contended by the appellant that the Special Court
established under a statute can try offences under the IPC (or any offence
other than the offences under the statute) only if expressly provided. To
G
buttress this argument, Section 4(3) of the PC Act, Section 14(1) of the
NIA Act, and Section 28(2) of the Protection of Children from Sexual
Offences Act 201241 were referred to. All the three provisions expressly
provide the Special Court with the power to try offences other than

41
"POCSO Act” H
1034 SUPREME COURT REPORTS [2021] 11 S.C.R.

A those offences specified in the Act. Section 4(3) of the PC Act reads as
follows:
“(3) When trying any case, a special Judge may also try any
offence, other than an offence specified in section 3, with which
the accused may, under the Code of Criminal Procedure, 1973 (2
B of 1974), be charged at the same trial.”
(emphasis supplied)
Section 14 of the NIA Act read as follows:
“14. Powers of Special Courts with respect to other
offences.—(1) When trying any offence, a Special Court may
C also try any other offence with which the accused may, under
the Code be charged, at the same trial if the offence is
connected with such other offence.
(2) If, in the course of any trial under this Act of any offence, it is
found that the accused person has committed any other offence
D under this Act or under any other law, the Special Court may
convict such person of such other offence and pass any sentence
or award punishment authorised by this Act or, as the case may
be, under such other law.”
(emphasis supplied)
E Section 28(2) of the POCSO Act provides the following:
“(2) While trying an offence under this Act, a Special Court
shall also try an offence [other than the offence referred to in
sub-section (1)], with which the accused may, under the Code of
Criminal Procedure,1973 (2 of 1974) be charged at the same trial.”
F (emphasis supplied)
56. In the case before us, the Special Judge took cognizance and
issued summons against the appellants for offences under Sections 409,
420 read with Section 120B IPC;Sections 21 and 23 read with Sections
4(1), 4(1A) of the MMDR Act; and Rule 165 read with Rule 144 of the
G Karnataka Forest Rules, 1969. According to the first schedule of the
CrPC, the offences under Sections 409 and 420 are triable by the
Magistrate of the First Class. Section 209 CrPC states that if it appears
to the Magistrate that the offence is triable exclusively by the Court of
Sessions, then he shall commit the case to the Court of Session. Section
2(hc) of the MMDR Act states that a Special Court constituted under
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1035
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Section 30 B(1) of the Act is deemed to be the Court of Sessions. A A
Special Court designated under the MMDR Act is a Court of Sessions
which is exclusively vested with the power to try offences under the
Act. While the offences under Sections 409 and 420 IPC are triable by
the Judicial Magistrate First Class42, the issue is whether the offences
under the IPC can be tried jointly with the offences under the MMDR
B
Act by the Special Court.
C.4.1 Joint trial and express repeal
57. At this juncture, it is relevant to take note of Section 220 CrPC.
Section 220 envisages situations when a person shall be tried for multiple
offences at one trial which reads as follows: C
“220. Trial for more than one offence.—(1) If, in one series of
acts so connected together as to form the same transaction, more
offences than one are committed by the same person, he may be
charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal D
breach of trust or dishonest misappropriation of property as
provided in sub-section (2) of section 212 or in sub-section (1) of
section 219, is accused of committing, for the purpose of facilitating
or concealing the commission of that offence or those offences,
one or more offences of falsification of accounts, he may be E
charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or
more separate definitions of any law in force for the time being
by which offences are defined or punished, the person accused
of them may be charged with, and tried at one trial for, each of F
such offences.
(4) If several acts, of which one or more than one would by itself
or themselves constitute an offence, constitute when combined a
different offence, the person accused of them may be charged
with, and tried at one trial for the offence constituted by such acts
G
when combined, and for any offence constituted by any one, or
more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the
Indian Penal Code (45 of 1860).”
42
"JMFC” H
1036 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 58. Section 409 IPC deals with the offence of Criminal breach of
trust by a public servant, banker, or agent, while Section 420 IPC deals
with cheating. Since both these offences are alleged to have been
committed in the course of the same transaction as the offences under
the MMDR Act, the situation is squarely covered by sub-section (1) of
Section 220 of CrPC. It now needs to be determined if Section 220
B
CrPC can be applied to proceedings before the Special Court constituted
under the MMDR Act.
59. Section 4(1) CrPC states that all offences under the IPC shall
be investigated and tried according to the provisions contained in the
CrPC. Section 4(2) states that all offences under any other law shall be
C
investigated and tried according to the same provisions, subject to any
other enactment that regulates the manner of investigation and trial.
Section 5 states that nothing in the Code shall affect any special law that
confers power, and jurisdiction, unless there is a specific provision to the
contrary. Section 30C of the MMDR Act stipulates that unless otherwise
D provided by the Act, the CrPC shall apply to the proceedings before the
Special Court. Section 30C reads as follows:
“30C. Special Courts to have powers of Court of Session.¯Save
as otherwise provided in this Act, the Code of Criminal
Procedure, 1973 (2 of 1974), shall apply to the proceedings
E before the Special Court and for the purpose of the provisions
of this Act, the Special Court shall be deemed to be a Court of
Session and shall have all powers of a Court of Session and the
person conducting a prosecution before the Special Court shall be
deemed to be a public prosecutor.”
F (emphasis supplied)
60. Therefore, on a combined reading of Sections 4 and 5 of CrPC
along with Section 30C of the MMDR Act, it is apparent that the
procedure prescribed under the Code shall be applicable to proceedings
before the Special Court unless the MMDR Act provides anything to
G the contrary. These provisions incorporate the principle of express repeal
– i.e., unless any provision of the CrPC is expressly repealed by the
provisions of the MMDR Act, the procedure prescribed under the CrPC
would apply to the proceedings before the Special Court. Provisions of
the PC Act, POCSO Act and NIA Act which expressly provide that the
Special Court may try offences under the statute along with other offences
H
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1037
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

is only clarificatory. It is settled law that while contextually interpreting A
a provision, reference to other statutes which are pari materia can be
made.43 However, since the provisions in the similar statute on combined
trial are only clarificatory, the reference to external aids offer no support
to the argument of the appellant.
61. It now needs to be determined if there is: B
(i) an express provision in the MMDR Act that provides that
Section 220 CrPC shall not be applicable; and
(ii) if (i) is in negative, then whether the MMDR Act by
necessary implication excludes the application of Section C
220 CrPC.
62. Since there is no express provision that excludes the application
of Section 220 CrPC, it needs to be examined if the MMDR Act has by
necessary implication excluded the application of Section 220 CrPC. In
this context, it needs to be determined if Section 30B of the MMDR Act D
while establishing the Special Court for offences under Section 4 of the
MMDR Act, by necessary implication excludes the application of Section
220 CrPC.
C.4.2 Joint trial and implied repeal
63. The general rule of construction is that there is a presumption E
against a repeal by implication because the legislature has full knowledge
of the existing law on the subject matter while enacting a law. When a
repealing provision is not specifically mentioned in the subsequent statute,
there is a presumption that the intention of the legislature was not to
repeal the provision. The burden to prove that the subsequent enactment F
has impliedly repealed the provision of an earlier enactment is on the
party asserting the argument. This presumption against implied repeal is
rebutted if the provision(s) of the subsequent Act are so inconsistent and
repugnant with the provision(s) of the earlier statute that the two provisions
cannot ‘stand together’.44 Therefore, the test to be applied for the
construction of implied repeal is as follows: Whether the subsequent G
statute (or provision in the subsequent statute) is inconsistent and

43
Harshad Mehta v. State of Maharashtra, (2010) 8 SCC 257
44
Harshad Mehta (n 40); Justice GP Singh, Principles of Statutory Interpretation (14th
ed. LexisNexis 2016) 737-738
H
1038 SUPREME COURT REPORTS [2021] 11 S.C.R.

A repugnant with the earlier statute (or provision in the earlier statute)
such that both the statutes (or provisions) cannot stand together. 45 The
test when applied in the context of this case is whether Section 30B of
the MMDR Act is inconsistent and repugnant to Section 220 CrPC that
both the provisions cannot go hand in hand.
B 64. This Court has in Municipal Council, Palai v. T.J Joseph46
indicated that the test applied for determination of repugnancy under
Article 254 of the Indian Constitution maybe applied to determine
repugnancy in the context of implied repeal as well. Justice Mudholkar
writing for a three judge Bench, followed the test that was laid down in
Deep Chand v. State of Uttar Pradesh47:
C
“10. […] (i) Whether there is direct conflict between the two
provisions;
(ii) Whether the legislature intended to lay down an exhaustive
code in respect of the subject-matter replacing the earlier law;
D
(iii) Whether the two laws occupy the same field.”
65. In the decision in Harshad Mehta v. State of Maharashtra48,
the issue before this Court was whether the Special Court established
under the Special Court (Trial of Offences relating to Transactions in
Securities) Act 1992 has the power to grant pardon as under Sections
E
306 and 307 CrPC49. Therefore, the question in essence was whether
Sections 306 and 307 CrPC apply to the proceedings before the Special
Court constituted under the Special Court Act 1992. Section 9(2) of the
Special Court Act 1992 stated that the provisions of the CrPC would be
applicable to the proceedings before the Special Court, unless the Special
F Court Act 1992 provides anything to the contrary. It was held by the
three judge Bench of this Court that there was no express provision (or
inference by necessary implication that can be made) excluding the
45
Also see, State of Orissa v. M/s M.A. Tulloch, AIR 1964 SC 1284; Syndicate Bank
v. Prabha D. Naik, (2001) 4 SCC 713; State of MP v. Kedia Leather & Liqour Limited,
G (2003) 7 SCC 389; Lal Shah Baba Dargah Trust v. Magnum Developers, (2015) 17 SCC
65;
46
AIR 1963 SC 1561.
47
(1959) 2 SCR 8
48
(2010) 8 SCC 257
49
Section 306 and 307 CrPC deal with the tendor of pardon by the Court to an
accomplice on the condition of making a full and complete disclosure of the circumstances
H of the offence to the best of his/her knowledge
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1039
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

applicability of Sections 306 and 307 CrPC to proceedings before the A
Special Court. One of the contentions raised by the counsel for the
appellant was that similar earlier enactments have expressly granted the
power to grant pardon to the Special Court constituted under the Act
and that when the legislature has deliberately omitted the inclusion of
the provision, it would mean that the power was not intended to be granted.
B
The counsel contended that the Special Court under the Act consists of
a Judge of the High Court, while Section 306 for the purpose of the
provision only enumerates categories of Magistrates. The Bench
observed that an express provision needs to be made in the subsequent
specific statute only when wider powers or no powers are intended to
be given: C
“38. It is understandable that if powers wider than the one
contemplated by the Code are intended to be conferred, a provision
to that effect will have to be made. It does not follow therefrom
that in an altogether different statute, if no special provision is
made, an inference can be drawn that even where the D
powers under the Code and not wide powers were intended
to be conferred, save and except where it is so stated
specifically, the effect of omission would be that the Special
Court will not have even similar powers as are exercised
by the ordinary criminal courts under the Code.”
E
(emphasis supplied)
Addressing the contention of the appellant that Section 306 uses
the term ‘Magistrate’, while the Special Court consists of High Court
judges, it was held that the statute and the Code need to be harmoniously
construed. On the argument that other statutes have an express provision F
providing the power to grant pardon, the court held that other statutes
are an external aid of interpretation and can be relied on only when it is
shown that the scheme of the two Acts is similar. The court in this
regard observed as follows:
“51. The Code has been incorporated in the Act by application of G
the doctrine of legislation by incorporation. The power to grant
pardon has not been denied expressly or by necessary implication.
As earlier stated after decision in the case of A.R. Antulay [(1984)
2 SCC 500 (p. 527, para 27) : 1984 SCC (Cri) 277] it was not
necessary to make specific provision in the Act conferring power
on the Special Court to grant pardon at trial or pre-trial stage. The H
1040 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Special Court is a court of original criminal jurisdiction and has all
the powers of such a court under the Code, including those of
Sections 306 to 308 of the Code, the same not having been
excluded specifically or otherwise.
52. There is no provision in the Act which negates the power of
B the Special Court to grant pardon. The Special Court has power
to grant pardon at any stage of the proceedings. The power under
Section 307 cannot be denied merely because no commitment of
the case is made to the Special Court. Learned Solicitor-General,
in our view, rightly contends that the other statutes are only an
external aid to the interpretation and to rely upon the omission of
C a provision which is contained in another different enactment, it
has to be shown that the two Acts are similar which is not the
position here. The scheme of the two Acts is substantially different
as has been earlier noticed by us. It is also evident from Fernandes
case [AIR 1968 SC 594: (1968) 1 SCR 695 : 1968 Cri LJ 550] as
D well.”
C.4.2.1 Section 30B of the MMDR Act and Section 220
CrPC- The question of implied repeal
66. Section 30B of the MMDR Act provides for the constitution
of the Special Court for ‘speedy trial of offences for contravention of
E the provisions’ of Section 4 of the Act. Does the fact that the Special
Court has jurisdiction to try offences under the MMDR Act oust the
jurisdiction of the Special Court to try offences under any other law (in
this case the IPC). As has been noted above, the provisions of the
Codemay be held to be impliedly repealed, only if there is a ‘direct conflict’
F between the provisions such that it is not possible to harmoniously
interpret the provisions. It thus needs to be analysed whether Section
30B of the MMDR Act and Section 220 CrPC can be harmoniously
construed.
67. The Judicial Magistrate First Class is invested with the authority
G to try offences under Sections 409 and 420 IPC. On the other hand, the
Sessions Judge is appointed as a Special Judge for the purposes of the
MMDR Act. If the offences under the MMDR Act and the IPC are
tried together by the Special Judge, there arises no anomaly, for it is not
a case where a judge placed lower in the hierarchy has been artificially
vested with the power to try the offences under both the MMDR Act
H and the Code. Additionally, if the offences are tried separately by different
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1041
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

fora though they arise out of the same transaction, there would be a A
multiplicity of proceedings and wastage of judicial time, and may result
in contradictory judgments. It is a settled principle of law that a
construction that permits hardship, inconvenience, injustice, absurdity
and anomaly must be avoided. Section 30B of the MMDR Act and
Section 220 CrPC can be harmoniously construed and such a construction
B
furthers justice. Therefore, Section 30B cannot be held to impliedly repeal
the application of Section 220 CrPC to the proceedings before the Special
Court.
C.5 Cognizance order and non-application of mind
68. The counsel for the appellant has contended that the order of C
the Special Judge taking cognizance has not sufficiently demonstrated
application of mind to the material placed before him. To substantiate
this contention, the appellant relied on the decisions in Pepsi Foods
Ltd. v. Special Judicial Magistrate50, Fakhruddin Ahmad v. State
of Uttaranchal 51 Mehmood Ul Rehman v. Khazir Mohammad
Tunda52, Sunil Bharti Mittal v. CBI53 and Ravindranatha Bajpe v. D
Bangalore Special Economic Zone Ltd.54. The respondent argued
that this Court has made a distinction on application of mind by the judge
for the purpose of taking cognizance based on a police report on the one
hand and a private complaint under Section 200 CrPC on the other, and
that the requirement of a demonstrable application of mind in the latter E
case is higher. For this purpose, the counsel relied on this Court’s decisions
in Bhushan Kumar v. State (NCT of Delhi)55 and State of Gujarat v.
Afroz Mohammed Hasanafatta56.
69. The decision of this Court in Pepsi Foods Ltd. (supra), arose
out of the institution of a complaint filed against the appellants under F
Section 7 read with Section 16 of the Prevention of Food Adulteration
Act 1964. The allegation in the complaint was that the appellants sold a
bottle of beverage which was adulterated. After recording primary
evidence, the Magistrate passed orders summoning the appellants. The

50
G
(1998) 5 SCC 749
51
(2008) 17 SCC 157
52
(2015) 12 SCC 420
53
(2015) 4 SCC 609
54
Criminal Appeal Nos. 1047-1048/2021
55
(2012) 5 SCC 424
56
(2019) 20 SCC 539 H
1042 SUPREME COURT REPORTS [2021] 11 S.C.R.

A appellants instituted proceedings before the High Court under Section
482 CrPC for quashing the summoning order and the proceedings. It
was in this backdrop, that while adverting to the procedure envisaged in
Chapter XV of the CrPC more particularly the provisions of Section
200, Justice DP Wadhwa speaking for a two judge Bench held:
B “12. […] One of the modes by which a court can take cognizance
of an offence is on filing of a complaint containing facts which
constitutes such offence. A Magistrate taking cognizance of an
offence on complaint shall examine upon oath the complainant
and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the
C complainant and the witnesses, and also by the Magistrate
(Sections 190 and 200 of the Code).”
Having noticed that proceeding had been initiated on the basis of
a complaint, this Court held:

D “28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his mind
E to the facts of the case and the law applicable thereto. He has to
examine the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and would
that be sufficient for the complainant to succeed in bringing charge
home to the accused. It is not that the Magistrate is a silent
F spectator at the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully
scrutinize the evidence brought on record and may even himself
put questions to the complainant and his witnesses to elicit answers
to find out the truthfulness of the allegations or otherwise and
then examine if any offence is prima facie committed by all or
G any of the accused.”
On the facts, the Court held that the allegations against the
appellants did not establish any offence under Section 7 of the Prevention
of Food Adulteration Act and there was no basis in the complaint to
make such allegation. Setting aside the order of the High Court, this
H Court accordingly quashed the complaint. The genesis of the decision in
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1043
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Pepsi Foods Ltd is founded on a complaint made to the Magistrate A
upon which steps had been initiated pursuant to the provision of Section
200 of the CrPC.
70. In Sunil Bharti Mittal (supra), the case before this Court
arose out of alleged irregularities in the grant of an additional Spectrum
in 2002. The case was being monitored by this Court. The CBI registered B
a case and after completion of the investigation filed a charge-sheet in
the court of the Special Judge. The CBI, among others, mentioned three
telecom companies as accused persons in respect of offences under
Section 13(2) read with 13(1)(d) of the PC Act and allied offences.
When the matter was taken up for the issuance of summons to the
accused persons, the Special Judge while recording satisfaction that there C
was enough incriminating material to proceed against the accused named
in the charge-sheet also found that three individuals, namely, the CMD,
MD and Director of the three telecom companies were an alter ego of
the respective companies. While taking cognizance of the cases, summons
were issued not only to the accused in the charge-sheet but to the D
aforesaid three persons as well. Two of them moved this Court. Justice
A K Sikri, while speaking for the three judge Bench, held that before
taking cognizance of an offence, the Magistrate should have applied his
mind to the case to satisfy himself that the allegations would constitute
an offence:
E
“48. Sine qua non for taking cognizance of the offence is the
application of mind by the Magistrate and his satisfaction that the
allegations, if proved, would constitute an offence. It is, therefore,
imperative that on a complaint or on a police report, the Magistrate
is bound to consider the question as to whether the same discloses
commission of an offence and is required to form such an opinion F
in this respect. When he does so and decides to issue process, he
shall be said to have taken cognizance. At the stage of taking
cognizance, the only consideration before the court remains to
consider judiciously whether the material on which the prosecution
proposes to prosecute the accused brings out a prima facie case G
or not.”
Justice Sikri observed that while the Magistrate is empowered to
issue process against a person who has not been charge-sheeted, there
has to be sufficient material in the police report showing his involvement.
The Court held that no such exercise was carried out by the Special H
1044 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Judge and in its absence, the order summoning the appellants could not
be sustained. The decision in Sunil Bharti Mittal (supra) arose out of
a police report but clearly involved a situation where appellants had not
been arraigned as accused in the charge-sheet. The Magistrate had
issued summons to them merely treating them to be an alter ego of the
company. This Court held that it was a wrong (and a ‘reverse’) application
B
of the principle of alter ego and that the order summoning them could
not be sustained.
71. In Mehmood Ul Rehman (supra), a complaint was filed by
the Respondent under Section 500 of the Ranbir Penal Code (in pari
materia to Section 500 of the IPC). The Magistrate passed the following
C order:
“4. […] Perused the complaint, and the statements recorded. In
the first instance of proceedings, let bail warrant to the tune of Rs
15,000 be issued against the alleged accused persons, with direction
to the accused persons to cause their appearance before this Court
D on 22-4-2007, to answer the material questions.”
The Respondent filed a petition before the High Court seeking to
quash the proceedings initiated by the Magistrate. The High Court rejected
the petition. Before this Court, a contention was raised that the Magistrate
had not applied his mind to the complaint to form an opinion on whether
E the allegations would constitute an offence. Relying on Pepsi Foods
Ltd.(supra), it was observed that the Magistrate ought to have applied
his mind to the allegations and must be satisfied that the facts alleged
would constitute an offence. The order of the Magistrate was set aside
by this Court on the ground that the order did not indicate an application
F of mind by the Magistrate. The facts in this case fall squarely within
Section 190(1)(a) CrPC since the Magistrate was only guided by the
complaint before him. Moreover, Justice Kurian Joseph, writing for the
two-judge Bench has clearly taken note of the difference between Section
190(1)(a) and 190(1)(b):

G “21. Under Section 190(1)(b) CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c) CrPC,
he has the information or knowledge of commission of an offence.
But under Section 190(1)(a) CrPC, he has only a complaint before
him. The Code hence specifies that “a complaint of facts which
constitute such offence”. Therefore, if the complaint, on the face
H of it, does not disclose the commission of any offence, the
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1045
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

Magistrate shall not take cognizance under Section 190(1)(a) A
CrPC. The complaint is simply to be rejected.”
72. In Fakruddin Ahmed (supra), a complaint was lodged before
the Judicial Magistrate alleging commission of offences under Sections
420, 467, 468 and 471 IPC. The Magistrate directed the police to register
the case and investigate it. The Magistrate thus, instead of following the B
procedure laid down under Section 200 or 202 CrPC, ordered that the
matter be investigated and a report be submitted under Section 173(2)
of the Code. Based on the police report, cognizance was taken by the
Magistrate. A two-judge Bench of this Court observed that the Magistrate
must apply his mind before taking cognizance of the offence. However,
no observation was made that the cognizance order based on a police C
report needs to be ‘well-reasoned’. On the facts of the case, the Court
held that since the cognizance order was not placed before the High
Court, it did not have the opportunity to review if the Magistrate had
applied his mind while taking cognizance. The matter was thus remanded
back to the High Court for it to peruse the documents and then decide D
the Section 482 petition afresh.
73. It must be noted that the decisions in Pepsi Foods Ltd. (supra)
and Mehmood Ul Rehman (supra) arose in the context of a private
complaint. Though the decision in Sunil Bharti Mittal (supra) arose
from a police report, it is evident from the narration of facts in the earlier E
part of this judgment that in that case, the charge-sheet had not named
the Chief Executive Officers of the Telecom Companies as accused.
The Magistrate, however, furnished the reason that the CEO was an
alter ego of the Telecom Company which, as this Court noted in its
judgment was a “reverse application” of the alter ego doctrine. Similarly,
the cognizance order in Fakruddin Ahmed (supra)was based on a police F
report. However, this Court remanded the case back to the High Court
for fresh consideration of the validity of the cognizance order and did
not review the Magistrate’s satisfaction before issuing the cognizance
order. Therefore, none of the above judgments referred to support the
contention of the appellant. Though all the above judgments mention G
that the Magistrate needs to apply his mind to the materials placed before
him before taking cognizance, they have been differentiated on facts
from the present case as unlike the present case where cognizance was
taken based on the SIT report, in those cases cognizance was taken
based on a complaint. The difference in the standard of proof for
application of mind with reference to cognizance based on a complaint H
1046 SUPREME COURT REPORTS [2021] 11 S.C.R.

A and police report has been briefly discussed in Mehmood Ul Rehman
(supra) and Fakruddin Ahmed (supra). A two-judge Bench of this
Court in Afroz Mohammed Hasanfatta (supra) laid down the law on
the difference of the standard of review of the application of mind by
the Judge while taking cognizance based on a police report and a private
complaint.
B
74. In Afroz Mohammed Hasanfatta (supra), a complaint was
filed by the Manager of a Bank against a Private Limited Company
alleging that in pursuance of a conspiracy, the Company was importing
rough and polished diamonds from the foreign market and selling them
in the local market. On verification, the bills of entry were found to be
C bogus. Based on the complaint, an FIR was registered for offences
under Sections 420, 465, 467, 468, 471, 477A and 120B of the Penal
Code. A charge-sheet was submitted under Section 173 CrPC against
two persons and the respondent was referred to as a suspect. A
supplementary charge-sheet was submitted inter alia against the
D respondent and based on it, cognizance was taken by the Magistrate.
The High Court set aside the order of the Chief Judicial Magistrate
taking cognizance. Justice Banumathi speaking for the two judge Bench
dealt with the issue as to whether while taking cognizance of an offence
under Section 190(1)(b) CrPC, the Court has to record reasons for its
satisfaction before the issuance of summons. Relying upon the decision
E in Pepsi Foods Ltd. (supra), it was urged by the accused that the order
for the issuance of process without recording reasons was correctly set
aside by the High Court. Moreover, it was urged that there was no
application of mind by the Magistrate. While distinguishing the decision
in Pepsi Foods Ltd. (supra) on the ground that it related to taking of
F cognizance in a complaint case, the court held since in a case of
cognizance based on a police report, the Magistrate has the advantage
of perusing the materials, he is not required to record reasons:
“23. Insofar as taking cognizance based on the police report is
concerned, the Magistrate has the advantage of the charge-sheet,
G statement of witnesses and other evidence collected by the police
during the investigation. Investigating officer/SHO collects the
necessary evidence during the investigation conducted in
compliance with the provisions of the Criminal Procedure Code
and in accordance with the rules of investigation. Evidence and
materials so collected are sifted at the level of the investigating
H officer and thereafter, charge-sheet was filed. In appropriate
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1047
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

cases, opinion of the Public Prosecutor is also obtained before A
filing the charge-sheet. The court thus has the advantage of the
police report along with the materials placed before it by the police.
Under Section 190(1)(b) CrPC, where the Magistrate has
taken cognizance of an offence upon a police report and
the Magistrate is satisfied that there is sufficient ground
B
for proceeding, the Magistrate directs issuance of process.
In case of taking cognizance of an offence based upon the
police report, the Magistrate is not required to record
reasons for issuing the process. In cases instituted on a
police report, the Magistrate is only required to pass an
order issuing summons to the accused. Such an order of C
issuing summons to the accused is based upon satisfaction of the
Magistrate considering the police report and other documents and
satisfying himself that there is sufficient ground for proceeding
against the accused. In a case based upon the police report, at the
stage of issuing the summons to the accused, the Magistrate is
D
not required to record any reason. In case, if the charge-sheet is
barred by law or where there is lack of jurisdiction or when the
charge-sheet is rejected or not taken on file, then the Magistrate
is required to record his reasons for rejection of the charge-sheet
and for not taking it on file.”
(emphasis supplied) E
75. The Special Judge, it must be noted, took cognizance on the
basis of a report submitted under Section 173 CrPC and not on the basis
of a private complaint. Therefore, the case is squarely covered by the
decision in Afroz Mohammed Hasanfatta (supra).The Special Judge
took note of the FIR, the witness statements, and connected documents F
before taking cognizance of the offence. In this backdrop, it would be
far-fetched to fault the order of the Special Judge on the ground that it
does not adduce detailed reasons for taking cognizance or that it does
not indicate that an application of mind. In the facts of this case, therefore,
the order taking cognizance is not erroneous. G
C.6 ‘Authorised person’ and Section 22 of MMDR Act
76. Section 22 of the MMDR Act stipulates that no Court shall
take cognizance of any offence punishable under this Act or Rules, except
upon a complaint made in writing by a person authorised on that behalf
by the Central or the State Government. It has been contended by the H
1048 SUPREME COURT REPORTS [2021] 11 S.C.R.

A appellant that before the Special Court (Sessions Court) took cognizance
of the offence, no complaint was filed by the authorised person.
77. In State (NCT of Delhi) v. Sanjay57, the principal question
which was formulated for the decision of a two judge Bench was whether
the Magistrate has the power to take cognizance of the offence upon a
B police report without a complaint from the authorised person under Section
22 of the MMDR Act. Justice MY Eqbal, delivering the judgment for
the two-judge Bench, held that Section 22 only bars the prosecution and
cognizance of offences for contravention of Section 4 of the MMDR
Act without a written complaint and not for offences under the provisions
of the IPC. The court also noted the object and policy underlying the
C MMDR Act in the context of environmental protection. The Court
observed:
“62. Sub-section (1-A) of Section 4 of the MMDR Act puts a
restriction in transporting and storing any mineral otherwise than
in accordance with the provisions of the Act and the Rules made
D thereunder. In other words no person will do mining activity without
a valid lease or licence. Section 21 is a penal provision according
to which if a person contravenes the provisions of sub-section (1-
A) of Section 4, he shall be prosecuted and punished in the manner
and procedure provided in the Act. Sub-section (6) has been
E inserted in Section 4 by amendment making the offence cognizable
notwithstanding anything contained in the Code of Criminal
Procedure, 1973. Section 22 of the Act puts a restriction on the
court to take cognizance of any offence punishable under the Act
or any Rule made thereunder except upon a complaint made by a
person authorised in this behalf. It is very important to note that
F Section 21 does not begin with a non obstante clause. Instead of
the words “notwithstanding anything contained in any law for the
time being in force no court shall take cognizance….”, the section
begins with the words “no court shall take cognizance of any
offence.
G […]
70. There cannot be any dispute with regard to restrictions imposed
under the MMDR Act and remedy provided therein. In any case,
where there is a mining activity by any person in contravention of
57
H (2014) 9 SCC 772
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1049
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

the provisions of Section 4 and other sections of the Act, the officer A
empowered and authorised under the Act shall exercise all the
powers including making a complaint before the Jurisdictional
Magistrate. It is also not in dispute that the Magistrate shall in
such cases take cognizance on the basis of the complaint filed
before it by a duly authorised officer. In case of breach and
B
violation of Section 4 and other provisions of the Act, the police
officer cannot insist the Magistrate for taking cognizance under
the Act on the basis of the record submitted by the police alleging
contravention of the said Act. In other words, the prohibition
contained in Section 22 of the Act against prosecution of a person
except on a complaint made by the officer is attracted only when C
such person is sought to be prosecuted for contravention of Section
4 of the Act and not for any act or omission which constitutes an
offence under the Penal Code.”
In view of the above discussion, the Court held: -
(i) The ingredients constituting an offence under the MMDR D
Act and the ingredients of the offences under the IPC are
distinct; and
(ii) For the commission of an offence under the IPC, on receipt
of a police report, the Magistrate having jurisdiction can
take cognizance without awaiting a complaint by the E
authorized officer. A complaint is required in terms of Section
22 only for taking cognizance in respect of a violation of
the provisions of the MMDR Act.
78. In Kanwar Pal Singh v. The State of Uttar Pradesh58, a
two judge Bench has followed the earlier decision in Sanjay (supra). In F
Jayant v. The State of Madhya Pradesh59, the appeal before this
Court arose from a decision of the High Court rejecting the application
under Section 482 CrPC for quashing FIRs alleging the commission of
offences under Sections 379 and 414 IPC, Sections 4/21 of the MMDR
Act and Rule 18 of the M.P. Minerals (Prevention of illegal Mining, G
Transportation and Storage) Rules, 2006. The JMFC, taking note of the
information and the decision of this Court in Sanjay (supra) exercised
powers under Section 156(3) CrPC and directed the registration of a
58
(2020) 14 SCC 331
59
(2021) 2 SCC 670 H
1050 SUPREME COURT REPORTS [2021] 11 S.C.R.

A criminal case for investigation. FIRs were registered on the basis of the
order passed by the Magistrate. The High Court was moved under
Section 482 CrPC for quashing the FIRs on the basis of the bar contained
in Section 22 of the MMDR Act. The petitions for quashing were
dismissed on the basis of the decision in Sanjay (supra). After adverting
to the decision in Sanjay (supra), Justice MR Shah, speaking for a two-
B
judge Bench of this Court, noted that the prohibition contained in Section
22 of the MMDR Act against the prosecution of a person except on a
written complaint of the authorised officer is attracted only when the
prosecution is for contravention of Section 4 of the MMDR Act and
would not apply in respect of an act or omission which constitutes an
C offence under Penal Code. The court observed that the bar under Section
22 of the Act kicks in with regard to the offence under Section 4 of the
MMDR Act only when the Magistrate purports to take cognizance of
the offence and not when the Magistrate orders further investigation
under Section 156(3) CrPC. Referring a complaint for investigation under
Section 156(3) would be at the pre-cognizance stage. Justice M R Shah
D
observed: -
“16…Therefore, when an order is passed by the Magistrate for
investigation to be made by the police under Section 156(3) of the
Code, which the learned Magistrate did in the instant case, when
such an order is made the police is obliged to investigate the case
E and submit a report under Section 173(2) of the Code. That
thereafter the investigating officer is required to send report to
the authorised officer and thereafter as envisaged under Section
22 of the MMDR Act the authorised officer as mentioned in
Section 22 of the MMDR Act may file the complaint before the
F learned Magistrate along with the report submitted by the
investigating officer and at that stage the question with respect to
taking cognizance by the learned Magistrate would arise.”
The conclusions which were arrived at by the Court were as
follows:
G “21.1. That the learned Magistrate can in exercise of powers under
Section 156(3) of the Code order/direct the In-charge/SHO of
the police station concerned to lodge/register crime case/FIR even
for the offences under the MMDR Act and the Rules made
thereunder and at this stage the bar under Section 22 of the
H MMDR Act shall not be attracted.
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1051
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

21.2. The bar under Section 22 of the MMDR Act shall be A
attracted only when the learned Magistrate takes cognizance of
the offences under the MMDR Act and the Rules made thereunder
and orders issuance of process/summons for the offences under
the MMDR Act and the Rules made thereunder.
21.3. For commission of the offence under IPC, on receipt of the B
police report, the Magistrate having jurisdiction can take cognizance
of the said offence without awaiting the receipt of complaint that
may be filed by the authorised officer for taking cognizance in
respect of violation of various provisions of the MMDR Act and
the Rules made thereunder.
21.4. That in respect of violation of various provisions of the C
MMDR Act and the Rules made thereunder, when a Magistrate
passes an order under Section 156(3) of the Code and directs the
In-charge/SHO of the police station concerned to register/lodge
the crime case/FIR in respect of the violation of various provisions
of the Act and the Rules made thereunder and thereafter after D
investigation the In-charge of the police station/investigating officer
concerned submits a report, the same can be sent to the Magistrate
concerned as well as to the authorised officer concerned as
mentioned in Section 22 of the MMDR Act and thereafter the
authorised officer concerned may file the complaint before the
learned Magistrate along with the report submitted by the E
investigating officer concerned and thereafter it will be open for
the learned Magistrate to take cognizance after following due
procedure, issue process/summons in respect of the violations of
the various provisions of the MMDR Act and the Rules made
thereunder and at that stage it can be said that cognizance has F
been taken by the learned Magistrate.
21.5. In a case where the violator is permitted to compound the
offences on payment of penalty as per sub-section (1) of Section
23-A, considering sub-section (2) of Section 23-A of the MMDR
Act, there shall not be any proceedings or further proceedings
G
against the offender in respect of the offences punishable under
the MMDR Act or any Rules made thereunder so compounded.
However, the bar under sub-section (2) of Section 23-A shall not
affect any proceedings for the offences under IPC, such as,
Sections 379 and 414 IPC and the same shall be proceeded with
further.” H
1052 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 79. The Government of Karnataka issued a notification on 21
January 2014 in exercise of powers under Sections 21(3), 21(4) and 22
of the MMDR Act 1957 and Rules 43(3) and 46 of the Karnataka Minor
Mineral Concession Rules 1994. The notification authorized officers/
authorities for the purpose of Section 22. The text of the authorization is
extracted below:
B

C

D

E

F

G

(emphasis supplied)
80. The Government of Karnataka issued a notification on 29
May 2014 declaring that the Office of the Inspector General of Police,
H Special Investigation Team, Karnataka Lokayukta shall be a ‘police
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1053
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

station’ for the purpose of Section 2(s) and shall have jurisdiction A
throughout the State of Karnataka for offences related to the illegal
mining of minerals. The FIR was filed by the SIT, Lokayukta pursuant
to the Order of this Court dated 16 September 2013 and was signed by
the Sub-inspector of Police, Karnataka Lokayukta. On a reading of the
notification dated 29 May 2014, it is evident that the SIT has the
B
jurisdiction throughout Karnataka in relation to mining offences. S.No.
13 of the Notification dated 21 January 2014 authorizes the ‘Sub-inspector
of Police’ within its jurisdiction for the purpose of Section 22 of the
MMDR Act. Therefore, on a combined reading of both the notifications,
it is clear as day light that the complaint filed by SIT and signed by the
Sub-Inspector of Police has complied with Section 22 of the MMDR C
Act.
C.7 Vicarious liability and Section 23 of MMDR Act
81. A-1 submitted that the charge-sheet does not ascribe any role
to A-1 and hence the process initiated against him must be quashed. The
appellants in support of their argument relied on Sunil Bharati Mittal D
(supra), Shiva Kumar Jatia v. NCT of Delhi60, Sunil Sethi v. State
of Andhra Pradesh 61 and Ravindranatha Bajpe v. Mangalore
Special Economic Zone Ltd.62 In Sunil Bharati Mittal (supra), a
three-judge Bench of this Court observed that the general rule is that
criminal intent of a group of people who undertake business can be E
imputed to the Company but not the other way around. Only two
exceptions were provided to this general rule: (i) when the individual has
perpetuated the commission of offence and there is sufficient evidence
on the active role of the individual; and (ii) the statute expressly
incorporates the principle of vicarious liability. Justice Sikri writing for a
three-judge Bench observed: F

“43. Thus, an individual who has perpetrated the commission of
an offence on behalf of a company can be made an accused,
along with the company, if there is sufficient evidence of his active
role coupled with criminal intent. Second situation in which he
can be implicated is in those cases where the statutory regime G
itself attracts the doctrine of vicarious liability, by specifically
incorporating such a provision.
60
(2019) 17 SCC 193
61
(2020) 3 SCC 240
62
2021 SCC OnLine 806 H
1054 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 44. When the company is the offender, vicarious liability of the
Directors cannot be imputed automatically, in the absence of any
statutory provision to this effect. One such example is Section
141 of the Negotiable Instruments Act, 1881. In Aneeta
Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd.,
(2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri)
B
241] , the Court noted that if a group of persons that guide the
business of the company have the criminal intent, that would be
imputed to the body corporate and it is in this backdrop, Section
141 of the Negotiable Instruments Act has to be understood. Such
a position is, therefore, because of statutory intendment making it
C a deeming fiction. Here also, the principle of “alter ego”, was
applied only in one direction, namely, where a group of persons
that guide the business had criminal intent, that is to be imputed to
the body corporate and not the vice versa. Otherwise, there has
to be a specific act attributed to the Director or any other person
allegedly in control and management of the company, to the effect
D
that such a person was responsible for the acts committed by or
on behalf of the company.”
Shiva Kumar Jatia (supra), Sunil Sethi (supra) and
Ravindranatha Bajpe (supra) also rely on this observation made in
Sunil Bharati Mittal (supra).
E
82. Section 23(1) of the MMDR Act stipulates that where the
offence has been committed by a company, every person who at the
time of the commission of the offence was in-charge of and responsible
for the conduct of business shall be deemed to be guilty of the offence.
The proviso stipulates that nothing contained in sub-section (1) shall render
F such a person liable to punishment, if he proves that the offence was
committed without his knowledge or that he exercised all due diligence
of preventing the commission of the offence.
83. In SMS Pharmaceuticals v. Neeta Bhalla63, a three-judge
Bench while construing the provisions of Section 141 of the Negotiable
G Instruments Act 1881, which are in pari materia with Section 23 of the
MMDR Act has noted that the position of a Managing Director or a
Joint Managing Director of a company is distinct since persons occupying
that position are in charge of and responsible for the conduct of the
business. It was observed that though there is a general presumption
63
H (2005) 8 SCC 89
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1055
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

that the Managing Director and Joint Managing Director are responsible A
for the criminal act of the company, the director will not be held liable if
he was not responsible for the conduct of the company at the time of
commission of the offence. The Court observed:
“9. The position of a managing director or a joint managing director
in a company may be different. These persons, as the designation B
of their office suggests, are in charge of a company and are
responsible for the conduct of the business of the company. In
order to escape liability such persons may have to bring their case
within the proviso to Section 141(1), that is, they will have to prove
that when the offence was committed they had no knowledge of
the offence or that they exercised all due diligence to prevent the C
commission of the offence.
[…]
Every person connected with the company shall not fall within
the ambit of the provision. It is only those persons who were in
D
charge of and responsible for the conduct of business of the
company at the time of commission of an offence, who will be
liable for criminal action. It follows from this that if a director of a
company who was not in charge of and was not responsible for
the conduct of the business of the company at the relevant time,
will not be liable under the provision. The liability arises from E
being in charge of and responsible for the conduct of business
of the company at the relevant time when the offence was
committed and not on the basis of merely holding a designation
or office in a company. Conversely, a person not holding any
office or designation in a company may be liable if he satisfies the
F
main requirement of being in charge of and responsible for the
conduct of business of a company at the relevant time.”
(emphasis supplied)
The same principle has been followed by a Bench of two judges
in Mainuddin Abdul Sattar Shaikh v. Vijay D Salvi64 :
G
“12. The respondent has adduced the argument that in the
complaint the appellant has not taken the averment that the accused
was the person in charge of and responsible for the affairs of the
Company. However, as the respondent was the Managing Director
64
(2015) 9 SCC 622 H
1056 SUPREME COURT REPORTS [2021] 11 S.C.R.

A of M/s Salvi Infrastructure (P) Ltd. and sole proprietor of M/s
Salvi Builders and Developers, there is no need of specific
averment on the point. This Court has held in National Small
Industries Corpn. Ltd. v. Harmeet Singh Paintal [(2010) 3 SCC
330 : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri) 1113] , as
follows : (SCC p. 346, para 39)
B
“39. (v) If the accused is a Managing Director or a Joint
Managing Director then it is not necessary to make specific
averment in the complaint and by virtue of their position they are
liable to be proceeded with.”
C 84. The test to determine if the Managing Director must be charged
for the offence committed by the Company is to determine if the conditions
in Section 23 of the MMDR Act have been fulfilled i.e., whether the
individual was in-charge of and responsible for the affairs of the company
during the commission of the offence. In view of the above decisions,
the submissions which has been urged on behalf of the appellant cannot
D be acceded to. The determination of whether the conditions stipulated in
Section 23 of the MMDR Act have been fulfilled is a matter of trial.
Moreover, it is evident that the charge sheet, as a matter of fact, ascribes
a role to A-1 and A-2 for the payment of transportation. Therefore,
there is a prima facie case against A-1, which is sufficient to arraign
E him as an accused at this stage.
D. The Conclusion
85. In view of the discussion above, we summarise our findings
below:

F (i) The Special Court does not have, in the absence of a
specific provision to that effect, the power to take cognizance
of an offence under the MMDR Act without the case being
committed to it by the Magistrate under Section 209 CrPC.
The order of the Special Judge dated 30 December 2015
taking cognizance is therefore irregular;
G
(ii) The objective of Section 465 is to prevent the delay in the
commencement and completion of trial. Section 465 CrPC
is applicable to interlocutory orders such as an order taking
cognizance and summons order as well. Therefore, even if
the order taking cognizance was irregular, it would not vitiate
H the proceedings in view of Section 465 CrPC;
PRADEEP S. WODEYAR v. THE STATE OF KARNATAKA 1057
[DR. DHANANJAYA Y CHANDRACHUD, J. ]

(iii) The decision in Gangula Ashok (supra) was distinguished A
in Rattiram (supra) based on the stage of trial. This
differentiation based on the stage of trial must be read with
reference to Section 465(2) CrPC. Section 465(2) does not
indicate that it only covers challenges to pre-trial orders
after the conclusion of the trial. The cardinal principle that
B
guides Section 465(2) CrPC is that the challenge to an
irregular order must be urged at the earliest. While
determining if there was a failure of justice, the Courts ought
to address it with reference to the stage of challenge, the
seriousness of the offence and the apparent intention to
prolong proceedings, among others; C
(iv) In the instant case, the cognizance order was challenged
by the appellant two years after cognizance was taken. No
reason was given to explain the inordinate delay. Moreover,
in view of the diminished role of the committal court under
Section 209 of the Code of 1973 as compared to the role of D
the committal court under the erstwhile Code of 1898, the
gradation of irregularity in a cognizance order made in
Sections 460 and 461 and the seriousness of the offence,
no failure of justice has been demonstrated;
(v) It is a settled principle of law that cognizance is taken of E
the offence and not the offender. However, the cognizance
order indicates that the Special Judge has perused all the
relevant material relating to the case before cognizance was
taken. The change in the form of the order would not alter
its effect. Therefore, no ‘failure of justice’ under Section
465 CrPC is proved. This irregularity would thus not vitiate F
the proceedings in view of Section 465 CrPC;
(vi) The Special Court has the power to take cognizance of
offences under MMDR Act and conduct a joint trial with
other offences if permissible under Section 220 CrPC. There
is no express provision in the MMDR Act which indicates G
that Section 220 CrPC does not apply to proceedings under
the MMDR Act;
(vii) Section 30B of the MMDR Act does not impliedly repeal
Section 220 CrPC. Both the provisions can be read
harmoniously and such an interpretation furthers justice and H
1058 SUPREME COURT REPORTS [2021] 11 S.C.R.

A prevents hardship since it prevents a multiplicity of
proceedings;
(viii) Since cognizance was taken by the Special Judge based on
a police report and not a private complaint, it is not obligatory
for the Special Judge to issue a fully reasoned order if it
B otherwise appears that the Special Judge has applied his
mind to the material;
(ix) A combined reading of the notifications dated 29 May 2014
and 21 January 2014 indicate that the Sub-Inspector of
Lokayukta is an authorized person for the purpose of Section
C 22 of the MMDR Act. The FIR that was filed to overcome
the bar under Section 22 has been signed by the Sub-
Inspector of Lokayukta Police and the information was
given by the SIT. Therefore, the respondent has complied
with Section 22 of the MMDR Act; and

D (x) The question of whether A-1 was in-charge of and
responsible for the affairs of the company during the
commission of the alleged offence as required under the
proviso to Section 23(1) of the MMDR Act is a matter for
trial. There appears to be a prima facie case against A-1,
which is sufficient to arraign him as an accused at this stage.
E
86. For the reasons above, we find no merit in the appeals. The
appeals shall accordingly stand dismissed.
87. Pending application(s), if any, shall stand disposed of.

F
Ankit Gyan Appeals dismissed.

G

H