K. V. N. GOVINDARAJU vs CENTRAL BUREAU OF INVETIGATION
- Court
- Karnataka High Court
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CRL.P No. 101445 of 2022
c/w CRL.P No. 101448 of 2022
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
R
TH
DATED THIS THE 30 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRIMINAL PETITION NO.101445 OF 2022
C/W
CRIMINAL PETITION NO.101448 OF 2022
IN CRL.P. NO.101445 OF 2022
BETWEEN:
K. V. N. GOVINDARAJU,
S/O. LATE GOPAL SHETTY KORAGAL,
AGE. 45 YEARS, OCC. BUSINESS,
TH
R/O. 8 CROSS M.J. NAGAR,
GEETA GOPAL MANSION,
HOSAPETE-583201,
VIJAYANAGAR.
…PETITIONER
(BY SRI. C.V. NAGESH, SENIOR COUNSEL FOR
SRI. K.L. PATIL, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION,
EOB, ECONOMIC OFFENCES WING
RAJAJI BHAVAN CHENNAI-600090,
REP. BY INSPECTOR OF POLICE.
…RESPONDENT
(BY SRI N.D. GUNDE, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C., PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN
CC NO.408/2020 ON THE FILE OF CIVIL JUDGE AND JMFC,
ANKOLA (RC NO.17(E)2013/CBI/EOB/CHENNAI) FOR THE
OFFENCES PUNISHABLE UNDER SECTION 120-B, R/W SECTION
420, 379, 411, 419, 427, 447 OF IPC, AND SECTION 24 OF
Digitally
signed by
PRAMILA G V
Location:
HIGH COURT
OF
KARNATAKA
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CRL.P No. 101445 of 2022
c/w CRL.P No. 101448 of 2022
FOREST ACT, IN SO FAR THE PRESENT THE
PETITIONER/ACCUSED NO.5 IS CONCERNED.
IN CRL.P. NO.101448 OF 2022
BETWEEN:
K. V. N. GOVINDARAJ,
S/O. LATE GOPAL SHETTY KORAGAL,
AGE. 45 YEARS, OCC. BUSINESS,
TH
R/O. 8 CROSS, M.J. NAGAR,
GEETA GOPAL MANSION, HOSAPTE-583201,
VIJAYANGAR.
…PETITIONER
(BY SRI. C.V. NAGESH, SENIOR COUNSEL FOR
SRI. K.L. PATIL, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION,
EOB, ECONOMIC OFFENCES WING,
RAJAJI BHAVAN CHENNAI-600090,
REP. BY INSPECTOR OF POLICE.
…RESPONDENT
(BY SRI. N.D. GUNDE, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CRIMINAL PROCEEDINGS
IN CC NO.410/2020 ON THE FILE OF CIVIL JUDGE AND JMFC,
ANKOLA (RC NO.14(E)2013/CBI/EOW/ CHENNAI) FOR THE
OFFENCES PUNISHABLE UNDER SECTION 120-B, R/W SECTION
411 OF IPC, AND IN SO FAR THE PRESENT THE
PETITIONER/ACCUSED NO.3 IS CONCERNED.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
TH
FOR ORDERS ON 13 AUGUST, 2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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CRL.P No. 101445 of 2022
c/w CRL.P No. 101448 of 2022
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CAV ORDER
In a petition assailing the order taking cognizance
of an offence, on the ground that the order is invalid for
want of reasons or application of mind, can the Court
supplement the reasons for the order taking cognizance?
Or,
Should the Court invariably remit the matter to the
Court of first instance fresh consideration?- are the
questions that arise for consideration.
2. The Criminal Petition No.101445/2022 is filed by
the petitioner No.5 to quash the proceedings in
C.C.No.408/2020 on the file of JMFC, Ankola.
3. The offences alleged are under Section 120B, read
with Sections 420, 379, 411, 419, 427, 447 of Indian Penal
Code, 1860 (“IPC”) and Section 24 of the Forest Act, 1963
(“Act, 1963”).
4. The Criminal Petition No. 101448/2022 is filed by
the petitioner/accused No.5 to quash the proceedings in
C.C.No.410/2020 on the file of JMFC, Ankola.
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c/w CRL.P No. 101448 of 2022
5. The offences alleged are under Section 120B, read
with 411 of Indian Penal Code, 1860 (“IPC”) and Section 24 of
the Forest Act, 1963 (“Act, 1963”).
6. The respondent-Central Bureau of Investigation
(CBI) contends that the Apex Court in Writ Petition No.
562/2009 vide order dated 07.09.2012 directed a preliminary
enquiry relating to 32.27 lakhs tonnes of iron ore exported
from 01.01.2009 to 31.05.2010 from Belekeri port.
7. Based on the materials gathered in the preliminary
enquiry, an application is filed at I.A.No.189/2013 in W.P(c)
No.562/2009 seeking permission to proceed further.
Accordingly on 16.09.2013, the Apex Court, permitted the CBI
to register criminal cases against the exporters who exported
more than 50,000 metric tonnes of iron ore without valid
permit.
8. Accordingly, two FIRs have been registered and
after investigation two charge sheets have been filed.
9. It is relevant to notice that the charge sheets in
both cases are relating to illegal excavation and export of iron
ores for the same period, the quantity of iron ores varies and
the firms which carried out the transactions are different.
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10. In C.C. No. 408/2020 on the file of JMFC Ankola the
allegation is that M/s Greentex Mining Industries ltd. has no
mining lease in the State of Karnataka or any other place in the
country. It is alleged that accused No.4 and the petitioner
created fictitious firms to procure illegally excavated iron ores
from various mines and supplied such ores to various
traders/exporters. That the invoices of various fictious firms
were signed by Jakeer Shareef at the behest of accused No.4
and the petitioner.
11. It is also alleged that the petitioner along with other
accused created fictitious firms like M/s Siddeshwara Traders,
M/s Tirumala Mineral and Trading Company, M/S Shafia
Minerals Hospet, M/S Ganesh Minerals Hospet, M/S Divakara
Minerals Company Sindhnuru and used such fictious firms for
illegal transportation of iron ores and one of such fake firms
was controlled by accused No.4 and the petitioner.
12. It is also alleged that money received from the said
transactions were withdrawn in the form of self cheque by
Jakeer Shareef and amount is paid to accused No.4 and the
petitioner.
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13. The further allegation is, 1,65,710 metric tones of
iron ore fines exported by M/s Greentex Mining Industries
Limited without bulk permits/trip sheets. It is alleged false
invoices have been created by accused No.4 and 5 in respect of
1,65,710 metric tones of iron ores.
14. It is alleged that 1,48,653.410 metric tonnes of iron
ores were illegally mined by trespassing into the property for
which there was no permit to mine, and illegally exported
without permit and substantial portion of the ores were illegally
mined from the forest in Ballari and other places in Karnataka.
15. It is further alleged that M/s Greentex Mining
Industries stole the natural resource/iron ores and illegally
exported the same without paying royalty and tax.
16. In so far as C.C.No.410/2020 which is subject
matter of Crl.P.No.101448/2022 is concerned, the respondent–
CBI claims that accused No.5/petitioner is one of the Directors
of M/s Swastik Steel (Hospet) Pvt Ltd. and accused No.1 to 3
are the remaining Directors of the said Company.
17. The allegation is, the accused have stolen the iron
ores by excavating the same without valid authority and have
exported the same without permit and have created fake
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permits and have evaded payment of royalty and the forest
tax. The petitioner in Crl.P.101448/2022 along with other
accused have been charge sheeted for the offence under
Section 411 of IPC read with Section 120-B of IPC.
18. The respondent alleges that total loss caused is
approximately around Rs.15,62,38,059.78/-. It is further
alleged that while committing the aforementioned the illegal
acts the accused have created several fictitious documents with
an intention to cheat.
19. Learned Senior Counsel for the petitioner submitted
that the order taking cognizance is not a speaking order and no
reason is forthcoming for passing the order taking cognizance
and the order is passed without application of mind.
20. In addition the learned senior counsel would urge
that the FIR is registered on 29.10.2013 and the cognizance is
taken in 2020 and the order taking cognizance is beyond the
prescribed period of limitation.
21. It is also urged that charge sheet materials do not
disclose anything against the petitioner and the petitioner’s role
in the alleged activity is also not forthcoming and the petitioner
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is not named in the complaint as such the cognizance could not
have been taken against the petitioner.
22. The learned counsel for the respondent/CBI would
submit that the Apex Court vide order dated 16.09.2013
permitted the registration of FIR and the CBI registered the FIR
on 29.10.2013. Thereafter, investigation is carried out and
based on credible materials collected during investigation, the
charge sheet is filed in both cases.
23. It is urged that as the charge sheet materials reveal
cognizable offence. The magistrate after having gone through
the materials placed on record, took cognizance for the
offences in both the cases.
24. Learned Senior counsel appearing for the petitioner
to urge the contention that order taking cognizance and
summoning the accused must reflect application of mind relied
on the following judgments of the Apex Court.
(i) GHCL employees Stock Option Trust vs. India
1
Infoline Limited
2
Sunil Bharati Mittal vs. CBI
(ii)
3
(iii) Mallikarjuna and Another vs State of Karnataka
1
(2013) 4 SCC 505
2
(2015) 4 SCC 609
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Shariff Ahmed and Another vs State of Uttar
(iv)
4
Pradesh and Another
5
(v) Sujay Ghosh vs State of Jharkhand and Another
25. Learned Senior counsel to contend that the order
taking cognizance beyond prescribed period of limitation is bad
in law relied on the judgment of the Apex Court in Sara
6
Mathew vs Institute of Cardio Vascular Diseases and the
7
judgment in Roma Ahuja vs State and Another .
26. Responding to the citations submitted by the
learned Senior Counsel, the learned counsel for the
respondent-CBI relied on the judgment of the Apex Court in
8
Arun Vyas and Another vs Anita Vyas , State of HP vs
9
Tara Dutt and Another and the judgment of the Apex Court
in A. Kaliyaperumal vs Superintendent of Police,
10
Cuddalore and Another
27. The Court has considered the contentions raised at
the Bar and perused the records.
3
ILR 2018 KAR 354
4
(2024) 14 SCC 122
5
(2026) SCC OnLine 454
6
(2014) 2 SCC 62
7
(2026) SCC OnLine 557
8
(1999) 4 SCC 690
9
(2000) 1 SCC 230
10
(2024) SCC OnLine Madras 4279
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28. Though there is no specific prayer to set aside the
orders dated 06.10.2020 and 24.11.2020, taking note of the
prayer to quash the proceedings, and the grounds urged in the
petitions, ignoring the technicality, the Court has considered
the contentions to quash the orders dated 06.10.2020 and the
order dated 24.11.2020.
29. The Code of Criminal Procedure, 1973 (Code, 1973)
(or even Bharatiya Nagarika Suraksha Sanhita, 2023) does not
provide the format of the order taking cognizance. However,
the order taking cognizance based on police report, should
reflect the application of mind on the materials placed before
the Court, though need not contain elaborate reasons, is the
settled position of law.
30. Referring to the said settled position learned senior
counsel urged that the impugned orders have to be set aside
and the proceedings have to be quashed. In the alternative it is
urged that the matter has to be remitted to the Magistrate for
fresh consideration.
31. The Court has considered the contentions raised at
the Bar and perused the records.
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On the order taking cognizance, lack of reasons or non
application of mind .
32. If the order taking cognizance, based on the police
report does not reflect reasons or disclose the application of
mind by the Court, the easiest recourse is to set aside the
order taking cognizance and to remand the matter to the Court
of first instance for fresh consideration.
33. The question however is, in such situation where
the application of mind is not readily reflected in the order
taking cognizance, whether remanding the matter to the Court
competent to take cognizance is the only recourse? Is it not
open to the Court before which challenge is laid to such order,
to examine the charge sheet materials to ascertain whether the
order taking cognizance can be sustained by supplementing the
reasons, or even to quash the proceedings if there are no
materials in the police report to take cognizance?
34. The Court is of the view, that in a situation where
the order taking cognizance based on the police report is
called in question on all grounds including the grounds that the
order suffers from non-application of mind, or want of reasons,
or lack of materials in the police report to take cognizance, the
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Court examining the correctness of the said order under the
Code, 1973 is not precluded from supplementing the reasons
for such order taking cognizance if there are materials in
the police report to take the cognizance.
35. The reasons for the above said view can be
explained as under.
36. In a proceeding of this nature, the Court has to
ascertain -
(i) From the order taking cognizance, based on the
materials placed before the Court, is it possible to
ascertain or gather that the Court must have
applied its mind as the contents of police report
may speak for itself.
(ii) From the reasons if any found in the order taking
cognizance, is it possible to form an opinion that
there is application of mind before taking
cognizance.
(iii) In case of remand of the matter to the Court
competent to take cognizance, is there a
realistic/fair chance of such Court taking a contrary
view than the one under the impugned order.
37. Keeping these aspect in mind the Court has to now
examine the orders under challenge.
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38. The order dated 06.10.2020 in C.C.No.408/2020
taking cognizance reads as under:
“Perused the charge sheet and records, cognizance
taken for the offence punishable under Section 120-B
read with 420, 379, 411, 419, 427, 447, of IPC and
Section 24 of Karnataka Forest Act, 1963 against
accused No. 1 to 6.
Office is hereby directed to register CC.
Call on 24.11.2020.”
39. Order dated 24.11.2020 issuing process reads as
under.
“Issue S/S to A1 to A6.
Call on 27.01.2021.”
40. The orders dated 06.10.2020 and 24.11.2020 in
C.C. No.410/2020 are as under:
“Perused the charge sheet and records, cognizance
taken for the offence punishable under Section 120-B
read with 411 of IPC against accused No. 1 to 4.
The office is hereby directed to register CC.
Perused the office note. Office is hereby directed to
keep the original passport of accused No.3 in the safe
custody.
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Call on 24.11.2020.”
41. Order dated 24.11.2020 issuing process reads as
under.
“Issue S/S to A1 to A4.
Call on 27.01.2021.”
42. From the orders dated 06.10.2020 it is prima facie
evident that the Court has perused the charge sheet and the
records, as it is explicit from the expression “ Perused the
charge sheet and records, ” found in the order. It is true
that the order does not refer to any specific statements of any
witnesses or the complainant or any specific document.
Nevertheless, the order refers to specific offences of which the
cognizance is taken.
43. However, merely because the Magistrate has
observed in his order that he has “perused the charge sheet
and the records” and has referred to the provisions of the
offences mentioned in the charge sheet, does not conclusively
establish the application of mind. However, in such situations
where the order taking cognizance refers to the specific
offences and perusal of charge sheet and the records , the Court
instead of blindly remanding the matter, may adopt a
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pragmatic approach. The Court may, if not with a rebuttable
presumption, may at least start with a tentative notion
that the Magistrate might have perused the police report and
might have applied the mind to the ingredients of the offences
while passing the order taking cognizance . It is more so
because the onus to establish that the order suffers from
illegality or lack of application of mind is on the petitioner who
has assailed the order taking cognizance .
44. To discharge the onus the petitioner has to
demonstrate that the Police report does not contain any
materials to attract the offences for which cognizance is taken.
In the process (where the Court has to refer to the police
report) if the Court finds materials to support the order taking
cognizance for the offences referred to in the order of the
Magistrate , then the Court can take a view that the Magistrate
has applied the mind before passing the order . In such
situation the Court examining the said order can supplement
the reasons for sustaining the order taking cognizance.
45. It is relevant to notice that in such an exercise
referred to above, the order supplementing the reasons for the
order passed by the Magistrate taking cognizance for offences,
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is not an order taking cognizance by the High Court or Sessions
Court before which the order taking cognizance is called in
question . In such situation The order taking cognizance would
still be by the Magistrate or the Court empowered to take
cognizance . By assigning the reasons, the Sessions Court or
the High Court is not taking cognizance, but is supplementing
the reasons to the order under challenge by which cognizance
is taken albeit sans reasons.
46. In the situation referred to above, where the
cursory perusal of charge sheet materials demonstrate the
ingredients of the offences, remitting the matter to the
Magistrate with a direction to apply the mind to the police
report and to pass appropriate order may not serve any useful
purpose and will only add to the delay and nothing more.
47. Likewise while going through the police report if the
Court finds that there are no materials to take cognizance for
the offences for which the cognizance is taken, then it
demonstrates lack of application of mind by the Magistrate. In
such a scenario the Court has to set aside the order and if the
materials do not indicate ingredients of any offence, then the
proceedings have to be quashed . Even in such situation the
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remanding the matter to the magistrate appears to be futile
exercise.
48. In another likely scenario the Court may find that
there are materials in the police report to take cognizance for
some of the offences, and no materials for some other
offences referred to in the order taking cognizance. Then the
Court can set aside the part of the order for such offences for
which there are no materials. And for other offences for which
the cognizance is taken, the Court can assign the reasons for
the order taking cognizance . In that situation too, the remand
does not appear to be a just order.
49. There is one more possibility. The charge sheet
materials may not contain any materials attracting any offence
for which the cognizance is taken. On the other hand it may
attract some other offence for which the cognizance is not
taken at all. Such an order is certainly without application of
mind. In such situation, the impugned order has to be set aside
and the Court may direct the Magistrate or such Court
empowered to take cognizance to re-consider the matter afresh
and pass suitable orders .
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50. It is also relevant to notice that there is no
provision of law which mandates the remand to the Court of
first instance if the order taking cognizance is not indicating
judicial application of mind . Likewise there is no provision in
law which prevents the Court from supplementing the reasons
to the order which does not reflect the application of mind while
taking cognizance, if there are materials to support the order
taking cognizance.
51. Keeping in mind the aforementioned aspects, the
Court has considered the contents of the complaint/FIR and the
charge sheet. The contents of the charges sheet are briefly
narrated while narrating the facts of the case. The allegations
are illegal mining, trespass, evasion of royalty and tax,
fabrication of bills, invoices and fake documents relating to
non-existent companies and entities. It is also alleged that the
petitioner has cheated by acting dishonestly with an intention
to cheat.
52. This Court on perusal of the charge sheet materials
is of the firm view that a case is made out for holding the trial
as the materials produced along with the charge sheet warrant
the trial as there is allegation of creating fake invoices,
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exporting iron ores in the name of fictitious companies and in
excess of the permits issued.
53. Under these circumstances the contentions that the
impugned order lacks reasons and is one without application of
mind though appear to be attractive, that by itself is not a
ground to set aside the order for remanding the matter to the
Magistrate for fresh consideration.
54. Considering the materials on record, the Court is of
the firm view that in the present case there is no need to remit
the matter to the Trial Court for reconsideration. Even if it is
done, the Trial Court will have no option but to take cognizance
and to pass appropriate order by assigning reasons.
55. During the course of hearing it is urged that if this
Court assigns reasons for the order passed by the Court of first
instance taking cognizance, the petitioner’s right to challenge
the reasons for such order taking cognizance before this Court
will be taken away. The contention is too technical. This Court
has assigned the reasons for the order taking cognizance
passed by the Magistrate after hearing the petitioner. Thus no
prejudice is caused to the petitioner.
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56. The Court deems it more appropriate in this case to
supplement the reasons to the impugned order taking
cognizance given the fact that the FIR is registered in 2013 and
investigation took considerably long period for nearly 7 years
as the matter appears to be complex involving multiple
transactions covering the period from 01.01.2009 to
31.05.2010.
57. Though the judgments cited by the learned Senior
Counsel have laid down the law, that the order taking
cognizance must be passed with due application of mind, it is
necessary to note that the Apex Court in various decisions has
held that there is a marked difference in the order taking
cognizance in a case based on police report and the case based
on a private complaint. In the former case, the order need not
be elaborate. Whereas in the latter case, the consideration may
be different.
58. It is relevant to notice that in any of the judgments
cited by the learned Senior Counsel it is not held that the High
Court must remit the matter to the Magistrate or the Court
competent to take cognizance for fresh consideration if the
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order taking cognizance does not disclose the application of
mind. However that would be one of the options.
59. The Apex Court in Pramila Devi and Others vs
11
State of Jharkhand and Another has extensively dealt with
the requirement of the order taking cognizance of an offence.
The Apex Court has also referred to the previous judgments of
the Apex Court on the point and the relevant paragraphs of the
said judgment in Pramila Devi, supra are extracted as under:-
16. In the present case, we find that the Additional
Judicial Commissioner has taken cognizance while
recording a finding that - from a perusal of the case diary
and case record, a prima facie case was made out against
the accused, including the Appellants. In Bhushan Kumar
v. State (NCT of Delhi), (2012) 5 SCC 424, this Court held
that an order of the Magistrate taking cognizance cannot
be faulted only because it was not a reasoned order;
relevant paragraphs being as under:
14. Time and again it has been stated by this Court that
the summoning order under Section 204 of the Code
requires no explicit reasons to be stated because it is
imperative that the Magistrate must have taken notice of
the accusations and applied his mind to the allegations
made in the police report and the materials filed
therewith’.
11
(2025) SCC OnLine 886
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xxxx
16. In Nagawwa v. Veeranna Shivalingappa Konjalgi
[(1976) 3 SCC 736 : 1976 SCC (Cri) 507] this Court held
that it is not the province of the Magistrate to enter into a
detailed discussion on the merits or demerits of the case.
It was further held that in deciding whether a process
should be issued, the Magistrate can take into
consideration improbabilities appearing on the face of the
complaint or in the evidence led by the complainant in
support of the allegations. The Magistrate has been given
an undoubted discretion in the matter and the discretion
has to be judicially exercised by him. It was further held
that : (SCC p. 741, para 5)
“5. … Once the Magistrate has exercised his discretion it is
not for the High Court, or even this Court, to substitute its
own discretion for that of the Magistrate or to examine
the case on merits with a view to find out whether or not
the allegations in the complaint, if proved, would
ultimately end in conviction of the accused.”
xxxx
17. . The view in Bhushan Kumar (supra) was reiterated
in Mehmood Ul Rehman v. Khazir Mohammad Tunda ,
(2015) 12 SCC 420 and State of Gujarat v. Afroz
Mohammed Hasanfatta , (2019) 20 SCC 539. This Court in
Rakhi Mishra v. State of Bihar , (2017) 16 SCC 772
restated the settled proposition of law enunciated in Sonu
Gupta v. Deepak Gupta , (2015) 3 SCC 424, as under:
‘ 4. We have heard the learned counsel appearing for the
parties. We are of the considered opinion that the High
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Court erred in allowing the application filed by
Respondents 2, 4, 5, 6, 7, 8, 9 and 10 and quashing the
criminal proceedings against them. A perusal of the FIR
would clearly show that the appellant alleged cruelty
against Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court
in Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] held
as follows : (SCC p. 429, para 8)
“8. … At the stage of cognizance and summoning the
Magistrate is required to apply his judicial mind only with
a view to take cognizance of the offence … to find out
whether a prima facie case has been made out for
summoning the accused persons. At this stage, the
learned Magistrate is not required to consider the defence
version or materials or arguments nor is he required to
evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake
the exercise to find out at this stage whether the
materials would lead to conviction or not.”
5. The order passed by the trial court taking cognizance
against R-2 and R-4 to R-9 is in conformity with the law
laid down in the above judgment. It is settled law that the
power under Section 482 CrPC is exercised by the High
Court only in exceptional circumstances only when a
prima facie case is not made out against the accused. The
test applied by this Court for interference at the initial
stage of a prosecution is whether the uncontroverted
allegations prima facie establish a case. ’
(Emphasis supplied)
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c/w CRL.P No. 101448 of 2022
60. The law laid down is that the order taking
cognizance must reflect application of judicial mind. This Court
is not taking a view that order need not reflect application of
judicial mind. The Court is considering whether such defect in
the order (non application of judicial mind) would compulsorily
warrant remand of a matter or there can be other consideration
by the Court to ascertain as to whether such order can be
sustained if there are materials to support the order.
61. The Apex Court in Pradeep S. Wodeyar vs State
12
of Karnataka has taken a view that the judgment in Sunil
Bharati Mittal (relied on by the Senior Counsel for the
petitioner) stands on different footing as the said case was
arising from a case where the cognizance is taken against the
person not named in the charge sheet.
62. The Apex Court in the aforementioned case has also
referred to the judgment of the Apex Court in State of
13
Gujarat vs Afroz Mohammed Hasanfatta where it is held
that while taking cognizance based on a charge sheet the
consideration would be different from taking cognizance based
on a private complaint.
12
2021 (19) SCC 62
13
(2019) 20 SCC 539
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c/w CRL.P No. 101448 of 2022
63. Paragraphs No.23 and 24 of the said judgment read
as under
23. Insofar as taking cognizance based on the police
report is concerned, the Magistrate has the advantage of
the charge-sheet, 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 officer and thereafter, charge-sheet was
filed. In appropriate cases, opinion of the Public
Prosecutor is also obtained before 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
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
issuing summons to the accused is based upon subject to
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 not
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c/w CRL.P No. 101448 of 2022
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.
24. In the present case, cognizance of the offence has
been taken by taking into consideration the charge-sheet
filed by the police for the offence under Sections 420,
465, 467, 468, 471, 477-A and 120-B IPC, the order for
issuance of process without explicitly recording reasons
for its satisfaction for issue of process does not suffer
from any illegality.
(Emphasis supplied)
64. Keeping in mind the aforementioned principles and
also for the reasons assigned above, the Court is of the view
that there are materials in the charge sheet for the magistrate
to take cognizance for the offences.
Whether the complaint or the order taking cognizance is
barred by limitation.
65. Learned Senior Counsel for the petitioner would
urge that the prosecution is time barred on the premise that
the cause of action arose in 2012 while the Apex Court passed
the order on 07.09.2012 to conduct preliminary enquiry in
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c/w CRL.P No. 101448 of 2022
respect of 32.27 lakhs of Metric Tonnes of iron ore exported
between 01.01.2009 and 31.05.2010 from Belekeri Port. In any
case it is urged that the cause of action arose on 16.09.2013
when Apex Court permitted registration of FIR. However the
impugned orders are passed on 06.10.2020 and 19.10.2020.
66. Learned Senior Counsel would refer to Sections
467, 468, 469, 470, 471, 472 and 473 of Code, 1973 falling
under Chapter XXXVI of the Code which deal with limitation and
restrictions to take cognizance.
67. Learned Senior Counsel referring to Section 469 of
the Code, 1973 would urge that the limitation commences from
the date of commission of offence and the last day for
commission of the offence is 31.05.2010. Referring to Section
468, learned Senior Counsel would urge that there is a bar to
take cognizance of an offence after the expiry of the period of
limitation.
68. It is also urged that the application is not filed to
condone the delay by invoking Section 473 of the Code, 1973.
69. The law relating to limitation under the Code 1973
is well settled. The “period of limitation” under the Code is the
period prescribed in Section 468 of the Code, 1973 as the
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expression the “period of limitation” is defined in Section 467
of Code, 1973.
70. Section 468 provides that period of limitation would
be;
a) six months if the offence is punishable with fine
only.
b) One Year if the offence is punishable with
imprisonment for a term not exceeding one year.
c) Three Years if the offence is punishable with
imprisonment for a term not exceeding three years.
71. There is no period of limitation under the Code,
1973 if the offence attracts punishment of more than three
years imprisonment. In the instant case the offences alleged
attract imprisonment beyond three years. Thus, Section 468 of
the Code, 1973 has no application.
72. Section 473 of the Code, 1973 provides for
condonation of delay for taking cognizance of an offence after
the expiry of period of limitation. The said provision has no
application as the complaint and FIR are registered in time.
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73. It is relevant to notice that the FIR was registered
pursuant to the direction issued by the Apex Court on
16.09.2013. The FIR was registered on 29.10.2013. The
preliminary enquiry was conducted pursuant to the order dated
07.09.2012 by the Apex Court in the Writ Petition No.
562/2009. The last of the alleged incidents took place on
31.05.2010. The role of the accused was identified only during
the investigation. Thus the Court is of the view that the
complaint is in time.
74. That apart, the settled position of law in terms of
the judgment of the Apex Court in Sarah Mathew vs
14
Institute Of Cardio Vascular Diseases is that if the
complaint or FIR is in time, then the order taking cognizance
cannot be held to be barred by limitation, if the order taking
cognizance is beyond the prescribed period in Section 468 of
the Code, 1973.
75. CONCLUSIONS
(i) There is no mandate of law, that if the order taking
cognizance does not reflect application of mind, the
Higher Court examining the correctness of such
14
(2014)2 SCC 62
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c/w CRL.P No. 101448 of 2022
order should invariably remit the matter to the
Court of first instance fresh consideration.
(ii) In a petition assailing the order taking cognizance
of an offence, on the ground that the order is
invalid for lack of reasons, or for want of
application of mind, the Higher Court examining the
correctness of the order can supplement the
reasons for the order taking cognizance, if the
police report contains the materials to sustain the
order under challenge. There is no provision in the
code prohibiting such exercise.
(iii) The order supplementing the reasons for the order
passed by the Magistrate taking cognizance for
offences, is not an order taking cognizance by the
High Court or Sessions Court before which the order
taking cognizance is called in question. The order
taking cognizance would be by the Magistrate or
the Court empowered to take cognizance.
(iv) From the police report if the Court finds that there
are no materials to take cognizance for the offences
for which the cognizance has been taken, then it
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c/w CRL.P No. 101448 of 2022
would indicate non application of mind by the
Magistrate. In such a scenario the Court has to set
aside the order and if the materials do not indicate
ingredients of any offence, then the proceedings
have to be quashed. .
(v) From the charge sheet the Court may find that
there are materials in the police report to take
cognizance for some of the offences, and no
materials for some other offences referred to in the
impugned order taking cognizance, then the Court
can set aside the part of the order taking
cognizance for such offences for which there are no
materials. And for other offences where the
cognizance has been taken, the Court can assign
the reasons for the impugned order taking
cognizance.
(vi) In a situation where the charge sheet materials do
not contain any materials attracting any offence for
which the cognizance is taken and contains
materials disclosing some other offence for which
the cognizance is not taken, then such an order is
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certainly without application of mind. In such
situation, the impugned order has to be set aside
and the Court may direct the Magistrate or such
Court empowered to take cognizance to reconsider
the matter afresh and pass suitable orders.
76. Before concluding, it is necessary to observe that,
this Court has held that, in a proceeding instituted on the basis
of a police report, an order taking cognizance may, in the
circumstances referred to above, can be sustained by the
Higher Court, despite the infirmity in such orders. However
this Court reiterates that a Magistrate or any other Court
competent to take cognizance is required to pass an
order which, need not necessarily be elaborate, and must
prima facie reflects application of mind and indicates that the
order has been passed considering the police report and the
any other records. Such orders are necessary to avoid, or at
least minimize, challenges to orders taking cognizance.
77. For the reasons stated, the Court is of the view that
the petitions have to be dismissed.
78. Hence, the following:
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c/w CRL.P No. 101448 of 2022
ORDER
(i) Petitions are dismissed.
(ii) Since the FIR is registered in 2013, both sides
shall co-operate for early disposal of the
proceedings before the Trial Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN/CHS