JUDGMENT 1. - The petitioners, namely, Damodar, Smt. Nirmala and Smt. Lajwanti are the partners of the partnership firm M/s Amul K.Bakers, Kota. The Sessions Judge, Kota by impugned order dated October 31, 1988 took cognizance against the aforesaid partners and the firm under section 3/7 of the Essential Commodities Act,1955 (in short to be referred as 'the Act') in Criminal Case No. 23/88 State v. M/s Amul K. Bakers and others . By this petition under Section 482 Cr. P. C. this order has been challenged. 2. The facts, in brief, are that on August 18, 1988, the Enforcement Officer, Kota checked the partnership firm M/s Amul K. Bakers for holding an enquiry on a complaint made to the District Supply Officer. The petitioner-Damodar was found conducting the business of the firm when the checking was made. Some irregularities, which have been enumerated in the complaint, were found/noticed at the time of checking. The prosecution case is that by committing the said irregularities, the firm as well as, the partners of the said firm violated the provisions contained in clause 15 and 17 of the Rajasthan Trade Articles (License and Control )Order, 1980 (in short to be referred as 'the Order'), which is punishable under section 3/7 of the Act. Hence prosecution was launched against the partners of the firm, as well as, the firm, on a complaint made by the Enforcement Officer in the court of Sections Judge, Kota, which is a special court constituted under the Act. The learned Judge took cognizance by the impugned order and issued process to secure the attendance of the accused persons. 3. Aggrieved against the aforesaid order of taking cognizance, the petitioners have filed the present petitions. 4. Mr. A.K.Gupta, learned counsel for the petitioners has challenged the aforesaid order of taking cognizance on two counts, namely, (i) that the petitioner firm is a manufacturer of bread etc. 3. Aggrieved against the aforesaid order of taking cognizance, the petitioners have filed the present petitions. 4. Mr. A.K.Gupta, learned counsel for the petitioners has challenged the aforesaid order of taking cognizance on two counts, namely, (i) that the petitioner firm is a manufacturer of bread etc. and is not a 'dealer' under the Order, as such the petitioners cannot be prosecuted for the contravention of the provisions of the Order: and (ii) that the petitioners Smt. Nirmala and Lajwanti are ladies and they were not conducting the business of the firm at the time of checking and, there is no allegation in the complaint that these two ladies were in-charge of, and were responsible to, the firm for the conduct of the business of -the firm at time of the alleged contravention, as such, their prosecution on the basis of vicarious liability is unsustainable. 5. The first contention of the learned counsel for the petitioners may be rejected at the outset on the basis of the averments made in the complaint that various types of bread were stored in the premises of the firm, which were meant for sale and the petitioner-Damodar was found conducting the business of the firm, therefore, it shall not be just and proper to express any opinion on this contention and at this stage it cannot be said that the petitioner-firm was not a dealer as defined in the Order. 6. The second contention raised by the learned counsel for the petitioners is of vital importance and it needs serious consideration for the general guidance of the subordinate courts also, as such question is often raised by the partners of a firm at the initial stage of taking cognizance of framing charge.From the perusal of the complaint, it is clear that there is no allegation in it against the ladies-petitioners that they were in charge of, and were responsible to, the firm for the conduct of the business of the firm. They have been arrayed as accused simply on the averments that they happened to be partners of the firm, which was checked by the Enforcement Officer.The learned Sessions Judge has taken cognizance on the basis of the averments made in the complaint as no enquiry was conducted by him under section 200/202 Cr. They have been arrayed as accused simply on the averments that they happened to be partners of the firm, which was checked by the Enforcement Officer.The learned Sessions Judge has taken cognizance on the basis of the averments made in the complaint as no enquiry was conducted by him under section 200/202 Cr. P.C. The question, arises whether the order of Session Judge taking cognizance against the ladies is sustainable in the eyes of law, especially in the absence of the averments in the complaint that they were in charge of, and were responsible to the firm for the conduct of the business of the firm.The argument of the learned Public Prosecutor is that under the Indian Partnership Act, 1932, a 'firm' or 'partnership' is not a legal entity, but is merely an association of persons, who agreed to carry on business. According to him, it is only a collective name for individuals carrying on business in partnership. Relying upon various sections of the Partnership Act, the learned counsel urged that the essential characteristic of a firm is that each partner is a representative of the other partner/partners and each of the partner is an agent, as well as, a principal. He/she is an agent in so far as he/she can bind the other partners by his/her acts within the scope of partnership agreement, and he/she is a principal to the extent that he/she is bound by the acts of the other partners. The learned counsel also drew my attention to Section 2(a) of the Partnership Act, which provides an act of a firm' means any act or omission by all the partners or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm.The learned P.P. then submitted that this is not the stage to appreciate as to whether the ladies were in charge of, and were responsible to, the firm for the conduct of the business of the firm or not as this fact can be decided conclusively at the stage of trial after recording the evidence. The learned counsel then submitted that at the stage of trial, the aforesaid petitioners shall be in a position to prove that the contravention took place without their knowledge or that they exercised all due diligence to prevent such contravention. 7. I have given my anxious consideration to the above submissions. The learned counsel then submitted that at the stage of trial, the aforesaid petitioners shall be in a position to prove that the contravention took place without their knowledge or that they exercised all due diligence to prevent such contravention. 7. I have given my anxious consideration to the above submissions. I have also perused the record of the trial court, as well as, the various authorities cited before me during the course of the arguments.At the very outset, it can be stated that there can be no vicarious liability in criminal law unless the statute specifically provides for it. In this connection we have to see the impact of Section 10 of the Act, wherein it provides for such vicarious liability and the burden on the accused under the proviso to Sub-section (1) of Section -10 of the Act to prove that the offence took place without his knowledge or he exercised all due diligence to prevent such offence.To appreciate the submissions made by the learned counsel for the parties, Section-10 of the Act may be reproduced for the sake of convenience:-Section-10 "10. Offences by companies (1) If the person contravening an order made under section 3 in a company, every parson who, at the time the contravention was committed was, in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained in this sub-section shall render any such person liable to any punishment if the proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed consent or connivance of, or is attributable to any neglect on the part of, any director, manager secretary, or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly." Explanation-For the purposes of this section (a) 'company' means any body corporate,and includes a firm or other association of individuals, and (b) 'director' in relation to a firm means a partner in the firm." From the explanation to Section 10, it will be seen that the company includes a firm and other association of individuals. Section-10 provides that a person shall be deemed to be guilty of the contravention of an Order made under section-3 of the Act, if he/she was in charge of, and was responsible to, the firm for the conduct of the business of the firm. What is of importance to note is that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business could alone be liable for the offence complained of. From the bare reading of Section 10, it is further significant to note that the obligation of the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution alleges/establishes the requisite condition mentioned in Sub-section (1) of the Act. The requisite condition is that the partner of the firm was responsible for carrying on the business and was, during the relevant time, incharge of the business. In the absence of any such proof no partner can be convicted. 8. Now, the question arises for consideration, whether in case of a partner- ship firm in the absence of any averment in the complaint that the accused partner was in charge of the firm and was responsible to the firm for the conduct of its business, no cognizance should be taken against him and if a cognizance has been taken, than the proceedings should be quashed on this ground. For this purpose, I would like to refer the various judgments which have been cited at the bar.The first case relied upon by the learned counsel for the petitioners is the judgment in Smt. Sumitra and another v. The State of Rajasthan and another, 1981 RCC 363 . In the said judgment, it was held as under: "In view of explanation to Section 10, it can hardly he disputed that company includes a firm or other association of individuals. As already observed, there is no evidence on record to show that the petitioners were the partners to Moolchand Himmatram and Co. Further the evidence is completely lacking that any of the petitioner was In charge of, and was responsible to, the firm for the conduct of business. Thus it appears that there is no evidence on the basis of which further prosecution of the petitioners can be justified. I am aware that the revision by Kanhaiyalal and Vinod Kumar is not within limitation and it is within limitation only vis-a-vis petitioner Sumitra. However, the continuation of frivolous prosecution can be quashed under the inherent powers of this Court." Another judgment relied upon by the learned counsel for the petitioner is State of Karala v. Noveen Chandran M. Soni Partner M/s Soni Harilal and Co, 1978 Cri. L.J. 105 . In this case, a partner of the firm was prosecuted under section 3//7 of the Act, but he was acquitted by the trial court in that absence of any averment in the charge- sheet and in the course of trial any evidence to the effect that the respondent- partner was in- charge of the firm at the relevant time or that he had any thing to do with the maintenance of the stocks and accounts of the firm. An argument was raised on behalf of the State that the burden of proving that the contravention of the provisions took place without his knowledge or that he exercised due diligence to prevent such contravention was on the partner, but the same was repelled by the Court observing as under : "The responsibility to prove that the respondent had taken steps to prevent the contravention would arise only if the prosecution first establishes that the conditions mentioned in sub-section (1) exist in the case". The next case relied upon by the learned counsel for the petitioners is State of Karnataka v. Pratap Chand and others, 1981(2) SCC 335 . The charge in that case was for the offences under sections 18(c), 18(a) (ii) and 18-A of the Drugs and Cosmetics Act, 1940. In that case, the respondent No.2, who was a partner of the firm was acquitted by the trial Magistrate. The Magistrate held that the acquitted partner was not in charge of the business of the firm, and the other respondent was in charge of the business of the firm. Section 34 of the Durgs and Cosmetics Act is analogous to Section-10 of the Essential Commodities Act. While dismissing the appeal, the Hon'ble Supreme Court affirmed the following observations made in G.L. Gupta v. D.H. Mehta, 1971(3) SCC 189 : "What then does the expression 'a person in charge and responsible for the conduct of the affairs of a company' means? It will be noticed that the word 'company' includes a firm or other association, and the same test must apply to a director in-charge and a partner of a firm in-charge of a business. It seems to us that in the context a person 'in-charge' must mean that the person should be in over-all control of the day to day business of the company or firm. This inference follows from the wording of Section 23-C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be in-charge of the business of the company. Further it mentions manager, who usually is in-charge of the business but not in overall charge. Similarly the other officers may be in charge of only some part of business." The last case relied upon by the learned counsel for the petitioner is a judgment of this Court in P.R. Neelkantham and others v. State of Rajasthan and others 1986 RLR 172 = 1986(1) WLN 11 . This case was under section 17 of the Prevention of Food adulteration Act. The three directors of the company M/s. Brooke Bond India Ltd. moved a petition before the High Court for quashing the proceedings against them challenging the order of taking cognizance. It was argued that there was no allegation that the persons who were responsible for the conduct of the business of the company. The three directors of the company M/s. Brooke Bond India Ltd. moved a petition before the High Court for quashing the proceedings against them challenging the order of taking cognizance. It was argued that there was no allegation that the persons who were responsible for the conduct of the business of the company. This Court relied upon a decision of the Hon'ble Supreme Court in Municipal Council Delhi v. Ramkishan Rohatagi, 1983 Cr. L.R. SC 9 , as well as, the decision of the Calcutta High Court in G. Atherton and Co. Pvt. Ltd. v. Corporation of Calcutta, 1979 Cr. L.J. 86 and quashed the proceedings, as well as, the order of the learned Magistrate taking cognizance against the directors and salesman in the absence of such allegation. The following observations made by their Lordships in Municipal Council, Delhi v. Ramkishan Rohatagi (supra) were referred in the judgment: "So far as the Directors are concerned, there is not even a whisper nor a shared of an evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which, a reasonable inference can be drawn they could also be vicariously liable. In these circumstances therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed". 9. The learned Public Prosecutor, on the other hand, placed reliance op a judgment of Gauhati High Court in J.L. Roy v. Amrit Lai Dev and another 1980 Cr. L.J. 24 to substantiate his argument that the burden lay on the accused partner to prove that the offence was committed without his knowledge and that he exercised all due diligence to prevent the offence. Section-17 of the Prevention of Food Adulteration Act is also analogous to Section 10 of the Essential Commodities Act. While considering the proviso to Section 17(1) of the Act, the Court held as under: "In the explanation, for the purposes of Section 17 company' has been defined as "company' means any body corporate and includes a firm or other association of individuals". While considering the proviso to Section 17(1) of the Act, the Court held as under: "In the explanation, for the purposes of Section 17 company' has been defined as "company' means any body corporate and includes a firm or other association of individuals". Section-17 read with the Explanation clearly shows that a partner of a firm, who may not actually sell, will be vicariously liable for punishment. Dhirendra Lal has not denied that he was one of the partners of the firm. So the burden would lie upon him under the proviso to Section-17(1) to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the sale of adulterated 'atta.' In our opinion, therefore, both the respondents are equally liable. In our opinion the guilt of both the respondents has been proved beyond reasonable doubt." Another judgment relied upon by the learned Public Prosecutor is Badri Prasad Gupta and others v. State of Bihar and another, 1986 Cri. L.J. 699 , which is a full bench judgment. This case was under Bihar Shops and Establishments Act, 1954. Section-35 of the said Act was considered in the light of Section-10 of the Essential Commodities Act. The question raised before the court was that since the partnership firm was not made an accused in the complaint, the partners could not be vicariously prosecuted for the offence. This contention was repelled by the court and it was observed as under: "it was noticed somewhat erroneously that Section 10 of the Essential Commodities Act is in pari materia with section 35 of the Shops and Establishments Act, which, as already shown, is not so." This judgment has no relevance as it was held in that judgment itself that Section-35 is not pari materia with Section 10 of the Essential Commodities Act. 10. Some provisions of the Partnership Act also require consideration to answer the legal question involved in the case. Section-4 of the Partnership Act defines 'Partnership' as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.Section-9 of the Act provides duties of partners. 10. Some provisions of the Partnership Act also require consideration to answer the legal question involved in the case. Section-4 of the Partnership Act defines 'Partnership' as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.Section-9 of the Act provides duties of partners. According to this provision, all partners are bound to carry on the business of the firm to the greatest common advantage, to be just and faithful to each other, and to render true accounts and full information of all things affecting the firm to any partner or his legal representative.Then Section 10 provided that every partner shall indemnify the firm for any loss caused to it by his fraud in the conduct of the business of the firm.Section-12 deals with the conduct of the business. For the sake of con venience, this section is reproduced below:-Section-12 "The conduct of the business- Subject to contract between the partners- (a) every partner has a right to take part in the conduct of the business; (b) every partner is bound to attend diligently to his duties in the conduct of the business; (c) any difference arising as to ordinary matters connected with the business may be decided by a majority of the partners, and every partner shall have the right to express his opinion before the matter is decided, but no change may be made in the nature of the business without the consent of all the partners; and (d) every partner has a right to have access to and to inspect and copy any of the books of the firm." Section-13 provides mutual rights and liabilities of the partners.Section-19 provides implied authority of a partner as agent of the firm.Then, Section-23 provides that an admission or representation made by a 1986 Cri. L.J. 699 partner concerning the affairs of the firm is evidence against the firm, if it is made in the ordinary course of business.Section-24 speaks that notice to a partner operates a notice to the firm.Section-25 runs as under:: Section-25 "Liability of a partner for acts of the firm. Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner." Section-26 deals with the liability of the firm for wrongful acts of a partner. Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner." Section-26 deals with the liability of the firm for wrongful acts of a partner. This section is also relevant to be reproduced as under: "Section-26 Liability of the firm for wrongful acts of a partner- where, by the wrong- ful act or omission of a partner acting in the ordinary course of the business of a firm or with the authority of his partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is liable therefor to the same extent as the partner." Then Section-27 of the Act creates liability of the firm for any misapplication made by the partners.The aforesaid provisions of the Partnership Act make it clear that every partner has a right to take part in the conduct of the business and that every partner in also bound to attend diligently to his duties in the conduct of the business, and that every partner has a right to have access and to inspect and copy any of the books of the firm. Similarly, every partner has implied authority as an agent of the firm and a notice to the firm is a notice to the partner. 11. In the aforesaid background of the status of a partner in a partnership firm, the status of director in a company cannot be equated with the status of partner in a firm. A partner in a firm exercises are (a11)the rights, though subject to partnership agreement, as proprietor of the business and is also equally liable so. At the stage of taking cognizance or framing charge, the court is only required to see that there is sufficient ground for proceeding against the partner of the firm or in other words that there is ground for presuming that the accused-partner has committed an offence. The standard of test regarding guilt or otherwise of accused is not to be applied as it requires at the stage of trial. Even if there is a strong suspicion against the accused-partner a cognizance should be taken against him. The standard of test regarding guilt or otherwise of accused is not to be applied as it requires at the stage of trial. Even if there is a strong suspicion against the accused-partner a cognizance should be taken against him. Therefore, taking into consideration the status of the partner in a partnership firm, if any contravention is found to have been committed by the firm which is punishable under the Act, normally, cognizance should be taken against all adult male partners at least and the matter should be left to be finally decided at the stage of trial as to whether such partner/ partners was/were in-charge of, and was/ were responsible to the firm for the conduct of the business of the firm or not. In the case of ladies and minors, who are generally admitted as partners only for the benefits of the partnership and who act as sleeping partners, normally, process should not be issued against them in a normal course like adult male-partners unless specific averments about the acts of such partners are made in the complaint/charge-sheet or evidence is laid to that effect to show that they were in-charge of, and were responsible for the conduct of the business of the firm.A reference may be conveniently made to a recent judgment of the Hon'ble Supreme Court in Sham Sunder and others v. State of Haryana, decided on 21.08.1991 reported in Company Cases (Vol. 67(1990)1 .In the aforesaid case, the Apex Court had an occasion to consider the vicarious liability of a partner of a firm in criminal case under section 3/7 of the Essential Commodities Act. The Hon'ble Supreme Court observed as under: "But we were concerned with a criminal liability under a penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section-10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not." It is therefore, necessary to add an emphatic note of caution in this regard. More often, it is common that some of the partners of a firm may not even be knowing of what is going on day-to-day in the firm. It does not make all the partners liable for the offence whether they do business or not." It is therefore, necessary to add an emphatic note of caution in this regard. More often, it is common that some of the partners of a firm may not even be knowing of what is going on day-to-day in the firm. There may be partners, better known as sleeping partners, who are not required to take any part in the business of the firm. There may be ladies and minors who were admitted only for the benefits of partnership. They may not know anything about the business of firm. It would be a traversity of justice to prosecute all the partners and ask them to prove under the proviso to sub-section(1) that the offence was committed without their knowledge. It is significant to note that the obligation of the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was, during the relevant time, in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State." (Emphasis Supplied)From the above discussions, the legal position can be summarised as under : (i) There can be no vicarious liability in criminal law unless the statute specifically provides for it and Section-10 of the Essential Commodities Act does not create such vicarious liability. (ii) The proviso to Sub-section(1) of Section -10 placing burden on the accused to prove that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in Sub-section(1) is established. The requisite condition is that the partner was carrying on the business and was, during the relevant time, in-charge of the business. (iii) That the prosecution must allege and prove that a partner of a firm was responsible for carrying on the business and was, during the relevant time, in-charge of the firm before he can be convicted. The requisite condition is that the partner was carrying on the business and was, during the relevant time, in-charge of the business. (iii) That the prosecution must allege and prove that a partner of a firm was responsible for carrying on the business and was, during the relevant time, in-charge of the firm before he can be convicted. (iv) In case of lady or minor partner, who are generally admitted for the benefits of partnership, there should be a strict compliance of the above condition contained in Sub-section(l) of Section-10 of the Act and there should be specific averments in the charge-sheet/complaint about their individual acts in the con- duct of the business of the firm to show that they were responsible for carrying on the business and were, during the relevant time, in-charge of the business. In the absence of such specific averments in the complaint/charge-sheet about their acts in the conduct of the business their prosecution should not be permitted. (v) In case of adult male partner/partners, keeping in view his/their status in the firm, rights and the duties, the question that he/they was/were in-charge of and was/were responsible for the conduct of the business of the firm should be left to be decided at the stage of trial and cognizance should not be refused simply on the ground that in the complaint/charge-sheet such averments were not made. Applying the aforesaid principles, the prosecution of Smt. Nirmala and Smt. Lajwanti, who are ladies deserve to be quashed as there is no averment in the complaint that they were in-charge of and were responsible for the conduct of the business of the firm.Consequently, this petition is allowed partly and the order of the Sessions Judge(Special Court), Kota dated Oct. 31, 1988, taking cognizance against the petitioners Smt. Nirmala and Smt. Lajwanti under section 3/7 of the Essential Commodities Act is set-aside and proceedings against them are quashed, but the remaining part of the order is maintained.Petition partly allowed. *******