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2007 DIGILAW 433 (JHR)

Kashinath Bohra v. State of Jharkhand

2007-05-16

D.G.R.PATNAIK

body2007
ORDER D.G.R. Patnaik, J. 1. The petitioner in this application has prayed for quashing of the entire criminal proceedings pending before the learned Additional Chief Judicial Magistrate, Rajmahal, including the order dated 29.2.1996 in TR Case No. 358 of 2003 (O.C.R. No. 10 of 1996) whereby cognizance of the offences under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act has been taken against the petitioner. 2. The primary ground advanced by the counsel for the petitioner in respect of his prayer is that the order of cognizance taken by the trial Court is devoid of merits and has been passed without application of judicial mind to the facts and circumstances of the case, namely, that the complaint petition essentially lacks specific details regarding the capacity of the petitioner vis-a-vis the Company i.e. Tirupati Engineering Private Limited and also regarding the place where the aforesaid company's mining operations are located which was allegedly inspected by the opposite-party No. 2 and also lacks the specific allegation against the petitioner as to the role played by him in respect of the alleged acts. 3. Heard the counsel for the petitioner and the opposite-party No. 2. 4. For better appreciation of the grounds advanced on behalf of the petitioner, it would be appropriate to make brief reference to the facts of the case. 5. The case was registered against the petitioner on the basis of the complaint filed by the opposite-party No. 2 on 14.2.1996 alleging inter alia that the petitioner is the representative of the Tirupati Engineering Works Limited, 68 Lake Avenue, Calcutta, and the company carries on mining operations. On 2.1.1996, the complainant/opposite-party No. 2 inspected the mines of the aforesaid company and found a number of defects as pointed out, under the provisions of the Contract Labour (Regulation and Abolition) Act. The company thereafter filed this complaint petition before the learned Court below in which cognizance has been taken for the offences under Sections 23 and 24 of the aforesaid Act. 6. It appears that the opposite-party No. 2 was served with a notice which was received in office, but failed to appear. As such, the case was heard in presence of the learned Counsel for the State. 7. Elaborating the arguments advanced by the petitioner, learned Counsel for the petitioner States that on verification made by his own, petitioner came to learn that M/s. Tirupati Engg. As such, the case was heard in presence of the learned Counsel for the State. 7. Elaborating the arguments advanced by the petitioner, learned Counsel for the petitioner States that on verification made by his own, petitioner came to learn that M/s. Tirupati Engg. Pvt. Ltd does not exist at all and as per the certificate dated 17.6.2003 (Annexure 1/1 to this application) issued by the Assistant Registrar of the Companies, West Bengal, no such company was registered under the Companies Act at all. Learned Counsel submits that the genuineness of the complaint is doubtful inasmuch as even the complainant does not specify the actual place of mining operations purportedly carried out by the company where he claims to have visited for the purpose of inspection, except mentioning the address of the company as given by the complainant as West Bengal which is not within the jurisdiction of the Court at Rajmahal where the case was registered. Learned Counsel adds further that the petitioner has been named as an accused in this case, but reference to his name has been made only as a purported representative of the company. The complainant does not specify as to whether the petitioner has been authorized on behalf of the company to represent it and the specific role attributed to the petitioner if any in the management of the affairs of the company. Learned Counsel adds that mere reference to the petitioner as being a representative of the company without any further explanation, is vague and unspecific and cannot be the basis to saddle any liability, much less any criminal liability upon the petitioner for his purported representation of a non-existent company. Learned Counsel submits further that in view of the aforesaid facts, it is clear that the learned Court below has not applied its judicial mind to the facts of the case before passing the impugned order of cognizance and hence the continuance of the criminal proceedings against the petitioner is an abuse of the process of the Court. 8. From the facts and circumstances of the case as mentioned above, it appears that the prosecution has not given any specific statement that M/s. Tirupati Engg. 8. From the facts and circumstances of the case as mentioned above, it appears that the prosecution has not given any specific statement that M/s. Tirupati Engg. Pvt. Ltd. has authorized the petitioner as its representative for all purposes, including representation of the company in the matter of litigation before a Court of Law and in the matter of management of the affairs of the company. It also appears that the complaint petition is silent as to the date and place of the occurrence i.e. the place where the mining operations of the company was being carried out and the place where the complaint claims to have visited for the purpose of inspection. The learned Court below has apparently failed to take these aspects of the compliant before proceeding to take cognizance of the offence. 9. I find substance in the arguments of the counsel for the petitioner and am satisfied that in the facts and circumstances of the case, the impugned order of cognizance reflects lack of application judicial mind and is fit to be set aside. 10. For the reasons aforesaid, I find merit in this application, which is accordingly allowed and the entire criminal proceedings pending before the learned Addl. Chief Judicial Magistrate, Rajmahal, including the order dated 29.2.2006 taking cognizance of the offence is hereby set aside. Application allowed.