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2010 DIGILAW 29 (ORI)

HIRALAL GUPTA v. REPUBLIC OF INDIA

2010-01-13

S.K.MISHRA

body2010
JUDGMENT : S.K. Mishra, J. - A very short but interesting question arises in this revision. The Petitioner, H.P. Gupta, who was nominated by one Doaba Industrial & Trading Company (Private) Ltd. (hereinafter referred to as " DITCO" for brevity), assails the order passed by the Special C.J.M. (CBI), Bhubaneswar in S.P.E. No. 32 of 1994, wherein the learned trial court ordered that the representative of the Company should appear in the court and apply for bail. In other words, the prayer of the Petitioner to exempt him from applying for on bail was rejected. Such order is assailed in this revision. 2. Succinctly stated, the facts of the case are that upon submission of charge sheet by the Central Bureau of Investigation (hereinafter referred to as "CBI" for brevity) for the offence u/s 406 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for brevity), cognizance was taken by the learned Magistrate and processes were issued against DITCO and against one P.R. Maniktala, Director-cum-General Manager, DITCO. In a revision application, this Court quashed the order of cognizance and prosecution against P.R. Maniktala. The CBI thereafter filed supplementary charge sheet against one J.K. Mediretta instead of P.R. Maniktala. Accordingly, processes were issued against J.K. Mediretta and charge was framed. Thereafter, the Company nominated HP. Gupta, being its Accounts Officer, u/s 305(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for brevity). The nomination was accepted by the learned Magistrate and the case was fixed for appearance of the said HP. Gupta as an accused. The use of word "accused" in respect of the said HP. Gupta was challenged before this Court in Criminal Misc. Case No. 3220 of 2009 and this Court, as per the order dated 14.10.2009, directed that HP. Gupta to be arrayed as representative of the Company (DITCO). Thereafter, he filed a petition for exempting him to go on bail as he is not an accused in this case. The learned Magistrate rejected the petition. Such order is challenged in this revision. 3. Keeping in view the limited nature of question involved and the fact that the Petitioner has also served a copy of the brief on the learned Standing Counsel for the CBI, the matter is taken up for disposal at the stage of admission on consent of both the sides. 4. Such order is challenged in this revision. 3. Keeping in view the limited nature of question involved and the fact that the Petitioner has also served a copy of the brief on the learned Standing Counsel for the CBI, the matter is taken up for disposal at the stage of admission on consent of both the sides. 4. In course of hearing of the application, the learned Counsel for the Petitioner drew attention of this Court to the provision u/s 305 of the Code and the reported decision of Maharastra Vegetable Products Ltd. v. State of Orissa and Ors. (1990) 3 OCR 108. 5. Various provisions like Sections 240, 242, 313 of the Code provide a concrete expression to the principle of natural justice. In trial of warrant cases, Sub-section (2) of Section 240 provides that the Magistrate framing charge against the accused shall read over and explain to the accused, the charges leveled against him and the accused shall be asked whether he pleads guilty of the offence charged or claims to be trial. Section 242 of the Code provides that when the accused refuses to plead or does not plead, or claims to be tried the Magistrate shall examine all such evidence as may be produced in support of the prosecution. Section 273 of the Code provides that all evidences taken in course of trial or other proceeding shall be taken in presence of the accused or when his personal attendance is dispensed with, in presence of his pleader. After closure of evidence from the side of the prosecution a duty is cast upon the court u/s 313 of the Code to put all such incriminating materials to the accused so as to give him an opportunity to explain the incriminating evidence appearing against him. This is a concrete expression of the principles of natural justice. Before condemning any person, the charges leveled against him should be explained to him, evidence against him should be recorded in his presence, and he should be given an adequate and reasonable opportunity of being heard. 6. This is a concrete expression of the principles of natural justice. Before condemning any person, the charges leveled against him should be explained to him, evidence against him should be recorded in his presence, and he should be given an adequate and reasonable opportunity of being heard. 6. The court will not face any problem of following the above procedure in case of a real person but when it tries a case wherein the offence alleged to have been committed by an juridical person like a Company whose physical presence cannot be secured in the court for explaining the charge, recording the evidence and examination u/s 313 of the Code, the court faces a practical problem. The Company in such criminal cases had to be represented by its nominee. It is noted that no such provision was there in the Code of Criminal Procedure, 1908. As such the provision of Section 305 of the Code was introduced. 7. Section 305 provides for the procedure when corporation or registered society is an accused. Under Sub-section (1) of that Section, it is provided that "corporation" means any incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860. Sub-section (2) provides that where a corporation is the accused person or one of the accused persons in an enquiry or trial, it may appoint a representative for the purpose of inquiry or trial and such appointment need not be under the seal of the corporation. Sub-section (3) provides that where a representative of a corporation appears, any requirement of this Code that anything shall be done in presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that thing shall be done in presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representatives shall be examined. Sub-section (4) provides that where a representative of a corporation does not appear, any such requirement as is referred to in Sub-section (3) shall not apply. Sub-section (5) speaks about the appointment of such representative by the Managing Director of the Company and Sub-section (6) speaks about the duty of the Court to determine whether any person is representative of the corporation or not if such a question arises. Sub-section (5) speaks about the appointment of such representative by the Managing Director of the Company and Sub-section (6) speaks about the duty of the Court to determine whether any person is representative of the corporation or not if such a question arises. 8. Sub-section (3) of Section 305 in essence lays down that charges should be read over and explained to the representative of the Company, the evidence should be recorded in his presence and he should be examined u/s 313 of the Code, for and on behalf of the Company. The provision has been enacted to overcome practical difficulties in trial of a Corporation. In that situation, his representative is to be examined, charge has to be explained etc., It is also very clear that the Parliament have not used the word accused to describe the representative of the Company. Hence, a representative of the Company is not an accused and, therefore, there is no need to him for surrender in the court and go on bail. 9. This question can also be seen from another angle. Section 436 speaks of the duty of the court to release the accused on bail in case he is arrested etc., for offences which are bailable in nature. Section 437 provides that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of the police station or appears or is brought before the court other than the High Court or Court of Session, he may be released on bail subject to certain conditions. So, the question of bail arises only when (i) any person is a accused of or suspected of the commission of bailable or non-bailable of offences and (ii) he is arrested by the police officer or he appears or brought before the court. There is no dispute regarding the assertion that the Company, DITCO is the accused and HP. Gupta is its representative. The representative appointed u/s 305 Code is not a person accused of or suspected of commission of offence nor he has been arrested or detained without warrant. So, there is no necessity of his applying for bail. 10. Thus, this Court comes to the conclusion that there is absolutely no necessity of the representative praying for bail before the Magistrate. The representative appointed u/s 305 Code is not a person accused of or suspected of commission of offence nor he has been arrested or detained without warrant. So, there is no necessity of his applying for bail. 10. Thus, this Court comes to the conclusion that there is absolutely no necessity of the representative praying for bail before the Magistrate. My view is supported by the reported decision of Maharastra Vegetable Products Ltd. v. State of Orissa and Ors. (supra). Hence, this Court comes to the conclusion that the order passed by learned Special C.J.M. (CBI) Bhubaneswar on 17.12.2009 in S.P.E. No. 32 of 1994 is illegal and unsustainable. 11. In the result, the revision petition is allowed and the aforesaid impugned order is set aside. The present Petitioner shall appear before the learned Magistrate representing the accused-Company. The CRLREV is accordingly disposed of. Final Result : Allowed