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2011 DIGILAW 445 (JHR)

Mahabir Prasad Rungta v. State of Jharkhand

2011-05-16

D.K.SINHA

body2011
JUDGMENT D.K. Sinha, J. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure for quashment of the entire criminal proceedings against him, arising out of Gidi P.S. Case No.48/2006, including the order dated 10.6.2010 by which cognizance of the offence was taken under Section 414 of the Indian Penal Code as also under Section 33 of the Indian Forest Act. 2. Prosecution story in short was that on tip off, the police party raided the Ramgarh Sponge Iron (P) Ltd., Hosir in the night of 7.7.2006 and seized 160 bags of coal being carried on equal number of bicycles. Total weight of the coal carried in the bags were assessed about 10 tonnes. 160 bicycles with 160 coal bags were seized and were made over to the custody of the security guard present at the gate of the Ramgarh Sponge Iron (P) Ltd. against preparation of undertaking after preparation of the seizure list in presence of the independent witnesses. On the self statement of the informant police officer, Gidi P.S. Case No.48/2006 was instituted against the Occupier and the Manager of Factory as also against 160 unknown culprits who carried coal bags on cycles. Police after investigation submitted charge-sheet against the petitioner Mahabir Prasad Rungta and another Mahabir Prasad Ritolia for the alleged offence under Section 414 of the Indian Penal Code, Section 33 of the Indian Forest Act as also under Section 30 (iii) of the Coal Mines Act. The learned CJM after perusal of the materials on the record, took cognizance of the offence only under Section 414 of the Indian Penal Code and under Section 33 of the Indian Forest Act against the accused. In the charge-sheet, it was stated by the Investigating Office that the petitioner was the owner of Ramgarh Sponge Iron (P) Ltd., Hosir and his official address was also mentioned as 107, Pragati Tower, 26-Rajendra Place, New Delhi. As regards other unknown 160 accused persons in the FIR, it was explained in the charge-sheet that no clue could be found against any of them. 3. Learned counsel Mr. As regards other unknown 160 accused persons in the FIR, it was explained in the charge-sheet that no clue could be found against any of them. 3. Learned counsel Mr. Pandey Neeraj Rai submitted that the charge-sheet was submitted against the petitioner treating him as the occupier/owner of the Ramgarh Sponge Iron (P) Ltd. Admittedly, the factory was run by a company registered under the Indian Companies Act, as such, Ramgarh Sponge Iron (P) Ltd. was having a separate juristic entity, which owns the factory as a person capable of owning property, as such, the petitioner could not be held as the owner. 4. Mr. Rai, the learned counsel, further submitted that no vicarious liability can be fastened against individual under a penal legislation unless it would have been an individual criminal act by him. Offences as alleged against the petitioner in the circumstances do not admit such vicarious liability, therefore, his prosecution was illegal, unwarranted and uncalled for. Admittedly, there was no allegation that the petitioner had committed any illegal act rather it was stated in the charge-sheet that the petitioner had been living permanently and functioning officially at Delhi. Therefore, attribution against him of any crime in the factory situated within the district of Hazaribagh cannot be sustained under law. 5. Advancing his argument, Mr. Rai further submitted that it would be evident from the re-statement of the informant that only five bags of coal carried in five bicycles were recovered from inside the factory, whereas recovery of 155 bags of coal was made from 155 bicycles from outside of the factory premises and 5 bags of steam coal would have been there to be used in cooking food for labourers. Therefore, the earlier version of the informant was controverted by his own version in his restatement and therefore, recovery of 160 bags of coal from 160 bicycles from the factory premises was a false allegation, brought about to malign the reputation of the factory. 6. Learned counsel pointed out that in course of investigation when the Investigating Officer visited the factory premises to his utter surprise, as recorded in para-92 of the case diary, he did not find single bicycle nor any bag of steam coal claimed to be entrusted to the security guard of a private company posted there. 6. Learned counsel pointed out that in course of investigation when the Investigating Officer visited the factory premises to his utter surprise, as recorded in para-92 of the case diary, he did not find single bicycle nor any bag of steam coal claimed to be entrusted to the security guard of a private company posted there. Even the witnesses of the seizure list could not be located by the Investigating Officer during investigation as he recorded in para-97 of the case diary and therefore, the allegations as made in the FIR could not be substantiated during investigation of the case by the Investigating Officer, yet the charge-sheet was submitted. It was purely non-application of mind while implicating the petitioner as the owner of the factory and the co-accused being the General Manager of the said factory being a Private Limited Company. 7. In Maksud Saiyed versus State of Gujarat and others, reported in (2008) 5 Supreme Court Cases 668), the Apex Court held, “13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.” 8. According to the learned counsel, prosecution failed to show that the petitioner was vicariously liable under the statement being the occupier of the factory, though it was admitted that he was residing at Delhi. According to the learned counsel, prosecution failed to show that the petitioner was vicariously liable under the statement being the occupier of the factory, though it was admitted that he was residing at Delhi. As a matter of fact, there was no material in the case diary at all for submission of final report under Section 173 of the Code of Criminal Procedure against the petitioner as neither recovery of coal nor recovery of bicycle could be made by the Investigating Officer either to substantiate the allegation by submission of final report. The Investigating Officer could not record the statement of the witnesses of the seizure list during course of investigation, so factually there was no legal evidence, but the learned CJM without application of judicial mind took cognizance of the offence, which is liable to be quashed including the criminal proceedings of the petitioner in the instant case. 9. Heard Mr. Md. Hatim, the learned A.P.P. on behalf of the State, who did not dispute the contention as raised from the case diary by the petitioner. 10. Having regard to the facts and circumstances of the case, relying upon the decision of the Apex Court in Maksud Saiyed versus State of Gujarat and others (supra), referred to hereinbefore, as also on the factual aspect discussed hereinabove on behalf of the petitioner, I find and observe that the learned CJM without application of judicial mind and in mechanical exercise of power, without considering that no vicarious liability could be fastened upon the petitioner as owner of the factory, which was a private limited company and without any legal evidence factually in the circumstances discussed above, took cognizance of the offence, which tantamounts to misuse of the process of the Court which cannot be sustained under law. 11. Accordingly, this criminal miscellaneous petition is allowed and the impugned order dated 10.6.2010 by which cognizance of the offence was taken in Gidi P.S. Case No.48/2006, corresponding to G.R. No.1924/2006 including the criminal proceedings of the petitioner is set aside.