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Gujarat High Court · body

2016 DIGILAW 1229 (GUJ)

MARICO LTD. v. STATE OF GUJARAT

2016-07-01

A.J.SHASTRI

body2016
JUDGMENT : 1. The present Criminal Misc. Application is filed by the applicants under Section 482 of the Code of Criminal Procedure for quashing and setting aside the order of issuance of notice dated 30.08.2012 passed below Exhibit 161, whereby the original complainant is seeking to implead applicants nos. 2 to 8 being the Directors in Criminal Case No. 11 of 2009, pending on the file of learned Judicial Magistrate, First Class, at Muglisara, District : Surat. 2. The case of the applicants is that applicant no. 1 is a Company registered under the Companies Act, 1956 and is engaged in the business of manufacturing, marketing and distributing for sale, stocking for sale and selling the food articles including 'Saffola Tasty Losorb Technologies through their manufacturing unit. Respondent no. 2 is the Food Inspector who is the original complainant, has lodged a complaint bearing Criminal Case No.11 of 2009 against Salesman – Rushikesh G. Shah and other eight persons including applicant no. 1 Company namely Marico Ltd. The said complaint came to be filed on 20.03.2009 in the Court of learned Judicial Magistrate, First Class, Surat under Section 7 read with Section 6 of the Prevention of Food Adulteration Act, 1954 and Rules [the “Act” for short]. On 25.11.2008, the sample of Saffola Tasty Losorb Technology, one liter pouch was collected and the same was found to be adulterated as it did not comply with the standards laid down under the provisions of prevailing Food Adulteration Rules, 1955 which allowed the complainant to lodge Criminal Case No. 11 of 2009 before the learned Judicial Magistrate, First Class, at District : Surat. The criminal case appears to have been filed after getting proper consent/approval from the competent authority to lodge the prosecution. Applicant No.1 – Company is a legal entity and had appointed as a nominee one Mr. Naresh Gehlaud under Section 17 subsection (2) of the Act and the case was pending. It is the case of the applicants that the said case is pending wherein yet the trial is not commenced and even plea of the accused is not recorded and it is at the stage of precharge evidence and the said precharge evidence is yet to be recorded. It is the case of the applicants that the said case is pending wherein yet the trial is not commenced and even plea of the accused is not recorded and it is at the stage of precharge evidence and the said precharge evidence is yet to be recorded. It is the case of the applicants that after a period about three years, after filing of the complaint, the complainant preferred an application below Exhibit 161 seeking to implead the Directors of the Marico Ltd., as accused persons in the criminal prosecution and upon such brief application, straightaway the learned Magistrate on 30.08.2012 was pleased to issue notice. The case of the applicants is that bare look of the said application would clearly indicate that all the Directors are not to be dragged into prosecution. However, without looking at it, straightaway, the application came to be entertained and notice is issued upon the present applicants more particularly, applicants nos. 2 to 8. It is in the background of this eventuality, the present applicants have approached this Court by invoking Section 482 of the Code of Criminal Procedure for seeking quashing and setting aside the order dated 30.08.2012 passed below Exhibit-161. The Court while entertaining this application, initially notice came to be issued and thereafter, by detail order on 05.09.2013 relying upon two decisions as incorporated in the order dated 05.09.2013, interim order came to be granted in respect of the impugned order. Since then, the case is pending. Later on, the application came up for consideration before this Court on 10.04.2014 wherein in view of the interpretation of Section 20(A) of the Act, the matter deserves consideration, came to be admitted and now same has come up for final disposal. 3. Learned advocate Ms. Megha Jani appearing on behalf of the applicants contended that, the application Exhibit 161 is premature. In the sense, that yet the trial of the criminal case has not commenced and it has been stated before the Court that powers are always available to the Court that during the course of trial, if ultimately, the learned Magistrate, found something against the Directors, then at that stage, they can be joined as accused persons, but at pretrial stage, it is not open for the learned Magistrate to entertain such application. It was further contended on behalf of the applicants that no offence under the provisions of Food Adulteration Act is made out against the applicants and the learned advocate has specifically pointed out that there is no averment in the main application or even in the complaint that the Directors of the applicant no. 1Company are connected even remotely with the alleged offence. There appears to be no single averment qua applicants nos. 2 to 8 to the effect that they are looking after the day to day business/day to day affairs of the Company and, therefore, on this ground alone, the learned counsel requested the Court to set aside the impugned order. It is further pointed out by the learned counsel that it is obligatory on the part of the complainant to indicate in the complaint itself that to how and in what manner the concerned Director is incharge of or responsible in routine day to day affairs of the Company to shift vicarious liability. A bare reading of the complaint is not incorporating any averment which would remotely suggest that applicants nos. 2 to 8 are responsible for the affairs of the Company. The learned counsel further submitted to the Court that the Directors can be dragged in the prosecution only if there is no nominee appointed under Section 17 of the Act and herein in the present case, the nomination has already been placed on the record with a specific name as required under Section 17 of the Act and, therefore, the Company itself has taken up prosecution seriously and has disputed nominee to face trial and, therefore, it is not gainsay to say that all the Directors i.e. applicants nos. 2 to 8 are responsible for the affairs of the Company or for commission of alleged offence. In the background of these facts, the learned counsel has drawn attention to the decision of the Apex Court in the case of Omprakash Shivprakash v. K.I. Kuraikose & Ors.. 2 to 8 are responsible for the affairs of the Company or for commission of alleged offence. In the background of these facts, the learned counsel has drawn attention to the decision of the Apex Court in the case of Omprakash Shivprakash v. K.I. Kuraikose & Ors.. reported in (1999) 8 SCC 633 , wherein it has been pointed out that Section 20(A) of the Act can be resorted to at a particular stage and that stage is not pretrial, but post-trial stage and, therefore, at this stage of the proceedings when even pretrial evidence is yet to be recorded, charges are yet to be framed, application submitted by the complainant is not tenable, no entertainable as the same is premature. Relying upon this decision of the Apex Court even this Court has also delivered a decision on 23.04.2012 rendered in Criminal Misc. Application No. 12093 of 2008 wherein also, similar view is taken and it has been propounded that Section 20(A) of the Act powers are meant to be exercised after commencing of the trial and, therefore, the order passed by the learned Magistrate is without jurisdiction and, therefore, since it is at the premature stage, the same deserves to be quashed in the interest of justice. The learned counsel further submitted that if ultimately, after the trial, if the learned Magistrate find that there is some material qua applicants nos. 2 to 8, it is always open for the learned Magistrate to invoke powers under Section 20(A) of the Act. Therefore, to permit the prosecution to join the Directors at this stage of the prosecution is nothing but abuse of process of law and, therefore, in the background of these facts and circumstances, the learned counsel for the applicants requested the Court to set aside the impugned order. 4. As against that, learned advocate Mr. K.I. Shah appearing on behalf of respondent no. 2 has submitted that the order passed by the learned Magistrate is just and proper and has also contended that enough material is found where upon the complaint came to be filed by respondent no. 2 and, therefore, it is requested not to entertain the application. Learned counsel for respondent no. K.I. Shah appearing on behalf of respondent no. 2 has submitted that the order passed by the learned Magistrate is just and proper and has also contended that enough material is found where upon the complaint came to be filed by respondent no. 2 and, therefore, it is requested not to entertain the application. Learned counsel for respondent no. 2 submitted that the learned Magistrate has exercised jurisdiction in due discharge of its discretion and since the order passed by the learned Magistrate is supported by cogent reasons, no inherent jurisdiction be allowed to be invoked for setting aside the impugned order. It is pointed that the allegations are serious and, therefore, irrespective of the technicalities, let the accused persons be allowed to be joined and face the trial. The learned counsel for respondent no. 2 also submitted that the nomination whether continued or not is also worth to be taken care of and it is obligatory on the part of the applicant no. 1 – Company to state and point out to the Court whether the said nomination is continued or not. The learned counsel for respondent no. 2 submitted that inherent powers of this Court may not be exercised more particularly, when the complaint is at large before the learned Magistrate. Technical consideration may not be allowed to be prevailed over, especially when the complaint is at initial stage. The learned counsel submitted that there are decisions to the effect that powers under Section 20(A) of the Act can be exercised and the learned Magistrate has rightly exercised discretion by issuing notice upon application Exhibit 161. In the background of this fact, while strongly agitating the stand of the learned counsel for the applicants, learned advocate Mr. Shah has relied upon two decisions of the Apex Court in the case of Bhagwan Das Jagdish Chander v. Delhi Administration reported in 1975 (1) SCC 866 as well in the case of State of Punjab v. Devinder Kumar reported in 1983 (2) SCC pg.384 and then contended not to exercise inherent jurisdiction in favour of the applicants. The learned counsel further candidly submitted that Section 20(A) of the Act, powers can be exercised whether at pretrial stage or after the trial commences is left to the decision of this Court and, therefore, by submitting this, the learned counsel requested the Court to dismiss the application. 5. The learned counsel further candidly submitted that Section 20(A) of the Act, powers can be exercised whether at pretrial stage or after the trial commences is left to the decision of this Court and, therefore, by submitting this, the learned counsel requested the Court to dismiss the application. 5. As against this learned APP Ms. Jirga Jhaveri has supported the case of the prosecution by stating that the order passed by the learned Magistrate is in due discharge of his duty to exercise discretion and, therefore, issuance of notice upon the Directors in an application at Exhibit 161 is proper exercise of jurisdiction and therefore, there is not infirmity in exercising the jurisdiction and, therefore, requested the Court to dismiss the application. 6. Having heard the learned counsel for the parties to the application, having perused the material on record and the decisions cited by the respective advocates following issues are emerging for consideration of this Court : (1) Whether Section 20(A) of the Act on its interpretation can be invoked at this stage of the proceeding where yet the pretrial evidence is not commenced. (2) The word “trial” is to be interpreted in the manner in which the learned Magistrate and the learned advocate for the respondent is trying to interpret and thereby invoking section 20(A) of the Act at this stage of the proceedings. 6.1. In response to the aforesaid position emerging from the record, first and the foremost consideration of the Court is to ascertain the meaning of word “trial”. Section 2(g) of the Code of Criminal Procedure has defined the word “inquiry”, which reads as under : “2(g) 'Inquiry' means every inquiry other than a trial, conducted under this Code by a Magistrate or Court;” Section 2(h) of the Code is dealing with the words “investigation” which reads as under : “2(h) 'Investigation' : Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; Section 2(i) of the Code of Criminal Procedure deals and define the “judicial proceeding” which reads as under : 2(i) “judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath; 6.2. Section 2(g) of the Code of Criminal Procedure as referred above which is defining 'inquiry' clearly envisage the inquiry before the actual commencement of the trial and is an act conducted in the Code of Criminal Procedure by the Magistrate or the Court. The word 'inquiry' is, therefore, not an inquiry relating to investigation of a case by the Investigating Agency, but is an inquiry after the case is brought to the notice of the Court on filing of the charge sheet. The Court can thereafter proceed to make inquiries and it is for this reason that inquiry has been given to mean something other than the actual trial. 6.3. In the context of the aforesaid definition and the meaning of word 'inquiry', if a trial to be understood which means determination of issues adjudging the guilt or innocence of a person, the person has to be aware of what is the case against him and it is only at that stage of framing of the charges, that the Court informs him of the same, the trial commences only on charges being framed. Therefore, it appears that Section 20(A) of the Act presupposes the commencement of the trial before invocation of it. The aforesaid position can well be appreciated from the recent decision of the Apex Court in the case of Hardeep Singh v. State of Punjab & Ors., reported in AIR 2014 SC pg. 1400 which has speltout that under which contingencies trial can be said to have been commenced and, therefore, relevant paragraphs of the same are worth to be taken note and hence reproduced herein after. “25. The stage of inquiry commences, insofar as the court is concerned, with the filing of the chargesheet and the consideration of the material collected by the prosecution, that is mentioned in the chargesheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g), Cr.P.C., which defines an inquiry as follows: "2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court." 27. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly and Anr. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly and Anr. v. State of Kerala, AIR 2004 SC 1890 , this Court observed that though the word 'trial' is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. A three Judge Bench of this Court in The State of Bihar v. Ram Naresh Pandey and Anr., AIR 1957 SC 389 held: "The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration." (Emphasis added) 35. In view of the above, the law can be summarised to the effect that as 'trial' means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the 'trial' commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.” 6.4. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.” 6.4. Therefore, in view of the above position, coming back to the facts of the present case, as per the say of the applicants and it is in dispute that the case is at present at the stage of pretrial evidence and yet the charge has not been framed and, therefore, in the context of the aforesaid discussion, exfacie it appears that this is not the stage where Section 20(A) of the Act can be invoked or allowed to be invoked. Section 20(A) of the Act has specifically pointed out that the power of the Court to implead manufacturer or any other person whether it appears to him during the course of trial of any offence under the Act, with any person, either the manufacturer, distributor or dealer of any article of food, the Court is satisfied on the evidence adduced before it, that such manufacturer, distributor or the dealer as the case may be is also concerned with that offence then the Court can implead such person by invoking Section 20(A) of the Act and, therefore, this power of impleadment can be exercised during the course of trial, when evidence is adduced before the concerned Court. Section 20(A) of the Act reads as under : “20A. Power of court to implead manufacturer etc: Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence, then the court may notwithstanding anything contained in 2[subsection (3) of section 319 of the Code of Criminal Procedure, 1973 [2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.” 6.5. In the aforesaid situation, the learned counsel for the applicants has drawn attention to the decision of the Apex Court in the case of Omprakash Shivprakash (supra), wherein on similar issue, the Apex Court has on analysis of the words, Section 20(A) of the Act has propounded that powers of Section 20(A) of the Act cannot be invoked before the stage of adducing evidence in the trial nor can it be invoked after inquiry of the trial in the context of similar order under Section 319 of Code of Criminal Procedure. The relevant paragraphs of the said decision read as under : “8. Section 319 of the Code empowers the Court to proceed against any person who is not being made an accused already, if it appears from the evidence collected in the inquiry or trial of an offence that such person has committed an offence for which he could be tried together with the already arraigned accused. One of the differences between Section 319 of the Code and Section 20A of the Act is that, while in the former even if it appears to the Court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the Court can proceed against that other person, while in the latter the satisfaction of the Court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20A cannot be invoked until the trial begins and after the trial ends. 9. When does the "trial" begin as for an offence under the Act? The word "trial" is not defined either in the Act or in the Code. However, the Code has distinguished the trial from inquiry as could be noted from Section 2(g) of the Code wherein the word "inquiry" is defined thus : "Inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court." 10. The term "trial" cannot be given a fixed meaning to be applied in all cases uniformly. The connotation of that word changes with the difference in which the term is employed in a particular provision of any statute. The term "trial" cannot be given a fixed meaning to be applied in all cases uniformly. The connotation of that word changes with the difference in which the term is employed in a particular provision of any statute. This Court has said in State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389 : 1957 SCR 279 : (1957 Cri LJ 567) thus (Para 6 of AIR, Cri LJ) : "The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration." 12. The above scrutiny of the relevant provisions reveals that the trial of the offences under the Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code, if the Magistrate opts to hold summary trial. Hence, evidence in a trial under the Act can be adduced only after recording the plea of the accused as envisaged in the said section. Thus, it is clear that a Magistrate can implead any person under Section 20A of the Act only after reaching the stage envisaged in Section 254(1) of the Code. “ 6.6. Almost on similar situation, one another decision is brought to the notice of the Court delivered on 23.04.2012 rendered in Criminal Misc. Application No.12093 of 2008 wherein also, the very said decision is also considered by this Court and in paragraphs nos. 7 and 8, the Court has found that this is not the stage where powers of Section 20(A) of the Act can be exercised. “7. Application No.12093 of 2008 wherein also, the very said decision is also considered by this Court and in paragraphs nos. 7 and 8, the Court has found that this is not the stage where powers of Section 20(A) of the Act can be exercised. “7. From the principles enunciated in the above referred decision, it is apparent that for the purpose of invoking section 20A of the Act, the court in order to proceed against that other person must record satisfaction that such manufacturer (distributor or dealer) is also concerned with that offence, which must be gathered from the evidence adduced before it during the trial. In other words, the power under section 20A cannot be invoked until the trial begins and after the trial ends. The evidence in a trial under the Act can be adduced only after recording the plea of the accused as envisaged in the said section. Under the circumstances, a Magistrate can implead any person under section 20A of the Act upon recording satisfaction on the evidence adduced before him that such manufacturer, distributor or dealer is concerned with this offence, only after reaching the stage envisaged under section 20A of the Act. Power under section 20A cannot be invoked before the stage of adducing evidence in the trial. 8. Adverting to the facts of the present case, it is an admitted position that section 20A of the Act has been invoked before recording of the plea of the accused and not after recording satisfaction by the Magistrate on the evidence adduced during the course of trial that the applicants herein are concerned with the offence as envisaged under the said section, under the circumstances, the decision of the Supreme Court in Omparkash Shivprakash vs. K.I. Kuriakose and others (supra) would be squarely applicable. The impugned order under section 20A of the Act having been made prior to the recording of the plea of the accused, is contrary to the provisions of the said section and as such, cannot be sustained.” 6.7. The impugned order under section 20A of the Act having been made prior to the recording of the plea of the accused, is contrary to the provisions of the said section and as such, cannot be sustained.” 6.7. On further scrutiny it has appeared that this power under Section 20(A) of the Act is almost similar power to that of Section 319 of the Code of Criminal Procedure and dealing with such situation of powers Section 319 of Code of Criminal Procedure, the Apex Court has analyzed the position and propounded that the said exercise of powers can be at stage after the commencement of the trial and not before. 7. In view of the aforesaid proposition, it is clearly emerging from the statutory provisions that powers of Section 20(A) of the Act are to be exercised at the stage after the commencement of trial and, therefore, true meaning to word 'trial' is to be given, as has been given by the Apex Court in the decision referred to above and, therefore, by giving full effect to the statutory provisions of Section 20(A) of the Act, it appears to this Court that issuance of notice below Exhibit 161 is impermissible especially when the trial has not commenced, charge has not been framed and pretrial evidence is also yet to be recorded and, therefore, in the background of this fact, the submission made by learned advocate for the applicants deserves to be accepted. 8. In the context of powers under Section 319 of the Code of Criminal Procedure, the Apex Court in the case of Hardeep Singh (supra), addition of new persons as accused springs out of the doctrine judex damnatur cum nocens obsolvitur and held that powers under Section 319 of the Code of Criminal Procedure is to be given constructive and purposive interpretation which would advance the cause of justice and it has been curled out by the Apex Court that this power of addition of new accused can only be done on the basis of the material collected in inquiry by the Court or the Magistrate and that is also depending upon the evidence being led before the it. Paragraphs nos. 9 and 12 of the said decision deserve to be referred and are reproduced herein below : “9. Paragraphs nos. 9 and 12 of the said decision deserve to be referred and are reproduced herein below : “9. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the above mentioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is subject matter of trial. 12. Section 319, Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319, Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319, Cr.P.C.? The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.” 9. On true analysis of said statutory provisions and by giving full effect to the said provisions, the Apex Court has then propounded that the person can be arraigned as accused the moment the examination-in-chief is conducted and the Court need not wait for the crossexamination, meaning thereby, this power of addition of accused is made available only after recording of evidence and not after the trial having been commenced. Paragraphs nos. 82 and 83 to analyze the said position is referred as under : “82. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. Paragraphs nos. 82 and 83 to analyze the said position is referred as under : “82. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. 83. As held in Mohd. Shafi ( AIR 2007 SC 1899 ) (supra) and Harbhajan Singh (supra), all that is required for the exercise of the power under Section 319, Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straightjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under Section 319, Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words 'such person could be tried' instead of should be tried. Hence, what is required is not to have a minitrial at this stage by having examination and crossexamination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this minitrial that would affect the right of the person sought to be arraigned as an accused rather than not having any crossexamination at all, for in light of subsection (4) of Section 319, Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to crossexamine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by crossexamination, undoubtedly in itself, is an evidence. 84. Further, in our opinion, there does not seem to be any logic behind waiting till the crossexamination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319, Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the crossexamination is to be taken into consideration, the person sought to be arraigned as an accused cannot crossexamine the witness prior to passing of an order under Section 319, Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence , unless the witness is obliterating the role of persons already facing trial. Moreso, Section 299, Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein. 85. Thus, in view of the above, we hold that power under Section 319, Cr.P.C. can be exercised at the stage of completion of examination-in-chief and court does not need to wait till the said evidence is tested on crossexamination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person, not facing the trial in the offence. Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319, Cr.P.C.?” 10. Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319, Cr.P.C.?” 10. Therefore, from the aforesaid decision as well settled by the Apex Court, it can be safely concluded that the applicants can be arraigned if material is found at later point of time and not at the stage of the proceedings, this position of powers under Section 319 of the Code of Criminal Procedure vis-a-vis, powers of Section 20(A) of the Act appears as amply clear since long, still however, it appears that the learned Magistrate without application of mind has straightaway called upon to justify by issuing notice without verifying as to whether charge is framed or not, whether pretrial evidence is recorded or not and furthermost the material fact is that whether any specific allegation and the role is attributed or not. It is in this context it appears clearly that without application of mind, just for the sake of entertaining the application, straightaway notice came to be issued. 11. Apart from the aforesaid position on the legal issue, if reverting back to the case on hand, perusal of the application Exhibit 161 indicates that there is no independent assertion on the part of the complainant to indicate as to how these Directors who are mentioned are amenable to prosecution as their participation in the commission of offence is even remotely not ascertained. It is settled position of law that just for the sake of impleading the Directors without any attribution on them is impermissible. A bare reading of the application Exhibit 161 is submitted merely on the premise that on the said report of ROC, these persons names are figuring as Directors. Therefore, simply because they appear to be Directors of the Company, ROC would not ipso facto permit the complainant to implead all of them as accused persons in the complaint. In a series of decisions, time and again, the Apex Court have stated that to implead the person as an accused, there must be some specific role to be attributed. It must be shown by the complainant that relevant Director who is to be impleaded is incharge of the affairs of the Company or is incharge of the day to day affairs of the Company and in absence of such kind of assertion in the complaint, it is not germane to implead all the Directors as accused persons. It must be shown by the complainant that relevant Director who is to be impleaded is incharge of the affairs of the Company or is incharge of the day to day affairs of the Company and in absence of such kind of assertion in the complaint, it is not germane to implead all the Directors as accused persons. Herein in this case, a bare reading of this Exhibit 161 application indicates that there is no such assertion coming out from the complainant to arraign the present applicants as accused persons in the complaint and, therefore, apart from the interpretation of powers under Section 20(A) of the Act, a bare reading of the application itself is not warranting the learned Magistrate to issue even notice upon an application. 12. As held by series of decisions that issuance of summons or the notice is very serious step and it presupposes strong application of mind and looking to the importance of this power, summoning a person or issuing notice to arraign him in the prosecution, the learned Magistrate ought to have applied his mind while taking even application on hand i.e. application below Exhibit 161, the learned Magistrate has no obligation to apply his mind to the facts of the case and allow the application thereto and has to examine the nature of allegations made in the complaint and evidence and based upon such sufficient material, only thereafter, after giving suggestive satisfaction to the issue involved, may exercise such power. The Magistrate has to carefully scrutinized the material produced on record and even may put questions to the complainant to elicit answers to find out the truthfulness of the allegations. Herein in this case, powers of learned Magistrate as assumed that the applicants being the Directors are bound to face criminal prosecution, the moment the Company is arraigned as accused persons, but while assuming this, the learned Magistrate has forgotten the settled position of law that in such casual manner, a criminal law is not to be put to motion in routine manner against the person concerned. The learned Magistrate ought to have scrutinized the application before issuing notice upon it. From the aforesaid background, it appears to this Court that application below Exhibit 161 is not tenable at this stage of the proceedings and, therefore, deserves to be discarded by setting aside the order of issuance of notice upon it. 13. The learned Magistrate ought to have scrutinized the application before issuing notice upon it. From the aforesaid background, it appears to this Court that application below Exhibit 161 is not tenable at this stage of the proceedings and, therefore, deserves to be discarded by setting aside the order of issuance of notice upon it. 13. The learned counsel on behalf of the complainant has tried to diversify the attention from the core issue involved in the matter by citing two decisions in the case of Bhagwan Das (supra) as well in the case of State of Punjab (supra) whereby attempt is made to see that no powers under Section 482 of the Code of Criminal Procedure be exercised in favour of the applicants. In fact these decisions are slightly on the different footing and, therefore, in view of the fact that a slight change in the fact would make a world of difference in applying the principle of this Court and found that the decisions cited by the learned counsel for respondent no. 2 are not of avail. In the case of Bhagwan Das (supra) in the context of Sections 7 and 14 of the Act, the Apex Court has propounded that it is clear from Section 14 of the Act that manufacturer as well as the distributor can sell and the definition of sale given in Section 2 subsection (xiii) is wide enough to include every kind of seller. Every seller can be prosecuted of offence created by Section 7 of the Act which prohibits a sale as well as distribution of an adulterated article of food and, therefore, the background of the fact in this case is quite distinct from the present facts on hand and, therefore, it may not be applied as a law in the present case. In another decision in the case of Devinder Kumar (supra), the Apex Court was essentially dealing with powers under Section 482 of Code of Criminal Procedure and held that criminal proceedings are not be quashed by the High Court on slender grounds. In another decision in the case of Devinder Kumar (supra), the Apex Court was essentially dealing with powers under Section 482 of Code of Criminal Procedure and held that criminal proceedings are not be quashed by the High Court on slender grounds. Again in the said decision, the relevant provisions of the Act namely, the Prevention of Food Adulteration Act, 1954, Section 11 coupled with Rule 22(A) were being dealt with and Section 20 of the Act is under consideration and, therefore, the question entangled in the present proceedings is quite distinct from what is indicated in the aforesaid decision of the Apex Court and, therefore, the same is also not helpful to learned counsel for respondent no. 2. 14. In view of the aforesaid position and in the background of the present facts and circumstances, considering the principle of law on the relevant issues, this Court is of the opinion that the present applicants namely applicants nos. 2 to 8 are not be arraigned as accused persons at this stage of the proceedings and, therefore, the submissions made by the learned counsel for the applicants are accepted and in view of the fact that the order dated 30.08.2012 at Exhibit 161 passed in Criminal Case No. 11 of 2009 by the learned Judicial Magistrate, First Class, Surat is hereby quashed and set aside and the application is accordingly allowed to the aforesaid extent. 15. At this stage, the learned counsel for respondent no. 2 – complainant voiced out a little grievance which was raised during the course of hearing that nomination which has been furnished on record by the accused – Company is required to be continued by the company during the course of trial of the main case. The grievance and apprehension which is voiced out has got some substance and, therefore, left it open to the respondent no. 2 – complainant to agitate this issue before the concerned Court where the main case is pending. 16. In the circumstances, the present application stands disposed of. Rule is made absolute to the aforesaid extent. Petition allowed.