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2024 DIGILAW 729 (PAT)

P. R. S. Panicker v. State of Bihar

2024-08-06

JITENDRA KUMAR

body2024
Jitendra Kumar, J.—The present petition has been preferred against the impugned order dated 18.05.2016 passed by Ld. A.C.J.M-IX, Siwan in Criminal Complaint Case No. 536 of 2016, whereby Ld. Magistrate has taken cognizance of the offence punishable under Sections 264, 265, 266, 418, 420 and 379/120B of the Indian Penal Code against the General Manager, and Cane Manager of Vishnu Sugar Mills Limited, Gopalganj besides ones Ramashray Singh and Hare Ram Singh and had directed issuance of summons against them. 2. The prosecution case as emerging from the Criminal Complaint bearing No. 536 of 2016, filed by the Complainant, Santosh Singh is that he is a cane grower and sells sugarcanes to the sugar mill. It has been alleged that the representative of the Vishnu Sugar Mill Ltd. situated at Gopalganj came to the Complainant stating that the said sugar mill had opened a purchase centre in the village, Chaumukha, Siwan and requested him to sell sugarcanes at the said purchase centre, where there is no irregularity in weight and measure. On the basis of the representation, the Complainant started bringing his sugarcanes since 11.01.2016 to the said Chaumukha Cane Centre. When the Complainant doubted the correctness of the weight of the sugarcanes at the said purchase centre, on 23.01.2016, he got his sugarcanes weighed at another weight centre i.e Bajrang Dharamkata, located at Rasulpur, District- Saran, wherein the weight of one trailer of sugarcanes was found to be 64 quintal and 32 kg, whereas weight of another trailer was found to be 63 quintal and 60 kg, after which the Complainant got the same weighed at the Chaumukha Purchase Centre, where the weight shown was 55 quintal and 58 kg and 56 quintal 18 kg respectively. When the Complainat showed the discrepancy to the Accused No.3, Ramashray Singh and the Accused No.4, Hare Ram Singh, they claimed that the weight was correct. Accordingly, again on 26.01.2016 the Complainant got the sugarcanes weighed at the said Bajrang Dharamkata, where the weight was shown to be 57 quintal 30 kg, whereas, at the purchase centre, it was shown to be 49 quintal 97 kg. Discrepancy in the weight was again found on 29.01.2016. Accordingly, again on 26.01.2016 the Complainant got the sugarcanes weighed at the said Bajrang Dharamkata, where the weight was shown to be 57 quintal 30 kg, whereas, at the purchase centre, it was shown to be 49 quintal 97 kg. Discrepancy in the weight was again found on 29.01.2016. The weight at Bajrang Dharamkata was shown to be 62 quintal and 30 kg and 58 quintal and 40 kg of two trailers, whereas, the weight at the Chaumukha Purchase Centre was shown to be 54 quintal 70 kg and 50 quintal and 93 kg respectively. 3. Subsequently, the Complainant informed the discrepancy to the District Collector on 04.02.2016, after which inspection order was passed and on 05.02.2016 the Complainant weighed the sugarcanes again at the Bajrang Dharamkata, where it shows the weight as 61 quintal and 80 kg, whereas the weight of the sugarcanes at Chaumukha Purchase Centre in the presence of the Block Development Officer, Pachrukhi was found to be 53 quintal and 80 kg. Thereafter, the purchase centre was sealed. 4. Hence, the Complainant has claimed that the accused persons have kept defective weight measures at Chaumukha Purchase Centre and cheated the Complainant by weighing 8 quintal less than the actual one and have misappropriated the property of the Complainant. It has also been alleged that even the sale price of the sugarcane has also not been paid to the Complainant. The Complainant approached the local police and the District Magistrate, but no action was taken. Hence, the Complaint was filed. 5. Prior to the cognizance, the Complainant and two other witnesses were examined during enquiry under Section 200 Cr.PC. They have supported the allegation as made in the complaint. 6. Ld. Counsel for the Petitioner submits that the Petitioner is innocent and has falsely been implicated in this case. He further submits that the Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981 is special enactment dealing with purchase of sugarcane and in the Act, there is provisions regarding proper maintenance of purchase centres and measures of weight at the purchase centres and there is also penal provisions for violation of the provisions regarding purchase centre and weights and measurements. He further submits that in view of special enactment regarding violation in regard to weights and measurement, the application of general Act like IPC and even the Legal Meterology Act, 2009 get excluded. He further submits that in view of special enactment regarding violation in regard to weights and measurement, the application of general Act like IPC and even the Legal Meterology Act, 2009 get excluded. Hence, there is no question of application either of the IPC or even the Legal Meterology Act, 2009. In support of his submissions, he refers to Subodh Kumar Purbey vs. the State of Bihar and Others, 2017 SCC Online Pat 1881, wherein a co-ordinate Bench of this Court has held that in view of Section 51 of Legal Meterology Act, 2009, the provision of IPC is excluded. Ld. Counsel for the Petitioner also refers to Darshan Thakur vs. State of Bihar and Another, 2012 SCC Online Pat 43, wherein a co-ordinate Bench of this Court has held that in view of Section 52, Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981, providing for punishments for violation of the terms and conditions in regard to purchase centre, it is the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 which would apply and not general Acts covering the subject. 7. He further submits that for prosecution of any accused for offence punishable under Section 52 of the Sugarcane Act, sanction for prosecution of the officials is required under Section 53 of the Act. But there is no sanction obtained by the Complainant against the accused persons. 8. He also submits that as per the alleged facts and circumstances, it is the company, Vishnu Sugar Mill Limited which has violated the provisions of the Act but Vishnu Sugar Mill Limited is not impleaded as an accused. It is the officials of this company who have been impleaded as accused. The first accused is the Managing Director of the company, whereas the second accused is the Chief Cane Manager, and accused no.3 is the incharge of chaumukha purchase centre, whereas accused no. 4 is not alleged to be holding any office in the company. He submits that it is settled position of law that if the offender is a company, the complaint without impleading the company as accused, is not maintainable. Moreover, unless there is provision of vicarious liability for any office bearers of the company in the Act under which penal provision is provided, no office bearers can be prosecuted for vicarious liability of the company. Moreover, unless there is provision of vicarious liability for any office bearers of the company in the Act under which penal provision is provided, no office bearers can be prosecuted for vicarious liability of the company. Even, in case of vicarious liability, there is requirement of allegation of specific role played by the office bearers. Moreover, for prosecution of the officials, sanction is also required from the competent authority. But in the case on hand, no sanction has been obtained for prosecution of the office bearers of the company, nor any specific role on their part has been alleged. 9. Hence, it is submitted that the complaint was liable to be dismissed. Therefore, the impugned order is abuse of the process of the Court and liable to be set aside by this Court under Section 482 Cr.PC. 10. In the case on hand, I find that cognizance has been taken under Sections 264, 265, 266, 418, 420 and 379/120 of the Indian Penal Code. Sections 264, 265 and 266 relate with offences relating to weight and measure, whereas Sections 418 and 420 relate to cheating, whereas Section 379 deals with theft under IPC. However, cognizance of such offence under IPC has been taken in the factual background of defective measures of weight by the purchase centre of the Vishnu Sugar Mills, Chaumukha. The sum and substance of the allegation against the sugar mill is that on account of defective measures of weight, the purchase centre underweighed the sugarcanes and hence, the farmer/complainant was cheated of certain portion of sugarcanes sold to the purchase centre. There is also allegation of non-payment of the sugarcane price. 11. Here it is pertinent to point out that there is specific enactment, namely, Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981 dealing with the situation as alleged by the complainant/farmer. In this Act, there are specific provisions to ensure proper maintenance of purchase centre as well as measures of weight and payment of sugarcane to the farmers Under Section 39 of the Act, there is clear provision for the occupier of the every factory to ensure correct weighment of sugarcane purchased at the place of purchase. Section 43 of the Act also provides for payment of price of sugarcane to the farmers selling their sugarcanes to the purchase centre. Section 43 of the Act also provides for payment of price of sugarcane to the farmers selling their sugarcanes to the purchase centre. In violation of any statutory provisions of the Act, there is penal provision under Section 52 of the Act providing for prosecution of the company as well as the officials with sanction of the Competent Authority under Section 53 of the Act. It is settled principle of law that if there is a special enactment dealing with the particular subject, it would prevail over general Act. As such, in the alleged facts and circumstances, it is Section 52 of the Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981 which gets attracted and not the provisions of the Indian Penal Code. Under such facts and circumstances, the learned Magistrate should have taken cognizance under Section 52 of the Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981 and not under IPC. 12. But it is also relevant to note that as per the allegation the main accused is Vishnu Sugar Mills and it is settled principle of law that when allegation is made against a company, the company has to be impleaded as an accused as this Court has held in C.L. Shukla vs. State of Bihar, 2024 SCC Online Pat 856 after referring to various judgments. In Sharad Kumar Sanghi vs. Sangita Rane, (2015) 12 SCC 781 , held that the Managing Director of the company was made accused, whereas the company was not in the array of the accused. In that case, Hon’ble Supreme Court held that without making the company as an accused, proceeding against the Managing Director cannot continue. 13. Moreover, for prosecution under Section 52 of Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981, sanction for prosecution is also required under Section 53 of the Act. But in the case on hand, no sanction from the Competent Authority has been obtained by the prosecution. 14. 13. Moreover, for prosecution under Section 52 of Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981, sanction for prosecution is also required under Section 53 of the Act. But in the case on hand, no sanction from the Competent Authority has been obtained by the prosecution. 14. The impugned order taking cognizance of offence punishable under the IPC against the Petitionersis not sustainable also in view of settled position of law that if the allegation is against the company, the officials of the company can be prosecuted only if there is statutory provisions for vicarious liability of the officials of the company and there must be allegation of active role played by such officers with criminal intent, as this Court has held in C.L. Shukla case (supra) after referring to relevant judgments. In Sunil Bharti Mittal vs. CBI, [ (2015) 4 SCC 609 ], Hon’ble Supreme Court has clearly held that when a company is the offender, vicarious liability of the Directors cannot be imputed automatically in the absence of any statutory provisions to this effect. But learned Magistrate has not taken note of the fact that there is no statutory provisions under the IPC for vicarious liability. Sections 120B, 34 and 149 IPC provide for joint liability under certain circumstances. But they do not provide for vicarious liability of any officials of the company for offence committed by a company. In Maksud Saiyed vs. State of Gujarat, [ (2008) 5 SCC 668 ], Hon’ble Supreme Court has clearly held the Indian 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. Hence, cognizance of offence punishable under IPC against the officials of the company is also not sustainable in view of such legal position. 15. Hence, cognizance of offence punishable under IPC against the officials of the company is also not sustainable in view of such legal position. 15. In a celebrated Judgment of the State of Haryana vs. Bhajan Lal [1992 Suppl (1) SCC 335, Hon’ble Supreme Court has held, amongst other things, that if there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party, the inherent power as provided under Section 482 Cr.PC may be invoked. 16. In view of the aforesaid facts and circumstances, the impugned order is not sustainable in the eye. It is an abuse of the process of the Court of law and liable to be quashed and set aside under Section 482 Cr.PC. 17. Accordingly, the present petition is allowed. The impugned order is quashed and set aside.