of Punjab Vs. Kasturi Lal & Ors  Insc
415 (28 July 2004)
Variava & Arijit Pasayat
out of SLP (Crl.) No.4360/2003) ARIJIT PASAYAT, J
State of Punjab questions legality of the judgment
rendered by a learned Single Judge of the Punjab and Haryana High Court in Criminal Revision No.326 of 1998. A petition
was filed under Section 401/482 of the Code of Criminal Procedure , 1973 (in
short the 'Code') questioning correctness of the order passed by learned
Special Judge, Sangrur framing charges against the present respondents and one Prem
Mohan Tiwari for alleged violation of the provisions contained in Section 7 (1)
(a) (ii) of the Essential Commodities Act, 1955 (in short the 'Act').
was framed by learned Special Judge by order dated 16.9.1997 holding that there
was infringement of the provisions of Vegetable Oil Products Control Order,
1947 (in short the 'Control Order') as amended under Section 3(1) of the Act.
Samples of the vegetable oil product were drawn from the premises of M/s Sangrur
Vanaspati Mills Ltd. on 29.4.1992 and on analysis the sample was found to
contain 78% of solvent mustard oil as against the permitted limit of 20%. A challan
under Section 173 of the Code was filed in the Court of Special Judge, Sangrur
and the present respondents and aforesaid Prem Mohan Tiwari were arrayed as
accused persons. While the accused Prem Mohan Tiwari was the Production Manager
of the company, others were Directors of the company. Before the Special Judge,
the accused persons opposed framing of charge on various grounds. Their main
plank of the argument was that since Prem Mohan Tiwari was nominated by the
company to be in charge and responsible to the company for conduct of the
business, no one else could be arrayed as accused. The plea did not find
acceptance and the learned Special Judge framed the charge against the accused
persons in terms of Section 7(1)(a)(ii) of the Act. The accused persons filed
the Criminal Revision and Criminal Misc. No. 16907-M of 1998 was also filed to
quash the challan under Section 173 of the Code which was taken up along with
the Criminal Revision. As noted above, by the judgment which is impugned in the
present appeal the High Court came to hold that it was only Prem Mohan Tiwari who
was to face trial and charge so far as the others are concerned to be quashed.
It was held that there was no definite material to show that they were in
charge of running of business and/or responsible therefor.
to the learned counsel for the State of Punjab the view taken by the High Court is erroneous. At the stage of framing
charge all that was required to be found out was whether there was any material
to proceed against the accused persons. That being the position, the High Court
ought not to have threadbare examined as to whether the complainant established
about the present respondents being connected with and responsible for running
of business for contravention of the statutory provisions.
response, learned counsel for the respondents submitted that there was no
material to show that any of them was in charge of and/or responsible to the
company for the conduct of the business. That being so, the High Court was
justified in its view.
appreciate rival submissions it would be necessary to take note of Section 10
of the Act. The said provision reads as follows:
If the person contravening an order made under Section 3 is a company, every
person who, at the time the contravention was committed, was in charge of, and
was responsible to, the company, shall be deemed to be guilty of the
contravention and shall be liable to be proceeded against and punished
that nothing contained in this sub-section shall render any such person liable
to any punishment if he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent such contravention.
Notwithstanding anything contained in sub-section (1), where an offence under
this Act has been committed by a company and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer of
the company such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
For the purpose of
"company" means any body corporate, and includes a firm or other
association of individuals; and
"director" in relation to a firm means a partner in the firm."
section appears to our mind to be plain enough. If the contravention of the
order made under Section 3 is by a company, the persons who may be held guilty
and punished are
every person who, at the time the contravention was committed, was in charge
of, and was responsible to, the company for the conduct of the business of the
company whom for short we shall describe as the person-in- charge of the
any director, manager, secretary or other officer of the company with whose
consent or connivance or because of neglect attributable to whom the offence
has been committed, whom for short we shall describe as an officer of the
company. Any one or more or all of them may be prosecuted and punished. The
company alone may be prosecuted. The person-in-charge only may be prosecuted.
The conniving officer may individually be prosecuted. One, some or all may be
is no statutory compulsion that the person-in-charge or an officer of the
company may not be prosecuted unless he be ranged alongside the company itself.
Section 10 indicates the persons who may be prosecuted where the contravention
is made by the company. It does not lay down any condition that the
person-in-charge or an officer of the company may not be separately prosecuted
if the company itself is not prosecuted. Each or any of them may be separately
prosecuted or along with the company. Section 10 lists the person who may be
held guilty and punished when it is a company that contravenes an order made
under Section 3 of the Essential Commodities Act. Naturally, before the person
incharge or an officer of the company is held guilty in that capacity it must
be established that there has been a contravention of the order by the company.
above position was highlighted in Sheoratan Agarwal and Anr. V. State of Madhya Pradesh (1984 (4) SCC 352).
scope for interference with an order framing charge in terms of Section 482 of
the Code is extremely limited.
of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The section does not confer any new powers on the
High Court. It only saves the inherent power which the Court possessed before
the enactment of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely,
give effect to an order under the Code,
prevent abuse of the process of court, and
otherwise secure the ends of justice.
neither possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that may possibly arise.
therefore, have inherent powers apart from express provisions of law which are
necessary for proper discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the Section which merely
recognizes and preserves inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of any express provision, as
inherent in their constitution, all such powers as are necessary to do the
right and to undo a wrong in course of administration of justice. While
exercising powers under the Section, the Court does not function as a court of
appeal or revision. Inherent jurisdiction under the Section though wide has to
be exercised sparingly, carefully and with caution and only when such exercise
is justified by the tests specifically laid down in the Section itself. It is
to be exercised ex debito justitiae to do real and substantial justice for the
administration of which alone courts exist.
of the court exists for advancement of justice and if any attempt is made to
abuse that authority so as to produce injustice, the court has power to prevent
such abuse. It would be an abuse of process of the court to allow any action
which would result in injustice and prevent promotion of justice.
exercise of the powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve the ends of justice.
When no offence is disclosed by the complainant, the court may examine the
question of fact. When a complaint is sought to be quashed, it is permissible
to look into the materials to assess what the complainant has alleged and
whether any offence is made out even if the allegations are accepted in toto.
R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this Court
summarized some categories of cases where inherent power can and should be
exercised to quash the proceedings.
it manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
the allegations in the first information report or complaint taken at its face
value and accepted in their entirety do not constitute the offence alleged;
the allegations constitute an offence, but there is no legal evidence adduced
or the evidence adduced clearly or manifestly fails to prove the charge.
State of Haryana v. Bhajan Lal (1992 Supp (1) SCC
335) the categories were enumerated as follows:
Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against the accused.
Where the allegations in the first information report and other materials, if
any, accompanying the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.
Where the uncontroverted allegations made in the F.I.R. or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
Where the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non- cognizable offence, no investigation is permitted by a
Police Officer without an order of a Magistrate as contemplated under S. 155(2)
of the Code.
Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused.
Where 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.
Where a criminal proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and
similar provision is contained in Section 141 of Negotiable Instruments Act,
1881 (in short N.I. Act). The scope and ambit of the said provision has been
examined by this Court in several cases. A three Judge Bench in Rajlakshmi
Mills v. Shakti Bhakoo (2002) 8 SCC 236 held as follows:- "The appellant
had filed a criminal complaint against the respondent as well as her
brother-in-law Anoop Bhakoo under Section 138 of the Negotiable Instruments Act
because of dishonour of a cheque which had been issued by M/s Sutlez Knitwears
of which Anoop Bhakoo and the respondent were partners. Against the summoning
order passed by the Magistrate, the respondent filed a petition under Section
482 Cr.P.C. after the respondent's application for discharge was unsuccessful.
High Court invoked the provisions of Section 141 of the Negotiation Instruments
Act and came to the conclusion that as the respondent was not in charge or
responsible for the conduct of the business, therefore the order summoning her
was bad in law.
of the opinion that at the stage of summoning when evidence was yet to be led
by the parties, the High Court could not on an assumption of facts come to a
finding of fact that the respondent was not responsible for the conduct of the
business. On this ground alone, these appeals are allowed and the impugned
decision of the High Court is set aside." Above being the position, we are
of the view that the High Court was not justified in quashing the charge framed
so far as the present respondents are concerned. We make it clear that we are
not expressing any opinion on the merits of the case. It goes without saying
that the trial Court shall consider the evidence and materials to be placed by
the parties in the proper perspective and in accordance with law. The appeal is
allowed to the extent indicated above.