Municipal Corporation of Delhi Vs. Ram
Kishan Rohtagi & Ors [1982] INSC 90 (1 December 1982)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VENKATARAMIAH, E.S. (J)
CITATION: 1983 AIR 67 1983 SCR (1) 884 1983
SCC (1) 1 1982 SCALE (2)1124
CITATOR INFO :
RF 1983 SC 158 (1) D 1983 SC 288 (3) R 1983
SC 595 (13) RF 1986 SC 833 (46) R 1989 SC 1 (6) R 1992 SC1168 (9)
ACT:
Code of Criminal Procedure, 1973-ss. 4827
397(2) and 319 - Allegations in complaint not constituting offence against
accused-Exercise of High Court's inherent power under s. 482 to quash
interlocutory order summoning accused not affected by s. 397(2)-Court has power
under s. 319 to proceed against such accused on production of additional
evidence.
HEADNOTE:
A Food Inspector of the Municipal Corporation
visited the premises of a shopkeeper and purchased a sample of toffees which,
when analysed by Public Analyst, was found not to conform to the prescribed
standards. In clause No. S of the complaint filed before the Magistrate it was
stated:
"That the accused No. 3 is the Manager
of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and
as such they were in-charge of and responsible for the conduct of business of
accused No.
2 at the time of sampling." Accused No.
2 was the Company which manufactured the toffees, accused No. 3 was its Manager
and accused Nos. 4 to 7 were its Directors (respondents l to 5 here). The
Magistrate passed an order summoning all the accused for being tried for
violation of ss. 7/16 of the Prevention of Food Adulteration Act and that order
was assailed before the High Court.
It was argued before the High Court that the
complaint did not attribute any criminal responsibility to the Directors
inasmuch as there was no clear averment of the fact that the Directors were
really in-charge of the manufacture of toffees and were responsible for the
conduct of business and that the words 'as such' in clause No. S of the
complaint indicated that the complainant had merely presumed that the Directors
of the Company must be guilty because they were holding a particular office.
The High Court accepted the argument and quashed the proceedings against the
Directors as well as the Manager of the Company.
In appeal, it was contended on behalf of the
appellant that on the allegations made in the complaint, a clear case had been
made out against all the respondents and the High Court ought not to have
quashed the proceedings on the ground that the complaint did not disclose any
offence.
Counsel for respondents contended that even
taking the allegations of the complaint ex facie no case for trial had been
made out.
885 Upholding the order of the High Court in
respect of quashing of proceedings against the Directors and allowing the
appeal in respect of quashing of proceedings against the Manager, ^
HELD: Where the allegations set out in the
complaint do not constitute any offence it is competent to the High Court
exercising its inherent jurisdiction under 8. 482 of the Code of Criminal
Procedure, 1973 to quash the order passed by the Magistrate taking cognizance
of the offence. It is true that s. 397(2) bars the jurisdiction of the court in
respect of interlocutory orders. But s. 482 confers a separate and independent
power on the High Court alone to pass orders ex debito justitiae in cases where
grave and substantial injustice has been done or where the process of the court
has been seriously abused. It is not merely a rovisional power meant to be
exercised against the orders passed by subordinate courts. Nothing in s. 397(2)
limits or affects the inherent power under s. 482. The scope, ambit and range
of the power under s. 482 are quite different from those of the power conferred
under s. 397. It may be that in some cases there may be overlapping but such
cases would be few and far between. It is well settled that the inherent powers
under s. 482 can be exercised only when no other remedy is available to the
litigant and Dot where a specific remedy is provided by the statute. It is
clear that proceedings against an accused in the initial stages can be quashed
only if on the face of the complaint or the papers accompanying the same, no
offence is constituted. The test is that taking the allegations and the
complaint as they are, without adding or subtracting anything, if no offence is
made out then the High Court would be justified in quashing the proceedings in
the exercise of its powers under s. 482.
[889 A-B, G; 887 C; 888 A-B; 887 G-H; 888
C-D; 890 A-B] Madhu Limaye v. State of Maharashtra [1978] 1 S.C.R.
749; Ra; Kapoor and Ors. v. State and Ors.,
[1980] 1 S.C.C. 43; Smt. Nagavva v. Veeranna Shivalingappa Konjalgi and Ors.,
[1976] Suppl. S.C.R. 123; and Sharda Prasad Sinha v. State of Bihar. [9771] 2
S.C.R. 357, referred to.
In the instant case, so far as the Manager of
the Company was concerned, from the very nature of his duties it could be
safely inferred that he would be vicariously liable for the offence as he must
have been in the knowledge of the manufacture and sale of the disputed sample.
So far as the Directors of the Company were concerned, there was nothing to
show, apart from the presumption drawn by the complainant, that there was any
act committed by them from which a reasonable inference could be drawn to the
effect that they were also vicariously liable and the High Court was right in
holding that no case had been made out ex facie on the allegations made in the
complaint. {891 D; 891 A; 891 E-F]
2. The mere fact that the proceedings have
been quashed against the Directors will not prevent the court from exercising
its discretion under s. 319 of the Code if it is fully satisfied that a case
for taking cognizance against them is made out on the additional evidence led
before it.
Section 319 gives ample powers to any court
to take cognizance and add any person not being an accused before it and try
him along with the other accused. However, this being an extraordinary power
conferred on the court, it should be used very sparingly and only if compelling
reasons exist for doing so. [893 G; 893 G; 893 F] Joginder Singh and Anr. v.
State of Punjab and Anr. [1979] 2 S.C.R. 306, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 701 of 1980.
Appeal by special leave from the Judgment and
order dated the 5th March, 1980 of the Delhi High Court in Criminal Revision
No. 335 of 1974.
B.P. Maheshwari for the Appellants.
M.C. Bhandari, Mrs. Madhhu Mull Chandani and
R.B. Datar for the Respondents.
F.S. Nariman, Parveen Kumar Jain, Kapil
Sibbal and Anil Kumar Sharma for Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, 1. This appeal by special leave is directed against a judgment dated
March 5, 1980 of the Delhi High Court quashing the proceedings taken against
respondents Nos. 1 to S and arises in the following circumstances.
On March 25, 1974, one Shri M.M. Gupta, Food
Inspector, Municipal Corporation of Delhi visited premises No. 5171, Basant
Road, Delhi where Shri Madan Lal had kept for sale 'Morton Toffees'. The said
Inspector after purchasing the sample of the article sent it to the Public
Analyst who opined that the said sample did not conform to the standards
prescribed for toffees. The toffees were manufactured by M/s. Upper Ganges
Sugar Mills. Respondent No. 1 (Rain Kishan Rohtagi) was the Manager of the
company and Respondent Nos.
2 to 5 were the Directors of the Company,
including the company also.
A complaint was filed before the Metropolitan
Magistrate who summoned all the respondents for being tried for violating the
provisions of the Prevention of Food Adulteration Act (hereinafter referred to
as the 'Acts). The said complaint was filed by the Assistant Municipal
Prosecutor in the court of Metropolitan Magistrate, Delhi against the accused
for having committed offences under sections 7/16 of the Act.
The only point canvassed before us was that
on the allegations made in the complaint, a clear case was made out against all
the 887 respondents and the High Court ought not to have quashed the
proceedings on the ground that the complaint did not disclose any offence. Before
going through the relevant part of the complaint, it mag be necessary to say a
few words about the law on the subject.
After the coming into force of the Code of
Criminal Procedure, B 1973 (hereinafter referred to as the 'present Code'),
there was a serious divergence of judicial opinion on the question as to
whether where a power is exercised under section 397 of the present Code, the
High Court could exercise those very powers under section 482 of the present
Code. It is true that s. 397 (2) clearly bars the jurisdiction of the Court in
respect of interlocutory orders passed in appeal, enquiry or other proceedings.
The matter is, however, no longer res integra as the entire controversy has
been set at rest by a decision of this Court in Madhu Limaye v. State of
Maharashtra(1) where this Court pointed out that s. 482 of the present Code had
a different parameter and was a provision independent of s. 397(2). This Court
further held that while s. 397(2) applied to the exercise y of revisional
powers of the High Court, section 482 regulated the . inherent powers of the
court to pass orders necessary in order to prevent the abuse of the process of
the court. In this connection, Untwalia, J.
speaking for the Court observed as follows:-
"On a plain reading of section 482, however, it would follow that nothing
in the Code, which would include sub section (2) of section 397 also,
"shall be deemed to limit or affect the inherent powers of the High
Court". But, if we were to say that the said bar is not to operate in the
exercise of the inherent power at all, it will be setting at naught one of the
limitations imposed upon the exercise of the revisional powers .. But in case
the impugned order clearly brings about a situation which is an abuse of the
process of the court or for the purpose of securing the ends of justice
interference by the High Court is absolutely necessary, then nothing contained
in section 397(2) can limit or affect the exercise of the inherent power by the
High Court. But such cases would be few and far between. The High Court must
exercise the inherent power very sparingly." 888 It may be noticed that s.
482 of the present Code is the ad verbatim copy of s. 561A of the old Code.
This provision confers a separate and independent power on the High Court alone
to pass orders ex debito justitiae in cases where grave and substantial
injustice has been done or where the process of the Court has been seriously
abused. It is not merely a revisional power meant to be exercised against the
orders passed by subordinate courts. It was under this section that in the old
Code, the High Courts used to quash the proceedings or expunge uncalled for
remarks against witnesses or other persons or subordinate courts. Thus, the
scope, ambit and range of s. 561A (which is now s. 482) is quite different from
the powers conferred by the present Code under the provisions of s. 397. It may
be that in some cases there may be overlapping but such cases would be few and
far between. It is well settled that the inherent powers under s. 482 of the
present Code can be exercised only when no other remedy is available to the
litigant and not where a specific remedy is provided by the statute. Further,
the power being an extraordinary one, it has to be exercised sparingly. If these
considerations are kept in mind, there will be no inconsistency between
sections 482 and 397(2) of the present Code.
The limits of the power under s. 482 were
clearly defined by this Court in Raj Kapoor and Ors. v. State and Ors.(l) where
Krishna Iyer J. Observed as follows:- "Even so, a general principle
pervades this branch of law when a specific provision is made: easy resort to
inherent power is not right except under compelling circumstances. Not that
there is absence of jurisdiction but that inherent power should not invade
areas set apart for specific power under the same Code." Another important
consideration which is to be kept in mind is as to when the High Court acting
under the provisions of s. 482 should exercise the inherent power in so far as
quashing of criminal q proceedings are concerned.
This matter was gone into in greater detail
in Smt. Nagawwa v. Veeranna Shivalingappa Konjalji and Ors.(2) where the scope
of ss. 202 and 204 of the present Code was consider ed and while laying down
the guidelines and the grounds on which proceedings could be quashed this Court
observed as follows:
889 "Thus, it may be safely held that in
the following cases an order of the Magistrate issuing process against the
accused can be quashed or set aside:
(1) Where the allegations made in the
complaint or the statements of the witnesses recorded in support of the same
taken at their face value make out absolutely no case against the accused or
the complaint does not disclose the essential ingredients of an offence which
is alleged against the accused;
(2) Where the allegations made in the
complaint are patently absurd and inherently improbable so that no prudent
person can ever reach a conclusion that there is sufficient ground for
proceeding against the accused;
(3) Where the discretion exercised by the
Magistrate in issuing process is capricious and arbitrary having been based
either on no evidence or on materials which are wholly irrelevant or
inadmissible; and (4) Where the complaint suffers from fundamental legal
defects, such as, want of sanction, or absence of a complaint by legally
competent authority and the like.
The cases mentioned by us are purely
illustrative and provide sufficient guidelines to indicate contingencies where
the High Court can quash Proceedings." Same view was taken in a later
decision of this Court in Sharda Prasad Sinha v. State of Bihar(l) where
Bhagwati, J. speaking for the Court observed as follows:- "It is, now
settled law that where the allegations set out in the complaint or the
charge-sheet do not constitute any offence, it is competent to the High Court
exercising its inherent jurisdiction under section 482 of the Code of Criminal
Procedure to quash the order passed by the Magistrate taking cognizance of the
offence." 890 It is, therefore, manifestly clear that proceedings against
an accused in the initial stages can be quashed only if on the face of the
complaint or the papers accompanying the same, no offence is constituted. In
other words, the test is that taking the allegations and the complaint as they
are, without adding or subtracting anything, if no offence is made out then the
High Court will be justified in quashing the proceedings in exercise of its
powers under s. 482 of the present Code.
In the instant cases the argument of the
appellant before us is that taking the complaint as a whole, it cannot be said
that no offence is made out or that the facts mentioned in the complaint do not
constitute any offence against the respondents or some of them. On the other hand,
the counsel for the respondents submitted that even taking the allegations of
the complaint ex facie no case for trial has been made out at all.
Before going to the complaint, we might state
that it is common ground that the complaint clearly contains the allegations
regarding the visit of the Inspector to the shop of respondent No. 6 (Madan
Lal) and that the sample taken by him, which was sent to the Public Analyst,
was manufactured by Upper Ganges Sugar Mills, Daryagang, Delhi having its
registered office at Calcutta and that the Public Analyst found the samples to
be adulterated. There is no dispute regarding these facts. The only point on
which the contro- versy centres is as to whether or not on the allegations, the
Manager as also the other respondents I to 5 committed any offence. The main
clause of the complaint which is the subject matter of the dispute is clause
No. S which may be extracted thus:
"5. That the accused No. 3 is the
Manager, of accused No. 2 and accused No. 4 to 7 are the Directors of accused
No. 2 and as such they were incharge of and responsible for the conduct of
business of accused No.
2 at the time of a sampling." According
to this clause, accused No. 3 (Ram Kishan) who is respondent No. I in this
appeal and accused Nos. 4-7 who are respondent Nos. 2 to 4, were the Directors
of the company, respondent No. 5. So far as the Manager, respondent No. 1, is
concerned it was not and could not be reasonably argued that no case is made
out against him because from the very nature of his 891 duties, it is manifest
that he must be in the knowledge about the affairs of the sale and manufacture
of the disputed sample. It was, however, contended that there is no allegation
whatsoever against the Directors, respondent Nos. 2 to 4.
Reliance has been placed on the words 'as
such' in order to argue that because the complaint does not attribute any
criminal responsibility to accused Nos. 4 to 7 except that they were incharge
of and responsible for the conduct of the business of the company. It is true
that there is no clear-averment of the fact that the Directors were really
incharge of the manufacture and responsible for the conduct of business but the
words 'as such' indicate that the complainant has merely presumed that the
Directors of the company must be guilty because they are holding a particular
office. This argument found favour with the High Court which quashed the
proceedings against the Directors as also against the Manager, respondent No.
1.
So far as the Manager is concerned, we are
satisfied that from the very nature of his duties it can be safely inferred
that he would undoubtedly be vicariously liable for the offence; vicarious
liability being an incident of an offence under the Act. So far as the
Directors are concerned, there is not even a whisper nor a shred of evidence
nor anything to show, apart from the presumption drawn by the complainant, that
there is any act committed by the Directors from which a reasonable inference
can be drawn that they could also be vicariously liable. In these
circumstances, therefore, we find ourselves in complete agreement with the
argument of the High Court that no case against the Directors (accused Nos 4 to
7) has been made out ex facie on the allegations made in the complaint and the
proceedings against them were rightly quashed.
We, however, do not agree that even accused
No. 3, respondent No. 1, who is Manager of the Company and therefore directly
incharge of its affairs, could fall in the same category as the Directors.
Hence, we would set aside that part of the judgment of the High Court which
quashes the proceedings against the Manager, respondent No. I (Ram Kishan
Rohtagi).
Although we uphold the order of the High
Court we would like to state that there are ample provisions in the Code of
Criminal 892 Procedure, 1973 in which the Court can take cognizance against
persons who have not been made accused and try them in the same manner along
with the other accused. In the old Code, s. 351 contained a lacuna in the mode
of taking cognizance if a new person was to be added as an accused. 1 he Law
Commission in its 41st Report (para 24.81) adverted to this aspect of the law
and s. 319 of the present Code gave full effect to the recommendation of the
Law Commission by removing the lacuna which was found to exist in s. 351 of the
old Code. Section 319 as incorporated in the present Code may be extracted
thus:- "319. Power to proceed against other persons appearing to be guilty
of offence.
(1) Where, in the course of any inquiry into,
or trial of, an offence, it appears from the evidence that any person not being
the accused has committed any offence for which such person could be tried
together with the accused, the Court may proceed against such person for the
offence which he appears to have committed.
(2) Where such person is not attending the
Court, he may be arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court, although
not under arrest or upon a summons, may be detained by such Court for the
purpose of the enquiry into, or trial of, the offence which he appears to have
committed.
(4) Where the Court proceeds against any
person under sub-section (1) then- (a) the proceedings in respect of such
person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a),
the case may proceed as if such person had been an accused person when the
Court took cognizance 893 of the offence upon which the inquiry or trial was
commenced." This provision gives ample powers to any court to take
cognizance and add any person not being an accused before it and try him
alongwith the other accused. This provision was also the subject matter of a
decision by this Court in Joginder Singh and Anr. v. State of Punjab and
Anr.(1) where Tulzapurkar, J., speaking for the Court observed thus:- "A
plain reading of section 319 (1), which occurs in chapter XXIV dealing with
general provisions as to inquiries and trials, clearly shows that it applies to
all the Courts including a Sessions Court and as such a Sessions Court will
have the power to add any person, not being the accused before it, but against
whom there appears during trial sufficient evidence indicating his involvement
in the offence, as an accused and direct him to be tried along with the other
accused." In these circumstances, therefore, if the prosecution can at any
stage produce evidence which satisfies the court that the other accused or
those who have not been arrayed as accused against whom proceedings have been
quashed have also committed the offence the Court can take cognizance against
them and try them along with the other accused. But, we would hasten to add
that this is really an extraordinary power which is conferred on the Court and
should be used very sparingly and only if compelling reasons exist for taking
cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage. We
leave the entire matter to the discretion of the court concerned so that it may
act according to law. We would, however, make it plain that the mere fact that
the proceedings have been quashed against respondent Nos. 2 to S will not
prevent the court from exercising its discretion if it is fully satisfied that
a case for taking cognizance against them has been made out on the additional
evidence led before it.
894 For these reasons, therefore, we allow
this appeal only to the extent that the order of the High Court quashing the
proceedings against the Manager (Rohtagi), respondent No. 1, is hereby set
aside and that of the Metropolitan Magistrate is restored. As regards the other
respondents (Directors) the order of the High Court stands and the appeal in
respect of these respondents only will stand dismissed. An attested copy of
this judgment be placed on the file of criminal appeal No. 749 of 1980.
H.L.C. Appeal partly allowed.
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