Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION OF DELHI
Vs.
RESPONDENT:
RAM KISHAN ROHTAGI AND OTHERS
DATE OF JUDGMENT01/12/1982
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
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
tho 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 tho 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 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 incharge 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
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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]
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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.
886
JUDGMENT:
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
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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
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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 any thing, 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,
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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
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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."
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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.
895