INDUS TOWER LTD & ANR vs STATE OF WEST BENGAL AND ANR
- Court
- Calcutta High Court
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Ananya Bandyopadhyay
C.R.R. 3180 of 2014
Indus Tower Ltd. & Anr.
-Vs-
The State of West Bengal and Anr.
For the Petitioners : Mr. Sabyasachi Banerjee
Mr. Ayan Bhattacharjee
Mr. Anand Keshri
Mr. Atish Ghosh
Mr. Arindam Chandra
For the Opposite Party : Mr. Kusal Kumar Mukherjee
No.2/KMC
For the State : Mr. Debasish Ray, Ld. P.P.
Mr. Imran Ali
Ms. Debjani Sahu
Judgment on : 22.05.2026
Ananya Bandyopadhyay, J.:-
1. The revisional application has been presented before this Court seeking
exercise of its inherent and supervisory jurisdiction for setting at naught the
criminal proceeding being Case No.181 of 2014 pending before the Learned
First Municipal Magistrate at Calcutta under Section 401A of the Kolkata
st
Municipal Corporation Act, 1980, arising out of F.I.R. No.24 dated 31
th
March, 2014 and the charge-sheet no.69 dated 26 July, 2014 submitted in
consequence thereof.
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2. The pleadings reveal that the petitioner no.1 is a company incorporated
under the Companies Act, 1956, maintaining its registered office at Bharti
Crescent, 1, Nelson Mandela Marg, Vasant Kunj, Phase-II, New Delhi–
110070, while conducting its operations within the State of West Bengal
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through its circle office situated at Unit No.801, 8 Floor, Godrej Waterside,
Sector-V, Electronic Complex, Salt Lake, Kolkata–700091.
3. The petitioner company asserts that it possesses registration granted by the
Department of Telecommunications, Ministry of Communications and
Information Technology, Government of India, as a Category-I Infrastructure
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Provider (IP-I) under Registration No.177/2008 dated 10 January, 2008. By
virtue of such registration, the company claims authority to carry on the
business of providing telecommunication infrastructure and allied assets,
including mobile towers, for telecom operators holding licences under
Section 4 of the Indian Telegraph Act, 1885.
4. The narrative advanced in the revisional application depicts the petitioner
company as an enterprise engaged in the establishment, operation,
maintenance and provisioning of telecommunication infrastructure forming
part of the larger national communications architecture. According to the
petitioners, the services rendered by telecom operators through such
infrastructural facilities constitute essential public utility services intended
for the benefit of the community at large. Reference has accordingly been
made to the National Telecom Policies introduced by the Union of India in
the years 1994 and 1999 and subsequently revised and republished in 2012.
The petitioners contend that the activities undertaken by the company stand
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nurtured within the policy framework evolved by the Union Government for
expansion of telecommunications coverage and enhancement of
communication facilities throughout the country.
5. It has further been stated that the petitioner no.1 carries on the business of
providing shared telecom infrastructure services to licensed telecom
operators and, for advancement of such commercial and infrastructural
activities, installs both rooftop towers and ground-based towers in different
locations.
6. The petitioner no.2 has been described as a citizen of India presently serving
as the Chief Operating Officer of the West Bengal Circle of the petitioner no.1
company. The pleadings attribute to him the position of principal officer
responsible for supervising and conducting the activities of the petitioner
company within the territorial limits of the State of West Bengal.
7. The origin of the criminal prosecution has been traced to a complaint lodged
on or about 28th March, 2014 before the Officer-in-Charge of Metiabruz
Police Station alleging illegal and unauthorised erection of a mobile tower at
premises no. Q-374/A, Panchanantala Lane (Mudiali Road), Kolkata–
700024, situated within Ward No.136 under Borough XV of the Kolkata
Municipal Corporation. The complaint referred to a detailed enquiry report
submitted before the Executive Engineer (Civil), Building Department,
Kolkata Municipal Corporation, Borough XV, concerning erection of a mobile
tower upon the roof of a three-storeyed building owned by one Rajaram
Neogy.
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8. The complainant alleged that the petitioner company had undertaken
construction and erection of the mobile tower at the aforesaid premises
without obtaining municipal sanction and in transgression of the provisions
of the Kolkata Municipal Corporation Act and the Rules framed thereunder.
Apprehension was also expressed that continuance of the structure might
expose human life and civic amenities, including water supply, drainage and
sewerage systems, to serious peril and might further create conditions
conducive to fire hazards.
9. The complaint requested the Officer-in-Charge of Metiabruz Police Station to
treat the same as a First Information Report under Section 401A of the
Kolkata Municipal Corporation Act, 1980. Pursuant thereto, an F.I.R. came
to be recorded by Nirmal Kumar Ghosh, Inspector of Kolkata Police, and
Rajarshi Dey, Sub-Inspector attached to Metiabruz Police Station.
10. The petitioners have further stated that upon culmination of investigation, a
charge-sheet dated 26th July, 2014 came to be submitted before the Learned
Metropolitan Magistrate, Kolkata under Section 401A of the Kolkata
Municipal Corporation Act, thereby initiating the criminal proceeding which
forms the subject matter of challenge in the present revisional application.
11. Learned Advocate appearing on behalf of the petitioners assailed the very
foundation of the criminal proceeding by contending that the allegations
embodied in the complaint and the First Information Report, even if accepted
in their entirety, fail to attract the ingredients of Section 401A of the Kolkata
Municipal Corporation Act, 1980. According to the petitioners, the statutory
provision is directed against construction of a new building or addition of
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floors raised in breach of the municipal enactment and the Rules framed
thereunder, whereas the accusation in the present case merely relates to
installation of a mobile tower upon the roof of an existing structure. It was
submitted that neither the complaint nor the First Information Report
contains any allegation concerning erection of a new building or addition of
any floor by the petitioner company and, therefore, invocation of Section
401A of the Act stands wholly misplaced.
12. The petitioners further contended that a mobile tower cannot, either in its
ordinary connotation or within the statutory framework of the Kolkata
Municipal Corporation Act, be equated with a “building”. Drawing attention
to Section 2(5) of the Act, learned counsel submitted that the definition of
“building” contemplates a structure enclosing or intended to enclose land,
signs or outdoor display structures. A mobile tower, according to the
petitioners, possesses none of those attributes and remains merely a metallic
installation incapable of being treated as a building within the legislative
meaning of the expression.
13. Elaborating such submission, learned counsel argued that the petitioner
company merely transports component parts of a mobile tower and
assembles the same at a designated site. Such activity, according to the
petitioners, constitutes installation simpliciter and does not partake the
character of construction or erection of a building. It was urged that the
distinction between “installation of a tower” and “construction of a building”
has substantial legal significance and the prosecution has attempted to
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obliterate that distinction by mechanically bringing the case within the fold
of Section 401A of the Act.
14. The petitioners also placed reliance upon the official materials available on
the website of the Kolkata Municipal Corporation, particularly the “Schedule
of Fees and Charges for Installation of Tower/Antenna/Pole for the year
2012–13”. Learned counsel submitted that the said Schedule itself
contemplated regularisation of installation of tower, antenna or pole upon
payment of prescribed charges and specifically stipulated a regularisation fee
of Rs.3,00,000/- in cases where there was installation without sanction.
Referring to such municipal prescription, it was argued that the Corporation
itself treated the matter as one capable of administrative regularisation upon
payment of fees and not as conduct inviting criminal prosecution under
Section 401A of the Act.
15. Proceeding further, learned counsel for the petitioners submitted Section
401A became operative only where the construction in question endangered,
or was likely to endanger, human life, municipal property, water supply,
drainage, sewerage systems or road traffic, or gave rise to fire hazards. The
complaint in the present case, according to the petitioners, merely
reproduces the language of the statute and records a speculative
apprehension without any factual foundation, technical assessment or
supporting material demonstrating how the alleged installation posed any
genuine peril to public safety or civic infrastructure.
16. It was emphatically argued that the allegations contained in the complaint
are bereft of factual particulars and do not disclose commission of any
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cognizable offence either by the petitioner company or by its officers. Learned
counsel submitted that installation of a telecom tower upon the roof of an
existing building cannot, by any permissible interpretative process, be
transformed into construction of a building within the meaning of Section
401A of the Kolkata Municipal Corporation Act. The prosecution, according
to the petitioners, rests upon a legally fragile premise and continuation of
the criminal proceeding would amount to misuse of the judicial process.
17. The petitioners accordingly contended that the criminal case has been
initiated beyond the permissible statutory sphere, without jurisdictional
foundation and upon allegations that fail to satisfy the essential ingredients
of the penal provision invoked. It was, therefore, urged that the proceeding
pending before the Learned Municipal Magistrate deserves to be quashed in
exercise of the revisional and inherent powers of this Court.
18. Learned Advocate representing the opposite party/respondent no.2 resisted
the revisional application by contending that the materials collected during
investigation disclose a prima facie case under Section 401A of the Kolkata
Municipal Corporation Act, 1980 and that the petitioners, particularly
petitioner no.2, cannot evade criminal accountability by invoking technical
interpretations of statutory terminology.
19. It was submitted that petitioner no.2 functioned as the Chief Operating
Officer of the West Bengal Circle of M/s. Indus Tower and remained directly
responsible for installation and management of telecommunication
infrastructure for cellular operators within the State. According to the
respondent, the petitioner company had obtained permission to establish
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ground-based as well as rooftop towers; nevertheless, in the present
instance, the tower at the concerned premises had been erected without
obtaining the requisite sanction from the competent municipal authority.
20. Learned counsel drew attention to the written complaint and the inspection
conducted by the complainant authority at premises no. Q-3742/A,
Panchanantala Lane, Mudiali Road, Kolkata–700024 within Ward No.136
under Borough XV. During such inspection, the complainant allegedly
detected erection of a mobile tower upon the roof of the premises without
municipal approval. It was further submitted that a detailed enquiry report
concerning such erection had thereafter been forwarded to the Executive
Engineer (Civil), Building Department, Kolkata Municipal Corporation,
Borough XV on 28th March, 2014, relating to installation of the mobile tower
atop a three-storeyed building belonging to Rajaram Neogy, arrayed as
another accused in the proceeding.
21. The respondent further submitted that notices under Section 401 of the
Kolkata Municipal Corporation Act had been issued to Shri Rajaram Neogy
as well as to the Director of M/s. Indus Tower Ltd. requiring response from
the concerned parties. According to learned counsel, neither the company
nor petitioner no.2 furnished any reply to such notice. Consequent thereto, a
written complaint was lodged before the Officer-in-Charge of Metiabruz
Police Station, culminating in registration of Metiabruz Police Station Case
No.24 dated 31st March, 2014 under Section 401A of the Kolkata Municipal
Corporation Act.
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22. Emphasis was laid upon the circumstance that petitioner no.2 admittedly
proceeded with installation of the tower despite absence of a “No Objection
Certificate” from the municipal authority. Learned counsel submitted that
the pleadings of the petitioners themselves disclose deposit of charges
relating to installation of tower, antenna and pole, yet no formal prayer for
grant of “NOC” had ever been made before the competent authority. Such
omission, according to the respondent, furnished substantial material
demonstrating conscious departure from the statutory procedure governing
erection of telecom infrastructure within municipal limits.
23. The respondent further contended that the challenge launched by the
petitioners proceeded upon a misconceived invocation of the doctrine of
vicarious liability. Learned counsel argued that petitioner no.1, being a
juristic entity, acted through its officers and managerial representatives, and
petitioner no.2 functioned as the sole operational authority supervising day-
to-day affairs of the company within the State of West Bengal. In matters
relating to installation of telecom towers, the responsibility, according to the
respondent, principally rests upon the officer exercising operational control
over such activities. The investigation, it was submitted, revealed that
petitioner no.2 acted beyond the permissible regulatory framework and
thereby exposed himself to criminal prosecution in his personal capacity.
24. Fortifying the submission further, learned counsel argued that the present
case does not involve classical vicarious liability arising out of a master-
servant or employer-employee relationship. The principle that criminal
liability based upon vicarious responsibility could arise only where the
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statute expressly contemplated such consequence was emphasized. Since
the Kolkata Municipal Corporation Act, 1980 contains no specific provision
embodying vicarious criminal liability, petitioner no.2 cannot claim
exoneration merely because petitioner no.1 company has not been arraigned
as an accused in the charge-sheet.
25. It was also submitted that the charge-sheet reflected petitioner no.2 operated
beyond the supervisory restraint of petitioner no.1 and that the prosecution
against him rest upon his own acts and omissions rather than upon any
derivative liability. Learned counsel maintained that the materials collected
during investigation revealed deliberate departure from municipal
requirements governing erection of towers and that the proceeding had
progressed beyond the preliminary stage, investigation having already
culminated in submission of charge-sheet.
26. The Learned Advocate for the respondent accordingly urged that the
revisional application lacked legal merit and that no persuasive ground had
been demonstrated warranting quashing of the criminal proceeding at its
present stage.
27. The controversy brought before this Court traverses a narrow yet
jurisprudentially significant question touching the amplitude of Section
401A of the Kolkata Municipal Corporation Act, 1980 and the extent to
which the penal provision may be invoked in relation to installation of a
mobile telecommunication tower upon the roof of an existing structure.
28. The prosecution has its genesis in a complaint lodged before Metiabruz
Police Station alleging erection of a mobile tower at premises no. Q-374/A,
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Panchanantala Lane (Mudiali Road), Kolkata–700024 within Ward No.136
under Borough XV of the Kolkata Municipal Corporation. The gravamen of
the accusation rests upon the assertion that the petitioner company erected
such tower without obtaining sanction from the municipal authorities and
thereby attracted the penal consequences contemplated under Section 401A
of the Kolkata Municipal Corporation Act, 1980.
29. The petitioners, on the other hand, contend that the statutory provision
invoked in the present prosecution bears no application to the factual
canvas disclosed in the complaint, the First Information Report or the
charge-sheet. According to the petitioners, installation of a telecom tower
upon the roof of an existing building neither constitutes construction of a
building nor addition of floors within the legislative contemplation of Section
401A of the Act.
30. The central issue, therefore, is not merely factual. The matter calls for a
careful ascertainment of the statutory architecture of Section 401A and the
legislative intention embedded therein.
31. Section 401A of the Kolkata Municipal Corporation Act was incorporated to
address situations where erection or construction carried on in breach of
municipal sanction assumes a dimension hazardous to civic order, public
safety, drainage systems, sewerage, water supply, road traffic or allied
municipal infrastructure. The provision is couched in penal language and
therefore invites strict construction. Criminal liability cannot be permitted to
travel beyond the precise statutory boundaries carved out by the legislature.
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32. The complaint forming the substratum of the prosecution repeatedly
employs the expression “erection of mobile tower at the roof of the building”.
Significantly, nowhere in the complaint, the First Information Report or the
chargesheet is there any allegation regarding construction of a fresh
building, vertical extension by addition of floors, structural expansion of the
existing premises or conversion of the building into a form alien to the
sanctioned plan.
33. The prosecution narrative itself, therefore, proceeds upon the premise that
what was installed was a telecommunication tower over an already existing
rooftop.
34. This distinction acquires decisive legal significance.
35. The expression “building” as defined under Section 2(5) of the Kolkata
Municipal Corporation Act contemplates a structure enclosing or intended to
enclose land and includes signs and outdoor display structures. A mobile
telecom tower, by its very character and engineering composition, does not
answer such description. It remains a metallic infrastructural installation
erected for transmission and reception of telecommunication signals.
Equating such installation with construction of a building would amount to
judicial enlargement of a penal statute, a course impermissible in criminal
jurisprudence.
36. The materials placed before this Court further revealed that the Kolkata
Municipal Corporation itself maintained a separate regulatory mechanism
governing installation of tower/antenna/pole and prescribed a “Schedule of
Fees and Charges for Installation of Tower/Antenna/Pole for the year 2012–
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13”. The said Schedule specifically contemplated regularisation fees in
respect of installations without sanction. Such administrative framework
demonstrated that the Corporation itself treated installation of telecom
towers as a distinct municipal subject requiring regulatory compliance and
payment of charges rather than as construction of a new building attracting
automatic penal prosecution under Section 401A of the Act.
37. The existence of a regulatory and regularisation mechanism possesses
substantial interpretative value. Where the statutory authority itself creates
a separate administrative channel for regularisation of installation of towers
and antennas, invocation of the penal provision relating to construction of
buildings must rest upon demonstrable allegations satisfying the exact
statutory ingredients. Mere absence of sanction, divorced from the structural
ingredients contemplated under Section 401A, cannot mechanically
transform a regulatory lapse into a criminal offence.
38. Equally significant is the nature of the allegations relating to public danger.
The complaint merely records an apprehension that the tower “might
collapse”, “might endanger human life” or “might create fire hazard”. Such
recitals remain entirely bereft of technical material, engineering assessment,
structural report or scientific evaluation. No material has been placed
demonstrating compromise of drainage systems, sewerage, municipal
property, water supply, road traffic or structural stability of the building.
39. The complaint substantially reproduces the phraseology of the statute
without furnishing factual particulars capable of constituting the offence
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alleged. Criminal prosecution cannot rest upon conjectural apprehension
clothed in statutory language.
40. The submissions advanced on behalf of the respondent concerning absence
of NOC and non-reply to notices issued under Section 401 of the Act also fail
to advance the prosecution case beyond the realm of regulatory deviation.
Even assuming the allegations to be factually accurate, such circumstances
may expose the petitioners to municipal consequences contemplated under
the regulatory framework governing telecom installations; nevertheless,
those allegations do not satisfy the ingredients of Section 401A unless the
primary requirement of construction contemplated under the provision is
first established.
41. The argument relating to vicarious liability likewise fails to rescue the
prosecution from its inherent legal fragility. Criminal liability in municipal
penal statutes must arise from explicit statutory prescription. The
prosecution cannot derive sustenance merely from the official position held
by petitioner no.2 within the company when the foundational offence itself
remains absent.
42. This Court is not oblivious to the importance of municipal regulation in
matters concerning civic safety and urban planning. Metropolitan
governance demands scrupulous adherence to statutory procedure. Yet,
fidelity to statutory discipline applies equally to prosecuting agencies. Penal
jurisdiction cannot be expanded through interpretative elasticity merely
because a municipal deviation is alleged.
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43. The revisional jurisdiction of this Court exists precisely to prevent
continuation of criminal proceedings where the allegations, accepted at their
highest, fail to disclose commission of the offence alleged. Permitting such
prosecution to continue despite patent absence of statutory ingredients
would reduce criminal process into an instrument of coercive pressure
rather than adjudicatory discipline.
44. The complaint, the First Information Report and the charge-sheet, read in
their entirety, disclose installation of a mobile tower upon the roof of an
existing building without municipal sanction. They do not disclose
construction of a building within the meaning of Section 401A of the Kolkata
Municipal Corporation Act. A further aspect of considerable significance
emerges from the materials placed before this Court, namely, the identity of
the person upon whom the primary statutory obligation rested in relation to
the premises in question and the extent to which criminal liability could at
all be attributed to the present petitioners.
45. The prosecution case itself records that the mobile tower had been installed
upon the roof of a three-storeyed building belonging to one Rajaram Neogy.
The building owner, therefore, remained the person having dominion over
the premises, control over structural access and authority concerning
utilisation of the rooftop area upon which the installation was undertaken.
In matters concerning municipal sanction relating to structural use of
premises, rooftop utilisation and compliance with building regulations, the
owner or person in control of the immovable property occupies a position of
central statutory responsibility.
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46. The complaint itself acknowledges that notices under Section 401 of the
Kolkata Municipal Corporation Act had been served upon Shri Rajaram
Neogy as owner of the premises. Such circumstance assumes considerable
importance because it demonstrates that the municipal authorities
themselves recognised the building owner as the principal person
answerable in relation to the alleged deviation concerning the structure.
47. The materials on record do not disclose that the petitioners held ownership
rights over the premises, possessed authority to alter the sanctioned
character of the building or exercised municipal control over the structural
composition of the property. The petitioner company functioned merely as a
telecom infrastructure provider engaged in installation of telecommunication
equipment pursuant to commercial arrangements entered into with property
owners and telecom operators. The prosecution has failed to demonstrate
that the petitioners assumed the legal character of builders, developers or
persons raising construction within the meaning of Section 401A of the Act.
48. Equally notable is the absence of any allegation that the petitioners carried
out addition of floors, extension of the building structure or alteration of the
sanctioned building plan. The accusation remains confined to installation of
a telecom tower upon an already existing rooftop belonging to a third-party
owner. In such factual setting, fastening criminal liability upon the
petitioners under a penal provision directed against construction of
buildings would amount to displacement of the statutory focus from the
owner and person in control of the premises to an infrastructure service
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provider whose role remained technologically operational rather than
structurally proprietary.
49. The individual roles attributed to the petitioners also deserve careful
scrutiny.
50. The Learned Advocate representing the petitioners relied on the decisions
enumerated as follows:-
i. The Hon’ble Supreme Court in the case of M.D M/S CASTROL INDIA
1
LIMITED VS STATE OF KARNATAKA , has held the following:-
“ 6 . Section 74 of the Standards of Weights and Measures Act, 1976
which is in the following terms engrafts the principle of vicarious
liability for offences committed by a Company.
“74. Offences by companies and power of court to publish
name, place of business, etc. of companies convicted - (1) If an
offence under this Act is committed by a company, every person
who, at the time the offence was committed was in charge of, and
was responsible to the company for the conduct of the business of
the company as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this sub-section shall
render any such person liable to punishment if he proves that the
offence was committed without his knowledge or that he had
exercised all due diligence to prevent the commission of such
offence.”
7 . In the present complaint petition, there is no averment or
statement whatsoever that the appellant as the Managing Director of
the Company was responsible or incharge of the conduct of the
business of the Company in respect of which the offence in question
has been alleged to have been committed. Neither there is any
averment to the effect that the appellant is otherwise connected or
responsible for commission of any of the acts on the basis of which
the offence(s) is alleged to have been committed.
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(2018) 17 SUPREME COURT CASES 275
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8 . It will not be necessary to burden this order by a detailed
reference to numerous pronouncements of this Court interpreting
similar provisions of other statutes holding that a clear and
categorical statement to the above effect is required to be made in
the complaint petition to proceed against an officer of the Company
so as to determine his vicarious liability for the offence committed by
the company. In the present case the Company is not even arrayed
as an accused.
ii. The Hon’ble Supreme Court in the case of STATE OF HARYANA
2
VS BRIJ LAL MITTAL & ORS . , has held the following:
“8 . “… It is thus seen that the vicarious liability of a person for being
prosecuted for an offence committed under the Act by a company
arises if at the material time he was in-charge of and was also
responsible to the company for the conduct of its business. Simply
because a person is a director of the company it does not necessarily
mean that he fulfills both the above requirements so as to make him
liable. Conversely, without being a director a person can be in-
charge of and responsible to the company for the conduct of its
business. From the complaint in question we, however, find that
except a baid statement that the respondents were directors of the
manufacturers, there is no other allegation to indicate, even prima
facie, that they were in-charge of the company and also responsible
to the company for the conduct of its business.”
9 . In Delhi Municipality vs. Ram Kishan [(1983) 1 S.C.C.1] while
dealing with the applicability of Section 17(1) of the Prevention of the
Food Adulteration Act, 1954, which is in parimateria with Section
34(1) of the Act, on similar facts, this Court observed as under:
(15) "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, Various
liability being and incident of an offence under the Act. So far as the
Directors are concerned, there is not even a whisper not 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
2
(1998) 5 SUPREME COURT CASES 343
19
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."
iii. The Hon’ble Kerala High Court in the case of GOVIND M.S AND
OTHERS VS THE STATE OF KERALA REPRESENTED BY THE
3
SECRETARY , has held the following:-
“ 11 . Even if it is accepted that the petitioners were directors of the
first accused company at the relevant time, vicarious liability cannot
be attributed upon them for the offences under the Indian Penal
Code allegedly committed by the first accused company.
…
13 . In MaksudSaiyed v. State of Gujarat: (2008) 5 SCC 668, the
Supreme Court has held as follows:
"Vicarious liability of the Managing Director and Director would arise
provided any provision exists in that behalf in the statute. Statutes
indisputably must contain provision fixing such vicarious liabilities.
Even for the said purpose, it is obligatory on the part of the
complainant to make requisite allegations which would attract the
provisions constituting vicarious liability".
14. In S.K.Alagh v. State of U.P : AIR 2008 SC 1731, the Apex Court
has held as follows:
"As, admittedly, drafts were drawn in the name of the company,
even if appellant was its Managing Director, he cannot be said to
have committed an offence under Section 406 of the Indian Penal
Code. If and when a statute contemplates creation of such a legal
fiction, it provides specifically therefor. In absence of any provision
laid down under the statute, a Director of a company or an employee
cannot be held to be vicariously liable for any offence committed by
the company itself. ..... Whereas a person in charge of the affairs of
the company and in control thereof has been made vicariously liable
for the offence committed by the company along with the company
but even in a case falling under Section 406 of the Indian Penal
Code vicarious liability has been held to be not extendable to the
Directors or officers of the company".
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2019 SCC OnLine Ker 5292
20
15. In KekiHormusjiGharda v. MehervanRustomIrani : AIR 2009 SC
2594, it has been held as follows:
"Indian Penal Code, save and except some matters does not
contemplate any vicarious liability on the part a person. Commission
of an offence by raising a legal fiction or by creating a vicarious
liability in terms of the provisions of a statute must be expressly
stated. The Managing Director or the Directors of the Company, thus,
cannot be said to have committed an offence only because they are
holders of offices".
16. In Sunil Bharti Mittal v. Central Bureau of Investigation : AIR
2015 SC 923, the Supreme Court has held as follows:
"No doubt, a corporate entity is an artificial person which acts
through its officers, directors, managing director, chairman etc. If
such a company commits an offence involving mens rea, it would
normally be the intent and action of that individual who would act
on behalf of the company. It would be more so, when the criminal
act is that of conspiracy. However, at the same time, it is the
cardinal principle of criminal jurisprudence that there is no vicarious
liability unless the Statute specifically provides so. Thus, an
individual who has perpetrated the commission of an offence on
behalf of a company can be made accused, along with the company,
if there is sufficient evidence of his active role coupled with criminal
intent. Second situation in which he can be implicated is in those
cases where the statutory regime itself attracts the doctrine of
vicarious liability, by specifically incorporating such a provision.
When the company is the offender, vicarious liability of the Directors
cannot be imputed automatically, in the absence of any statutory
provision to this effect".
17 . In Shiv Kumar Jatia vs State: AIR 2019 SC 4463, the Supreme
Court has reieterated the principle as follows:
"An individual either as a Director or a Managing Director or
Chairman of the company can be made an accused, along with the
company, only if there is sufficient material to prove his active role
coupled with the criminal intent. Further the criminal intent alleged
must have direct nexus with the accused".
18 . The principles on the point can be summarised as follows:
Indian Penal Code does not contain any provision for attributing
vicarious liability upon the directors of a company, when the offence
is committed by the company. In the absence of any provision laid
down under the statute, a director of a company or an employee
cannot be held to be vicariously liable for an offence committed by
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the company itself. Vicarious liability of the director of a company
would arise provided there is specific provision in the statute.
Statute must contain provision fixing such vicarious liability. Even
then, it is obligatory on the part of the complainant to make requisite
allegations which would attract the provisions constituting vicarious
liability upon the directors of a company. When the company is the
offender, vicarious liability of the directors cannot be imputed
automatically, in the absence of any statutory provision to that
effect. Otherwise, there has to be a specific act attributed to the
director or any other person allegedly in control and management of
the company, to the effect that such a person was responsible for
the acts committed by or on behalf of the company. There is no
vicarious liability in criminal law unless the statute takes that also
within its fold. A director of a company can be made an accused,
along with the company, only if there is sufficient material to prove
his active role coupled with the criminal intent.”
51. Petitioner no.1 is a corporate entity functioning as a registered Infrastructure
Provider (IP-I) under the Department of Telecommunications, Government of
India, engaged in the business of establishing and maintaining telecom
infrastructure across various locations for licensed telecom operators. The
company itself neither owned the premises in question nor stood accused of
raising any new building or structural expansion upon the property.
52. Petitioner no.2 has been arrayed in the proceeding solely because he
functioned as the Chief Operating Officer of the West Bengal Circle of the
petitioner company. The prosecution materials, however, remain
conspicuously silent regarding any overt act personally attributable to him
demonstrating that he directed construction of a building, sanctioned
alteration of the premises or consciously engaged in any activity attracting
the ingredients of Section 401A of the Act. Mere designation in a managerial
capacity cannot substitute the statutory ingredients of criminal liability.
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53. The respondent sought to contend that petitioner no.2, being the operational
head of the company within the State, bore responsibility for the installation.
Yet, even if such assertion is accepted in its broadest amplitude, the same
does not resolve the fundamental legal deficiency underlying the prosecution.
Operational supervision over installation of telecom equipment cannot
metamorphose into criminal culpability under a statutory provision dealing
with construction of buildings unless the foundational ingredients of the
offence are first established.
54. The prosecution also attempted to rely upon the doctrine of vicarious
liability. Such argument, however, encounters a formidable legal barrier.
Criminal liability founded upon vicarious responsibility cannot arise in
absence of express statutory incorporation. Section 401A of the Kolkata
Municipal Corporation Act contains no legislative mandate creating
derivative criminal responsibility upon corporate officers merely by virtue of
their designation. In absence of such statutory prescription, criminal
culpability must rest upon direct and specific acts constituting the offence
alleged.
55. The charge-sheet placed before this Court likewise does not disclose any
material demonstrating active participation of petitioner no.2 in raising
construction of a building or causing structural alteration of the premises.
The materials merely indicate installation of telecom infrastructure at the
site. Such allegations may invite municipal regulatory action; nevertheless,
they fall far short of constituting the penal offence invoked in the
prosecution.
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56. Thus, viewed from every juridical angle, the prosecution appears to have
proceeded by conflating the role of the building owner with that of the
telecom infrastructure provider and by attributing criminal liability to
corporate functionaries without establishing the statutory ingredients
necessary for invocation of Section 401A of the Kolkata Municipal
Corporation Act, 1980. Corporation Act, 1980. The prosecution therefore
suffers from a foundational legal infirmity striking at the very root of
jurisdiction and to allow the criminal proceeding to continue will result in
the abuse of process of law.
57. Accordingly, the revisional application succeeds.
58. The proceeding being Case No.181 of 2014 pending before the Learned First
Municipal Magistrate at Calcutta arising out of Metiabruz Police Station Case
st
No.24 dated 31 March, 2014 under Section 401A of the Kolkata Municipal
th
Corporation Act, 1980 together with the charge-sheet no.69 dated 26 July,
2014 and all consequential proceedings arising therefrom stand quashed.
59. Interim orders, if any, stand dissolved.
60. In view of the above discussions, the instant criminal revisional application
being CRR 3180 of 2014 is allowed.
61. Accordingly, the instant criminal revisional application being CRR 3180 of
2014 stands disposed of along with connected application/s, if any.
62. There is no order as to costs.
63. Case Diary, if any, to be returned forthwith.
64. Let the copy of this judgment be sent to the learned trial court as well as the
police station concerned for necessary information and compliance.
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65. All parties shall act on the server copy of this judgment duly downloaded
from the official website of this court.
(Ananya Bandyopadhyay, J.)