Full Judgment Text
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PETITIONER:
T.J. STEPHEN & ORS.
Vs.
RESPONDENT:
PARLE BOTTLING CO.(P) LTD. & ORS.
DATE OF JUDGMENT22/03/1988
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
CITATION:
1988 AIR 994 1988 SCR (3) 296
1988 SCC Supl. 458 JT 1988 (1) 606
1988 SCALE (1)562
CITATOR INFO :
E 1992 SC1701 (38)
ACT:
lmports and Exports (Control) Act, 1947: Section 5-
Prosecution of Company and its Managing Director-Examination
of complainant, the Deputy Chief Controller of Imports and
Exports-Whether necessary-Whether complaint can be quashed
by referring to records of investigation.
Criminal Procedure Code, 1973: Section 200 Prosecution
of Company and its Managing Director under section 5 of the
Imports and Exports (Control) Act, 1947-Examination of
complainant-Whether necessary and relevant.
HEADNOTE:
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A complaint filed in the court of the Chief
Metropolitan Magistrate by the appellant, Chief Controller
of Imports and Exports, against respondents Nos. 1 and 2, a
private limited company and its Managing Director for the
alleged commission of an offence under s. 5 of the Imports
and Exports (Control) Act, 1947 was subsequently transferred
to another court and cognizance of the offence alleged was
taken without examining the appellant as proviso (a) of s.
200 of the Code of Criminal Procedure was applicable to this
complaint.
An application filed by the accused persons for recall
of summons and dismissal of complaint was dismissed by the
trial Magistrate. An appeal against the aforesaid order was
dismissed by the High Court. A special leave application
filed against the High Court’s order was dismissed by the
Supreme Court.
An application made at the trial stage for the
discharge of respondent No. 2, the Managing Director on the
plea that there was no allegation of any criminal misconduct
against him and the Company-respondent No. 1 was prepared to
admit its guilt and may be appropriately penalised, was
dismissed by the trial court.
On appeal, the High Court quashed the process issued
against respondent No. 2 on the ground that the order of
issuance of process
297
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was clearly as a result of non-application of mind by the
trial Judge because when the process was issued against the
petitioners, the Department and the State had merely filed a
complaint case along with list of witnesses and documents,
and none of the statements of witnesses or copies of
documents was produced before the trial Judge, and that
respondent No. 2 could not be prosecuted under s. 5 of the
Act, as the prosecution intended to charge him as principal
offender alongwith respondent No. 1 the Company and there
were no allegations in the complaint that respondent No. 2
either aided or abetted in the contravention of the licence
conditions by respondent No. 1 Company.
Allowing the Department’s appeal,
^
HELD: 1.1 The High Court had not cared to look into
procedural law applicable to the factual situation before
it. If a reference had been made to section 200, Proviso (a)
of Code of Criminal Procedure, the proceedings against
respondent No. 2 could not have been quashed. [299G-H]
1.2 Records of investigation are not evidence in the
instant case, and a complaint could not be quashed by
referring to the investigation records, particularly when
the petition of the complainant did allege facts which prima
facie show commission of an offence. [300B]
The High Court overlooked the fact that similar
objections raised earlier were rejected by the same High
Court, and this decision was upheld by the Supreme Court,
and drew a distinction between the two situations, by saying
that records of investigation were not available on the
earlier occasion. [300A-B]
1.3 The licensee was a company and a company by itself
could not act, and has to act through someone. Since there
was clear allegation that the Managing Director had
committed the offence, acting on behalf of the licensee,
there was no justification for quashing the proceedings
against respondent No. 2. [300C]
Order of the High Court is vacated. However, since the
offence was committed 20 years back, it would not be in the
interest of justice to allow a prosecution to start and the
trial to be proceeded with at this belated stage even though
respondent No. 2 has no equity in his favour and the delay
has been mostly on account of his mala fide move. Hence the
case against respondent No. 2 is directed to be closed
forthwith. [300E,G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
175 of 1988.
298
From the Judgment and order dated 10.2.86 in the High
Court of Bombay in Crl. Writ Petition No. 295 of 1986.
Kuldeep Singh, Solicitor General, Ms. A. Subhashini,
Mrs. Sushma Suri and B. Parthasarthy for the Appellants.
C.L. Sareen, O.K. Khuller, R.C. Kohli and Mrs. H. Wahi
for the Respondents.
The following order of the Court was delivered:
O R D E R
Special leave granted.
This appeal is by special leave. The appellant who is
Deputy Chief Controller of Imports and Exports filed a
complaint in the Court of Chief Metropolitan Magistrate,
Bombay alleging commission of offence under Section 5 of the
Imports and Exports (Control) Act, 1947 by the respondents 1
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and 2. The said case got transferred to the Court of the
Additional Chief Metropolitan Magistrate, 38th Court,
Ballard Estate, Bombay and was numbered as 82/S of 1983. The
respondent No. 1 is a private limited company with its
registered office at Bombay and the respondent No. 2 is its
Managing Director. To this complaint proviso (a) of Section
200 of the Code of Criminal Procedure was applicable.
Therefore, cognizance was taken of the offence alleged
without examining the appellant. On 17.1.1983, an
application was filed on behalf of the two accused persons
for recall of the summonses and dismissal of the complaint.
On 12th of May 1983, the learned Magistrate dismissed the
petition. The order of the learned magistrate was assailed
before the High Court and on 2.9.1983, the High Court
dismissed it. Then the matter was brought to this Court by
filing an application for special leave on 12.12.1983, this
Court dismissed the leave application. The case set down for
trial after charges were framed. An application was made to
the trial court at this stage to discharge the Managing
Director, Respondent No. 2 in exercise of inherent powers by
contending that the company was prepared to admit its guilt
and may be appropriately penalised and the Managing Director
against whom there was no allegation of any criminal conduct
should be discharged. The learned Magistrate by a reasoned
order dated 17th February, 1986, dismissed the application
and directed that the trial should proceed against both.
That order was assailed by the respondents before the Bombay
High Court by filing a criminal writ
299
petition. The High Court by its order dated 10th July, 1986,
which is impugned in this appeal, held:
"On perusal of the averments it is seen that at
the time the learned Trial Judge issued/processed
against the petitioners accused, the Department
and the State had merely filed a complaint case
along with list of witnesses and documents. None
of the statements of witnesses or copies of
documents were produced before the Trial Judge.
The complainant’s verification statement is also
not recorded. As such the order of issuance of
process is clearly a result of non-application of
mind by the trial Judge. Such order would mean
that merely on filing a complaint the process
could be issued. It would be unjust to the accused
if process is issued against him by the Magistrate
without first satisfying himself about the nature
of the case and whether there exists sufficient
grounds for proceeding with the case. Since this
is not done, then in the instant case the process
issued against petitioner No. 2 (Managing
Director) is liable to be quashed on this ground
alone. Without short circuiting the other grounds
it must be pointed out that perusal of the
complaint and in particular page 23 of the
complaint shows that the prosecution intends to
charge petitioner No. 2 as the principal offender
along with the petitioner No. 1-company. That is
not possible for the simple reason that offence
under Section 5 of the Imports and Exports
(Control) Act is done Principally by the licencee
(Company in this case) and/or by the abetter to
the offence. There are no allegations in the
complaint that the petitioner No. 2 either aided
or abetted in the contravention of licence
conditions by the petitioner No. 1-Company. As
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such on this ground also the process issued
against petitioner No. 2 is liable to be and is
quashed and set aside."
The criticism advanced by the learned Judge against the
trying Magistrate is wholly untenable and is perhaps
applicable to the learned Judge. If reference had been made
to Section 200 Proviso (a) of the Code of Criminal
Procedure, what has been advanced as the most impressive
ground for quashing the proceedings against the respondent
No. 2 could not at all have been accepted. The learned Judge
obviously has not cared to look into the procedural law
applicable to the factual situation before him. The learned
Judge also lost sight of the fact that similar objections
had once been raised and his High
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Court had refused to entertain the same and the order of the
High Court had been upheld here by dismissing the special
leave petition. The portion we have extracted from the order
of the High Court suggested that the learned Judge wanted to
draw a distinction between then and now by saying that the
records of investigation had not then been available.
Records of investigation are not evidence in this case and a
complaint could not be quashed by referring to the
investigation records particularly when the petition of the
complainant did allege facts which prima facie show
commission of an offence. The learned Judge did note the
fact that the licencee was a company but lost sight of the
fact that a company by itself could not act. Obviously the
Company has to act through some one. In the petition of the
complainant there was clear allegation that the Managing
Director had committed the offence acting on behalf of the
licencee. If the complainant’s petition had been properly
scrutinized the second ground advanced in the impugned order
for quashing the proceedings against the Managing Director
could not have been utilised in the impugned order. Both the
grounds are wholly untenable and, therefore, the order of
the High Court has got to be reversed. We allow the appeal
and vacate the order of the High Court.
Once the order of the High Court is vacated the order
of the learned Magistrate would revive and the prosecution
as directed by the learned Magistrate has now to continue.
The petition of the complainant at page 21 of the paper-book
shows that the offence was committed between 1967 and 1969
which is some 20 years back. While we have no sympathy for
the respondent No. 2 and we are clearly of the opinion that
he has no equity in his favour and the delay after the
complaint had been filed has been mostly on account of his
mala fide move, we do not think it would be in the interest
of justice to allow a prosecution to start 20 years after
the offence has been committed. If we could convict the
respondent No. 2 in accordance with law, we would have been
prepared to do so taking the facts of the case and conduct
of the respondent into consideration but that would not be
possible within the framework of the law of procedure. We,
therefore, do not propose to allow the learned Magistrate to
proceed with the trial of the case at this belated stage.
We accordingly direct the case to be closed against
respondent No. 2 without further delay. Ordinarily, in a
criminal case of this type there would have been no order
for costs. But keeping in view the background of the case,
the manner in which the respondent No. 2 has behaved and the
fact that he is squarely responsible for delaying the
301
proceedings by reiterating the same contention twice over.
We are of A the definite opinion that the respondent No. 2
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should be made to suffer exemplary costs. We accordingly
direct that he shall be called upon to pay a sum of Rs.
10,000 by way of costs and the said amount is to be
deposited in the trial court within one month hence failing
which the trial court shall have a direction to recover the
same as fine and pay the amount to the complainant.
Compliance shall be reported to the Registry of this Court.
N.P.V.
302