S.K. Chattopadhyaya, J.
1. Invoking the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India, the petitioners have prayed for quashing the entire proceeding as well as the investigation and order issuing warrant of arrest arising out Patna Vigilance P.S. Case No. 5/89 now pending in the court of the Special Judge (Vigilance), Ranchi.
2. As both the writ petitions arise out of the same FIR and similar points are involved they have been heard together and they will be government by this common judgment.
3. During the course of hearing an English translation of the 'First Information Report was submitted on behalf of the petitioners from perusal of which it appears that one Mohan Rajak, Deputy Superintendent of Police, CID (Vigilance) of the Bihar State Electricity Board (shortly 'the Board'), opposite party No. 2, lodged it on 16.6.1989. It was expressly averred therein that the petitioners, Brij Kishore Jhawar as the owner and O.P. Kapila as the Chief Executive Officer of the Usha Alloy Steel Ltd. in connivance with the officers of the Electricity Board, motivated manipulation in reading of the meter situated within the premises of the consumer as a result of which readings are recorded less and electrical energy has been thus stolen. The Vigilance department of the Board received a complaint that in collusion with the local officials of the Board the electrical energy consumed in the factory is not correctly recorded and build and every month there have been losses amounting to lacs of rupees. It was also reported that payment which are being made by the Company towards electricity bills, were being made by cheques and were credited to the account of the Board even after two months for which the Board is suffering loss in two ways, namely, the interest for Rs. 40 to 50 lacs and secondly, owning to this payment, the Company gets improper and illegal rebates. A preliminary investigation was made and after completion of the same it transpired that only 33 months during the period of investigation, the Board suffered a loss to the extent of more than four crores of rupees and Usha Alloy Steel Ltd. has gained by that amount. A special Committee was constituted by the General Manager-cum-Chief Engineer of Ranchi Area Board for reading the meters of the grid sub-section connected with and installed in the premises of the Company. The details have been given in the FIR to indicate as to how the investigation revealed that there was constant theft of electrical energy by the Company in collusion with the officials of the Board resulting in the huge loss to the State Revenue. Names of such officials have also been mentioned in the FIR including the petitioners. It was concluded that for the purpose of causing loss to the revenue of the Board and improper financial gain to the Company, the petitioners indulged into criminal conspiracy with the aforesaid officials of the Board. According to the informant due to the aforesaid criminal conspiry and loss to the Board the petitioner and the officials have committed offence under Sections 409, 420, 467, 468, 471, 120B and 210 of the India Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 39/39A of the Indian Electricity Act, 1910.
On the basis of the said FIR Patna Vigilance PS Case No. 5/85 corresponding to Special Case No. 30/89 was registered.
4. Dr. Debi Pal learned Counsel appearing on behalf of the petitioners raised the following points in support of his contention:
(i) So far the allegation for the offences under Sections 467, 468 and 471 of the Penal Code are concerned, no case has been made out even prima facie to suggest that the petitioners can be held guilty of such offences;
(ii) the petitioners not being the public servants, no offence can be said to have been committed by them under Section 13(2) of the Prevention of Corruption Act;
(iii) the offence under Section 409 of the Penal Code cannot have any application so far the petitioners are concerned as the petitioners are neither public servants nor were entrusted or had any domain over any property alleged to have been misappropriated. Electricity being intangible cannot fall within the definition of property and, as such there cannot be any question of entrustment. In support of this contention reliance has been placed on the decision of the Supreme Court reported in : [1963]1SCR253 . (iv) there being no allegation of any dissuation leading to fraudulent or dishonest inducement to deliver any property, no case of cheating can be said to have been made out so as to attract the provisions of Sections 420 and 120B of the Penal Code;
(v) mandatory requirement of Section 50 of the Indian Electricity Act, 1910 have not been complied with inasmuch as the prosecution has not been initiated by the Government of Bihar or any Electrical Inspector or by the Board when one of the principal charges is regarding alleged violation of Section 39 of the Electricity Act for dishonest abstraction of energy and also under Section 39A for abatement. Further, opposite party No. 2 admittedly not being an Electrical Inspector, cannot be treated as a person aggrieved and, as such, the proceeding initiated at his instance is incompetent and improper. Reliance has been placed on the decision of the Supreme Court reported in 1972ITR 787 and of this Court in 159ITR 818;
(vi) the company not being persecuted, the petitioners cannot be held responsible for the alleged offence. The Company being a public limited company, petitioner Jhawar cannot be said to be the owner of the Company. Similarly, petitioner Kapila has been wrongly described as the Chief Executive Officer although he is the special Adviser of the Company. In this connection decision reported in 1977 Cr LJ1821 has been relied on;
(vii) there being no allegation that petitioners Jhawar and Kapila were incharge of and were responsible to the Company for the conduct of the business of the company at the time when the alleged offence was committed, Section 39A of the India Electricity Act has no application. In support of this contention decisions reported in 1985 BLJ 320 and 1995 (1) PLJR 633 have been referred;
(vii) the allegations made in the FIR, on the face of it, are self-contradictory and inconsistent which do not even prima facie disclose any offence under Section 39 or 39A of the Indian Electricity Act;
(ix) in view of the decision reported in : 1982CriLJ819 no investigation should normally be permitted to continue if the materials do not disclose any offence;
5. Mr. M.Y. Eqbal, learned Government Advocate, countering the submissions of Dr. Pal has contended as follows:
(i) the allegation made in the FIR to disclose an offence of dishonest abstraction of electrical energy. Even though specifically the word 'dishonest abstraction' has not been used but the FIR has to be read as a whole:
(ii) whether petitioner Jhawar was the owner and over all incharge of the Company and was interested with the loss and profit of the company, is to be seen at the trial not at this stage by the High Court while exercising its powers under Articles 226 and 227 of the Constitution; Reference has been made to a decision reported in 1981 Cr. LJ 203; (iii) the complaint being made to the Vigilance department of the Board regarding huge pilferage of electricity in the said area and the opposite party No. 2 being the D.S.P. of the Vigilance department of the Board is definitely a person aggrieved. Reference has been made to the decision reported in A.I.R. 1936 All 742 followed in : AIR1969Mad280 .
(iv) investigation may reveal as to why there was difference in regarding of the meters i.e. whether for the fault of the grid meter or that of the consumer's meter. Though the term 'dishonesty, is not particularly mentioned in the FIR but the allegation of cheating and lack of honesty mentioned therein has to be considered in its true perspective as the ingredients of abstraction is not necessary to be there in all cases. Reference has been made to the decision reported in A.I.R. 1936 Cal 753;
(v) at this stage the petitioners cannot be allowed to pray for quashing of the FIR as well as the investigation and if after completion of the investigation it is found that no case has been made out against the petitioners, charge sheet may not be submitted against them. Reference has been made to the decisions reported in : 1974CriLJ802 and the decision rendered in Cr. WJC No. 73/92 (R) decided on 28-7-1995.
6. In order to enter into the domain of the contending claims put forward before this Court, the relevant provisions of the Penal Code and other laws relating to the case may profitably be looked into.
7. Section 2(c) of the Indian Electricity Act, 1910 (the Electricity Act in brief) defines the term 'consumer' thus: '
(C) 'Consumer' means any person who is supplied with energy by a licensee of the Government or by any other person engaged in the business of supply energy to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of the licensee, the Government or such other person, as the case may be';
Section 2(g) defines 'energy' which means electrical energy'-
(i)generated, transmitted or supplied for any message;
(ii)used for any purpose except the transmission of a message;
Section 2(h) defines 'licensee' which means any person licensed under Part II to supply energy.
8. The older definition of the term 'consumer' has been amended by Act 32 of 1959 and at present a consumer means any person who is supplied with energy by (a) licensee (b) Government and (c) any other person engaged in the business of supplying energy to the public under this Act or any other law for the time being in force. It appears that it is expressly made clear that this definition would include any person whose premises are for the time being connected for the purpose of receiving energy, whether that person is actually receiving at that time any energy or not. I have already indicated that the expression 'energy' means electrical energy. Thus the word 'consumer' with reference to the expression 'whose premises are for the time being connected for the purpose' does not include in the case of a Mill, the Manager thereof. In order to be a consumer the person must be either a person to whom energy for any other purpose but transmission of a message was supplied or he was owner or occupier of the premises connected up with the supply company's electric system. A person who is a registered consumer falls under the definition of 'consumer'. The definition of the word 'consumer' does not deal only with the intentional or conscious supply or only with a valid and contractual receipt of energy. It is only the actual supply of energy which is relevant. If electrical energy is supplied to any person by the licensee or the Board, he will be a consumer. Thus the definition of 'consumer' will include a person receiving energy even by tappoing pilferage and theft. This is one part of the definition of consumer. Second part of this definition of consumer includes with in its ambit any person whose premises are connected for the purpose of receiving energy with the works of a licensee. It is immaterial how and under what circumstances the supply line is connected with the consuming line in the premises. May be as the connection was not made at the owner's request but as electrical energy was supplied to the meter, there was undoubtedly a connection. What is relevant is only whether energy is supplied or not from the connection.
9. Similarly Bihar Electricity Duty Act, 1948 defines 'consumer' as any person who is supplied with energy by licensee and 'licensee means any person including a Company or local authority licenced under part II of the Indian Electricity Act, 1910, to supply energy or any person including a Company or a local authority who has obtained sanction under Section 28 of that Act to energy in the business of supplying energy. In the case of Bhagalpur Electric Supply Co. Ltd. v. Hari Prasad Saha and Ors. A.I.R. 1938 Pat 15 the Court, while interpreting the meaning of the term 'consumer' has held, inter alia:
The definition of 'consumer' including any person who is supplied with energy by a licensee and any person whose premises are for the time being connected for the purpose of a supply of energy with the works of the licensee. Therefore prima facie, it should be enough to prove either that energy was supplied for use of the persons or that the persons were owners or occupiers of premises connected up with the licensee's electric system.
10. In view of the above definition it is clear that Usha Alloy Steel Ltd. is a consumer and the petitioner Jhawar being the owner of Usha Steel Ltd. will a also come within the purview of Section 2(c) of the Electricity Act.
11. Section 22 of the Indian Penal Code defines movable property which reads:
Section 22. 'Movable property'- The words 'movable property' are intended to include corporeal property of every description, except land and things attached to the earth or permanently fostened to anything which is attached to the earth.
12. In the case of Avtar Singh v. State of Punjab, reported in : 1965CriLJ605 , it is held that electricity is not considered to be movable, property and that Section 378 by itself would not include theft of electricity. However, abstraction of electricity , by virtue of Section 39 of the Electricity Act to be deemed to be an offence under the Indian Penal Code and the offence so created would entail punishment mention in the Indian Penal Code for that offence even though punishment is not under the Indian Penal Code itself. Thus, though theft of electricity is not theft within the meaning of Section 378 of the Penal Code itself, nevertheless a theft by virtue of fiction created by Section 39 of the Electricity Act, is liable to be punished in the like manner as theft under Section 379. The Madras High Court in the case of Tamil Nadu Electricity Board v. Kariappa Mudaliaya, reported in 1985 Cr. LJ 561, relying on the aforesaid decision of the Supreme Court, has held that where consumer has willfully or fraudulently altered index of the meter and tempered with the writing for preventing it from duly registering energy consumed, must be held to have committed offence of theft of energy.
13. In the instant case one of the allegations in the FIR is that during the period of 1986-88, on the one hand there was a large increase in the electricity units supplied according to the reading of the meter of the grid whereas in the meter situated at the factory premises of the consumer the units of power consumers were less than before and more so , when there was substantial increase of production of iron blades in the factory. It is alleged that with the connivance of the FIR named Board officials, the consumer motivated manipulations in the reading of the meter situated within the premises of the consumer by recording less consumption by the consumer and thus resulted in theft of energy. It is to be borne in mind) that the FIR has been lodged not only against the petitioner but also the aforesaid officials of the Board under Section 409, 420, 467, 471, 120B and 201 of the Indian Penal Code and read with other sections of the Prevention of Corruption Act and Electricity Act. Under this circumstances, which of the aforesaid provision of the Penal Code , has to be gone into at the trial stage. In my opinion, on that ground itself the FIR against the petitioners for the alleged offence under the Penal Code cannot be quashed in its threshold. My aforesaid conclusion can be looked into from another angle. Admittedly, the petitioners are not public servants but as because the officials of the Board have been made accused, the allegation of committing offence under Section 13(2) of the Prevention of Corruption Act, 1986 has been levelled. The matter can be thrashed out at its proper stage at the time of framing of charge as to which of the accused can be proceeded against under a particular provision of the Penal Code or the Act. In this view of the matter, I am unable to agree with the submission of Dr. Pal and the same must be rejected.
14. The contention of Dr. Pal that the informant not being the Electrical Inspector, cannot be treat as a person aggrieved and as such, he had not authority to lodged the FIR is to be considered in the light of the provisions contemplated under Section 50 of the Electricity Act. Section 50 of the Electricity Act reads as follows:-
Institution of prosecution.-No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or a State Electricity Board or an Electrical Inspector, or of a person aggrieved by the same.
15. In the case of Avtar Singh (supra) on which strong reliance has been placed by Dr. Pal, the Supreme Court allowed the appeal by setting aside the conviction observing as follows:-
Learned Counsel for the respondent also sought to contend that the present prosecution was at the instance of a person aggrieved by theft. We do not think we should allow him at this stage to go into that question. The appellant has along been contending that his prosecution was bad because it was not at the instance of the Government or an Electrical Inspector or a person aggrieved by the theft. It was clearly for the established that the prosecution had been instituted at the instance of a person aggrieved as it now seeks to do. It has never been disputed at any earlier stage that the prosecution had not been at the instance of one of the persons mentioned in Section 50. The onus of proving that fact was clearly on the respondent. It is a question of fact and we have no material on the record by which we can decide it. We, therefore, think that this case must be decided on the basis, as it was in the courts below, that the prosecution would be incompetent under Section 50 if it was in respect of an offence against the Act. We have found that it was in respect of such an offence.
However, in that decision their Lordships considering the allegations made against the appellant, held that the offence was created under Section 39 and since in the Legislature's view Section 39 created an offence, it has to be held that was one of the offence to which Section 50 was intended to apply. Thus it is clear that their Lordships were of the opinion that dishonesty in abstracting electricity is an offence against the Electricity Act but as because the onus of proving that the informant in that case was a person aggrieved, was not discharged by the persecution and which was question of fact, the Supreme Court refused to permit the respondent to agitate the same at the appellate stage.
16. On the other hand, in the case of Bhagalpur Electrict Supply Company (supra) this Court has held that the Resident Engineering being the principal officer of the Company incharge of the management, is a person aggrieved by an offence against the Company. This Bench relied on a Division Bench decision of the Allahabad High Court reported in A.I.R. 1939 All 742 wherein it was explained that when a responsible officer of a company reports an offence to the police and prosecution thereupon is set on foot, that will be considered to be prosecution instituted at the instance of the Company. The aforesaid Patna decision has been again relied by the Madhya Pradesh High Court in the case of Jhalkan Singh and Anr. v. State of Madhya Pradesh reported in 1981 Cr. LJ 1230 where the officer incharge of the Madhya Pradesh Electricity Circle was held to be a person aggrieved as required under Section 50 of the Electricity Act. The view taken by this High Court in the case of Bhagalpur Electric Supply Company Ltd. (supra) has been confirmed by the Supreme Court in the case of Ram Chandra Prasad Sharma v. State of Bihar reported in : 1967CriLJ409 . Same view has be reiterated by a Division Bench of the Delhi High Court in the case of State Delhi Administration v. Dharampal reported in 1980 Cr.LJ 1394.
17. In the instant case the FIR has been lodged by one Mohan Rajak, the Dy. Superintendent of Police C.I.D. (Vigilance) of the Board. It is a question of fact to be gone into in view of Avtar Singh's case (supra) as to whether Mohan Rajak was a person aggrieved or not. In the case of Ram Chandra Prasad Sharma and Ors. (supra) this aspect of the matter has been dealt with by the Supreme Court by following observations:
The prosecution here was commenced with a charge-sheet submitted by the police to the judicial Magistrate. The offences were investigated into by the police after the first information report was launched with them by Bhattacharaya. What is contended is that information given by him could not entitle the police to submit the charge-sheet. It is also said that submission of a charge-sheet by the police is not the same thing as institution of prosecution at the instance of the State. It is however, not disputed that if the law was set in motion by a person aggrieved by making a first information report to the police a charge-sheet could properly be submitted by the police. It is true that Bhattacharaya was not himself, a person aggrieved and that the 'person aggrieved' was P.E.S. Company. The P.E.S. Co. however, is a body Corporate and must act only through its Directors or Officers.
Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co. and that he was specifically empowered thereunder to act on behalf of P.E.S. Co. in all legal proceedings. The evidence shows that it was at his tance that Bhattacharaya launched the first information report and, therefore, it would follow that the law was set in motion by the 'person aggrieved'. The objection based on Section 50 must, therefore, be held to be untenable.'
18. On the backdrops of the aforesaid authoritative pronouncement, in my view, the objection put forward by Dr. Pal must be held to be without merit and the decisions relied by him on this point have no application to the facts and circumstances of the present case.
19. I now pass on to consider the next question argued on behalf of the petitioners, namely, whether without prosecuting the Company, the petitioners can be proceeded against. In this context the argument of Dr. Pal is the Company being a public Limited Company, Jhawar cannot be said to be the owner of the Company Similarly Kapilahas been wrongly described as the Chief Executive Officer and he being only the special advisor of the Company, cannot be held responsible for the alleged offence. In the FIR allegation against Jhawar is that being the owner of the Company he has connived with the officials of the Board to commit the offence. It is not in dispute that the Company is the consumer under the Board. Whether being the owner, he is taking part in running the company again is also a question of fact which cannot be gone into at this stage. Similarly, whether Kapila was advisor or the Chief Executive Officer of the Company, is to be decided at the proper stage. This aspect of the matter fell for consideration before the Supreme Court in the case of Ram Chandra Prasad Shartna and Ors. (supra) where their Lordships, after noticing the definition of the 'consumer' in Section 2(c) of the Electricity Act, observed as follows:-
It is admitted fact that the mill was connected with works of P.E.S. Co. If, therefore, the appellant became co-owners by reason of the purchase of the mill from Musanlal, they must be regarded as consumers even though Musanlal's name still continues to be borne on the records of P.E.S. Co.
20. In this connection provisions laid down in Section 49A of the Electricity Act may be looked into:
49A. Offences by Companies.-(1) If the person committing an offence under this Act is 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 any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed with the consent or conniuance of, or is attributable to any neglect on the part of, any director or manner secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section:-
(a) 'consumer' means and body corporate and includes a firm or other association of individuals; and
(b) 'Director' in relation to a firm, means a partner in the firm.
21. In order to appreciate the argument of Dr. Pal similar provisions in Section 10 of the Essential Commodities Act can be usefully quoted;-
10. Offences by Companies.-(1) If the person contravening an order made under Section 3 is a Company, every person who, at the time the contravention was committed, was in-charge of and was responsible to the Company for the conduct of the business of the Company, shall be' deemed to be guilty of the contravention 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 any punishment if he proves that the contravention took place without his knowledge or that the exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed by a company any it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other officer, shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purposes of this section-
(a) 'Company' means any body corporate and includes a firm or other association of individuals; and
(b) 'Director' in relation to a firm, means a partner in the firm.
Bare reading of these two Section of the Electricity Act as well as the Essential Commodities Act reveals that both the provisions are in part material. The Full Bench of this Court in the case of Madan Mohan Upadhayaya v. State of Bihar reported in 1986 PLJR 537, after elaborate consideration of similar provisions in respect of other Acts, have held that once the allegation is levelled or established, then by fiction of law every person, including the partner incharge of or responsible to the firm of the conduct of its business is in the eye of law, deemed as much guilty of the offence as the partnership firm itself. I cannot do better except in following the principles enunciated in paragraph 10 of the Full Bench decision which read thus:-
It is well settled that strict criminal liability of companies or partnership firm or other association of individuals is in a class by itself and poses legal problems peculiar to them. The issue of vacarious liability of a partner of a firm through whom the national firm must necessarily Act, therefore, comes to the force in this context. A plain reading of Section 10 of the Act would indicate that it is expressly intended to incorporate to stringent principles of strict vicarious criminal liability of person, who are in charge of and responsible to the firm for the conduct of its business for all offences committed by the partnership firm. Now strict vicarious liability is somewhat of an excretion to the general rule of direct personal culpability and is modern development through statutory provisions. That there can be such vicarious criminal liability by legislative mandate is no longer in dispute. Nevertheless steeped as we are in the basic principle of criminal jurisprudence that mens rea must be the ingredient of an offence, it needs some effort to accept whole hardly the legislative mandate of vicarious criminality even in the absence of one or the other of the aforesaid ingredients, namely, that both the Act and the intent must concur to constitute a crime.
22. It is manifest from the allegations made in the FIR against the petitioners of their deep interstendness in the loss and profit of the business of Usha Alloy Steel Ltd. and the petitioner Jhawar is the owner of the said Company and Kapila is the Chief Executive Officer of the same. Sub-section (2) of Section 10 of the Essential Commodities Act has been held to be wider in its application. Their lordships continued further by observing that as against Sub-section (1) which foists the vicarious liability only on the person incharge of or responsible to the Company for the conduct of its business, Sub-section (2) imposes a somewhat similar liability on a larger class of Directors, Managers, Secretaries or even other officers of the Company. In a way, according to their Lordships, this sub-section is envisaged to widen the net of a vicarious liability and to bring within its ambit not only the primal officers of the Company, partnership or other association of individuals but even other officers thereof, if the commission of the offence by the Company can be established to have been done with the consent, connivance or neglect on their part. According to their Lordships the role and scope of Sub-section (2) are some what different to that of Sub-section (1). The former is made applicable only to persons directly incharge of or responsible to the Company any the latter having a wider application, though in a somewhat narrower field they might slightly overlap. Equally the stringency of vicarious liability in the two subsections is variable. In such view of the matter, in my considered opinion, the argument of Dr. Pal has to leg to stand.
23. The next contention of Dr. Pal that without proceeding against the Company the petitioners cannot be proceeded against, in my view is only to be noticed and rejected. This aspect of the matter is no more in controversy. In the case of Sheo Ratan Agrawal and Ors. v. The State of Madhya Pradesh reported in : [1985]1SCR719 , the same point was agitated before their Lordships in a case under the Essential Commodities Act and interpreting Section 10 of the E.C. Act their Lordships observed as follows:-
We do not think the language of Section 10 of the Essential Commodities Act justified the submission made on behalf of the petitioners that if it is alleged that the person contravention the Order made under the Essential Commodities Act, is a Company, the prosecution of the Directors, the officers and servants of the Company or other persons is precluded unless the Company itself is prosecuted. We are afraid the submission made on behalf of the petitioners proceeds upon a misunderstanding of the decision of this Court in State of Madras v. CV. Parekh (supra). So do the various other decisions of the High Court cited before us.
After noticing the provisions of Section 10 their Lordships inter alia, held that there is no statutory compulsion that the person-in-charge or an officer of the Company may not be prosecuted unless he be ranged alongside the company itself.'
24. Section 49A of Electricity Act is indicate the person who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person in-charge or an officer of the company may not be separately prosecuted if the Co. itself is not prosecuted. Explaining the decision in the case of State of Madras v. CV. Parekh (supra) their Lordships has held that on a careful reading of that case will show and not that the person incharge of or an officer of the Company must be arraigned simultaneously with the Company if he if he is to be found guilty and punished. Noticing paragraph 3 and under scoring some sentences therein, their Lordships quoted by observing that:
The sentences underscored by us clearly show that what was sought to be emphasised was that there should be a finding that the contravention was by the Company before the accused could be convicted and not that the Company itself should have been prosecuted along with the accused. We are, therefore, clearly of the view that the prosecutions are maintainable and that there is nothing in Section 10 of the E.C. Act which bars such prosecution.
25. In view of this settled law, in my considered opinion, it is futile for the petitioners to urge that without proceeding against the Company, the petitioners cannot be prosecuted.
26. The jurisdiction of the High Court in exercise of its power either under Articles 226 and 227 of the Constitution or under Section 482 of the Code of Criminal Procedure for quashing an FIR and criminal proceedings has been explained by the Supreme Court in various decisions. In order to avoid multiplicity of decisions. I may usefully refer to the recent decision of the Apex Court in the case of State of Tamil Nadu v. Thirkkural Perumal reported in A.I.R. in 1995 (2) SCC 449, where, while setting aside the order of the High Court quashing the FIR their Lordships have held that:
The power of quashing in FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments (reference in this connection may be made with advantage to State of Hariyana v. Bhajnalal, but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The court is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482, Cr.PC seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability collected during the investigation.
27. From the aforesaid observations it is clear that the Supreme Court is of the view that the High Court will not be justified in quashing an FIR or criminal proceedings even after completion of investigation on scrutinising the evidence collected during investigation. On the other hand, in the present case the petitioners have moved this Court as soon as the FIR was lodged against them in the year 1989. this Court stayed the proceedings as well as the execution of warrant of arrest so far the petitioners are concerned. It appears that liberty was given to either party to move the Hon'ble the Chief Justice for fixing an early date of hearing after six weeks from the date of hearing after six weeks from the date of admission i.e. 4.8.1989 but no step was taken by either of the parties for hearing this matter at an early date and ultimately the case was listed for hearing in the year 1995. Though this Court did not stay the investigation by the concerned officer but no information to this Court could be given by the counsel for the parties as to the result of such investigation. However, that cannot be a ground to quash either the FIR or the criminal proceedings.
28. Having given my anxious consideration to the facts and circumstances of the case, in my view, no case has been made out by the petitioners for quashing the FIR as well as the criminal proceedings against them and and as much these petitions are dismissed. Office is directed to communicate this order to the Court below forthwith without any further delay. The learned court below, before whom the case is pending, is directed to proceed in the matter as expeditiously as possible taking into consideration the fact that there has been much delay in the investigation and submission of final form.