Syed Mohd. Iqbal and anr. Vs. Deptt. of Horticulture and anr. - Court Judgment

Excerpt:
- ordermansoor ahmad mir, j.1. petitioners have sought indulgence of this court by invoking inherent jurisdiction of this court in terms of section 561-a of criminal procedure code for quashing of the complaint titled as ghulam hassan najar v. fungicide india limited (file no. 13/m, dated of institution 13-6-2001) and proceeding drawn therein, pending in the court of judicial magistrate 1st class (sub-registrar), srinagar.2. it appears that written complaint came to be filed by divisional manager, plant protection stores/workshop lalmandi, srinagar under section 29a of insecticides act 1968 in the court of judicial magistrate 1st class (sub-registrar), srinagar, on 13th june, 2001. after recording the preliminary statements of the complainant and upon perusal of the complaint the trial court has drawn cognizance and issued process against the accused and accordingly bailable warrant came to be issued against the accused vide order dated 13th june, 2001.3. it appears that on 10th july, 2001, one mohammad javed, general manager of fungicides india limited, sheikh bagh, srinagar caused appearance and stated that syed mohammad iqbal and syed mohammad altaf are the proprietors and owners of the fungicides (india) ltd. and accordingly, summons came to be issued against syed mohammad iqbal and syed mohammad altaf.4. petitioners, herein feeling aggrieved by the order dated 13th june, 2001, 10th july, 2001 and 11th april, 2003 filed revision petition in the court of principal sessions judge, srinagar on 7th may, 2003 which came to be dismissed vide order dated 8th march, 2004.5. after dismissal of the revision petition by principal sessions judge, srinagar, petitioners invoked the jurisdiction of this court in terms of the petition in hand on 6th may, 2004.6. heard. perused. considered.7. exercising powers under section 561-a, cr.p.c. is an exception and not the rule. this provision of law does not confer any new powers on the high court. it prescribes following the circumstances under which inherent jurisdiction can be exercised by the high court:1) to give effect to an order under the code;2) to prevent abuse of the process of court; and3) to otherwise to secure the ends of justice.8. while exercising powers under this section, this court does not function as an appellate court or revisional court. thus the inherent jurisdiction in terms of this section is to be exercised sparingly, carefully and with great care and caution.9. the question is whether this power is to be exercised or not?10. it is profitable to reproduce section 33 of insecticides act, 1968, herein, which reads as under:33. offences by companies. (1) whenever an offence under this act has been committed by a company, every person who at. the time the offence was committed was in charge of, or 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 tp be proceeded against and punished accordingly:provided that nothing contained in this sub-section shall render any such person liable to any punishment under this act, 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 by a company and 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 of the company, such 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.11. this provision of law mandates that if an offence is committed which is punishable under section 29/a of insecticides act by a company, every person who was incharge of or was responsible to the company for the conduct of the business, shall be deemed to be the guilty of the offence. the trial court after perusing the complaint and preliminary statement of the complainant has drawn the cognizance and issued process against proprietor vide order dated 13-6-2001 after drawing satisfaction that there were grounds to proceed with the case.12. perusal of trial court record reveals that on 10th july, 2001 one mohammad javed appeared before the trial court and on his request summon came to be issued against syed mohammad altaf, petitioner no. 1 herein. thereafter summons came to be issued against syed mohammad altaf and syed mohammad iqbal vide order dated 11-4-2003.13. feeling aggrieved of the said orders, petitioners filed a revision petition before the court of principal sessions judge, srinagar, which came to be dismissed vide order dated 8th march, 2004. it is profitable to reproduce the relevant portion of the said judgment herein, which reads as under:i have heard learned counsel for the parties and perused the file. the learned counsel for the petitioner, while assailing the order of the trial court has submitted that the same has been passed without application of mind in an illegal manner and is without jurisdiction. according to him though the petitioners are the proprietors of the firm but they could not be prosecuted by the trial court as at the time of the alleged commission of offence they were not in charge of the company.on thoughtful consideration of the matter and the relevant provisions of the insecticides act 1968 under which the complaint has been filed i am of the opinion that the argument of petitioner's counsel is not tenable as it has no legal force. under section 33 of the aforesaid act every person who at the time the offence was committed, was incharge of, or was responsible to the company for the conduct of 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. a bare perusal of this section makes it unambiguously clear that the petitioners were liable to be indicated as accused in the complaint filed against their company because as proprietors of the firm they were responsible for conduct of business of their business concern which was accused of misbranding the pesticides. in this view of the matter the orders under revision appear to have been passed in accordance with relevant law and do not suffer from any illegality or impropriety. in these circumstances the present revision being without any force cannot succeed and deserves to be dismissed.the result, therefore, is that the revision petition is dismissed and the order of the trial court confirmed. let a copy of this order along with the main file be sent to the court below where the learned counsel for the parties are directed to cause their appearance on 29-3-2004.14. it appears that names of petitioners are not given in the complaint or in the preliminary statement of the complainant 'recorded at the time of presentation of the complaint. the trial court has also not issued process against the petitioners herein vide order dated 13th june, 2001. as discussed hereinabove, the cognizance came to be issued against the proprietor. the particulars of proprietor are not given in the complaint.15. keeping in view the mandate of section 33 of insecticides act, 1968, referred hereinabove, if an offence is committed by a company, every person who at the time of commission of offence was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, are deemed to be guilty of the offence and are to be proceeded against and punished accordingly. it was for the complainant to furnish details but it appears that complainant has not furnished particulars of all those persons. in terms of order dated 10th july, 2001 and 11th april, 2003 summon came to be issued against petitioner without any material.16. the complaint is just an information to the court that offence(s) has/have been committed. magistrate after taking cognizance can direct inquiry or investigation in terms of section 202 of criminal procedure code or can direct registration of the case even before taking cognizance or can issue process in terms of section 204 of criminal procedure code. in the instant case complaint came to be presented, cognizance came to be drawn and process issued without mentioning the particulars of the accused.17. keeping in view the discussion made hereinabove, that the complainant has not disclosed in the complaint the names of accused in the complaint or in the evidence that who was (were) the proprietor(s) and who was/were person(s) involved in the commission of offence in terms of mandate of section 29/a read with section 33 of insecticides act.18. it appears that learned sessions judge has not thrashed out this point of law. thus has fallen in an error.19. viewed thus, i deem it proper to set aside/quash the impugned orders whereby summon came to be issued against petitioners, with a direction to the trial court to proceed ahead in terms of discussion made hereinabove and while keeping in view the mandate of law applicable. the complainant is at liberty to examine the witnesses or. produce any other evidence disclosing who was (were) the proprietor(s) and the person(s) responsible for the commission of offence at the relevant point of time.20. accordingly, this petition is allowed and orders dated 10th july, 2001 and 11th april, 2003 passed by 1st class judicial magistrate (sub-registrar) srtnagar and orr der dated 8-3-2004 passed by learned sessions judge in the revision petition are hereby quashed, the case is remanded back to the trial court with a direction to proceed ahead while keeping in view the observations made hereinabove. trial court shall issue notice to the complainant. file shall come up before the trial court on 1-8-2006.21. registry is directed to send down the record along with a copy of this order.

Judgment:
ORDER

Mansoor Ahmad Mir, J.

1. Petitioners have sought indulgence of this Court by invoking inherent jurisdiction of this Court in terms of Section 561-A of Criminal Procedure Code for quashing of the complaint titled as Ghulam Hassan Najar v. Fungicide India Limited (file No. 13/M, dated of institution 13-6-2001) and proceeding drawn therein, pending in the Court of Judicial Magistrate 1st Class (Sub-Registrar), Srinagar.

2. It appears that written complaint came to be filed by Divisional Manager, Plant Protection Stores/Workshop Lalmandi, Srinagar under Section 29A of Insecticides Act 1968 in the Court of Judicial Magistrate 1st Class (Sub-Registrar), Srinagar, on 13th June, 2001. After recording the preliminary statements of the complainant and upon perusal of the complaint the trial Court has drawn cognizance and issued process against the accused and accordingly bailable warrant came to be issued against the accused vide order dated 13th June, 2001.

3. It appears that on 10th July, 2001, one Mohammad Javed, General Manager of Fungicides India Limited, Sheikh Bagh, Srinagar caused appearance and stated that Syed Mohammad Iqbal and Syed Mohammad Altaf are the proprietors and owners of the Fungicides (India) Ltd. and accordingly, summons came to be issued against Syed Mohammad Iqbal and Syed Mohammad Altaf.

4. Petitioners, herein feeling aggrieved by the order dated 13th June, 2001, 10th July, 2001 and 11th April, 2003 filed revision petition in the Court of Principal Sessions Judge, Srinagar on 7th May, 2003 which came to be dismissed vide order dated 8th March, 2004.

5. After dismissal of the revision petition by Principal Sessions Judge, Srinagar, petitioners invoked the jurisdiction of this Court in terms of the petition in hand on 6th May, 2004.

6. Heard. Perused. Considered.

7. Exercising powers under Section 561-A, Cr.P.C. is an exception and not the rule. This provision of law does not confer any new powers on the High Court. It prescribes following the circumstances under which inherent jurisdiction can be exercised by the High Court:

1) to give effect to an order under the Code;

2) to prevent abuse of the process of Court; and

3) to otherwise to secure the ends of justice.

8. While exercising powers under this Section, this Court does not function as an appellate Court or revisional Court. Thus the inherent jurisdiction in terms of this Section is to be exercised sparingly, carefully and with great care and caution.

9. The question is whether this power is to be exercised or not?

10. It is profitable to reproduce Section 33 of Insecticides Act, 1968, herein, which reads as under:

33. Offences by companies. (1) Whenever an offence under this Act has been committed by a company, every person who at. the time the offence was committed was in charge of, or 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 tp be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act, 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 by a company and 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 of the company, such 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.

11. This provision of law mandates that if an offence is committed which is punishable under Section 29/A of Insecticides Act by a company, every person who was incharge of or was responsible to the company for the conduct of the business, shall be deemed to be the guilty of the offence. The trial Court after perusing the complaint and preliminary statement of the complainant has drawn the cognizance and issued process against proprietor vide order dated 13-6-2001 after drawing satisfaction that there were grounds to proceed with the case.

12. Perusal of trial Court record reveals that on 10th July, 2001 one Mohammad Javed appeared before the trial Court and on his request summon came to be issued against Syed Mohammad Altaf, petitioner No. 1 herein. Thereafter summons came to be issued against Syed Mohammad Altaf and Syed Mohammad Iqbal vide order dated 11-4-2003.

13. Feeling aggrieved of the said orders, petitioners filed a revision petition before the Court of Principal Sessions Judge, Srinagar, which came to be dismissed vide order dated 8th March, 2004. It is profitable to reproduce the relevant portion of the said judgment herein, which reads as under:

I have heard learned Counsel for the parties and perused the file. The learned Counsel for the petitioner, while assailing the order of the trial Court has submitted that the same has been passed without application of mind in an illegal manner and is without jurisdiction. According to him though the petitioners are the proprietors of the firm but they could not be prosecuted by the trial Court as at the time of the alleged commission of offence they were not in charge of the company.

On thoughtful consideration of the matter and the relevant provisions of the Insecticides Act 1968 under which the complaint has been filed I am of the opinion that the argument of petitioner's counsel is not tenable as it has no legal force. Under Section 33 of the aforesaid Act every person who at the time the offence was committed, was incharge of, or was responsible to the company for the conduct of 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. A bare perusal of this Section makes it unambiguously clear that the petitioners were liable to be indicated as accused in the complaint filed against their Company because as proprietors of the firm they were responsible for conduct of business of their business concern which was accused of misbranding the pesticides. In this view of the matter the orders under revision appear to have been passed in accordance with relevant law and do not suffer from any illegality or impropriety. In these circumstances the present revision being without any force cannot succeed and deserves to be dismissed.

The result, therefore, is that the revision petition is dismissed and the order of the trial Court confirmed. Let a copy of this order along with the main file be sent to the Court below where the learned Counsel for the parties are directed to cause their appearance on 29-3-2004.

14. It appears that names of petitioners are not given in the complaint or in the preliminary statement of the complainant 'recorded at the time of presentation of the complaint. The trial Court has also not issued process against the petitioners herein vide order dated 13th June, 2001. As discussed hereinabove, the cognizance came to be issued against the proprietor. The particulars of proprietor are not given in the complaint.

15. Keeping in view the mandate of Section 33 of Insecticides Act, 1968, referred hereinabove, if an offence is committed by a Company, every person who at the time of commission of offence was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, are deemed to be guilty of the offence and are to be proceeded against and punished accordingly. It was for the complainant to furnish details but it appears that complainant has not furnished particulars of all those persons. In terms of order dated 10th July, 2001 and 11th April, 2003 summon came to be issued against petitioner without any material.

16. The complaint is just an information to the Court that offence(s) has/have been committed. Magistrate after taking cognizance can direct inquiry or investigation in terms of Section 202 of Criminal Procedure Code or can direct registration of the case even before taking cognizance or can issue process in terms of Section 204 of Criminal Procedure Code. In the instant case complaint came to be presented, cognizance came to be drawn and process issued without mentioning the particulars of the accused.

17. Keeping in view the discussion made hereinabove, that the complainant has not disclosed in the complaint the names of accused in the complaint or in the evidence that who was (were) the proprietor(s) and who was/were person(s) involved in the commission of offence in terms of mandate of Section 29/A read with Section 33 of Insecticides Act.

18. It appears that learned Sessions Judge has not thrashed out this point of law. Thus has fallen in an error.

19. Viewed thus, I deem it proper to set aside/quash the impugned orders whereby summon came to be issued against petitioners, with a direction to the trial Court to proceed ahead in terms of discussion made hereinabove and while keeping in view the mandate of law applicable. The complainant is at liberty to examine the witnesses or. produce any other evidence disclosing who was (were) the proprietor(s) and the person(s) responsible for the commission of offence at the relevant point of time.

20. Accordingly, this petition is allowed and orders dated 10th July, 2001 and 11th April, 2003 passed by 1st Class Judicial Magistrate (Sub-Registrar) Srtnagar and orr der dated 8-3-2004 passed by learned Sessions Judge in the revision petition are hereby quashed, The case is remanded back to the trial Court with a direction to proceed ahead while keeping in view the observations made hereinabove. Trial Court shall issue notice to the complainant. File shall come up before the trial Court on 1-8-2006.

21. Registry is directed to send down the record along with a copy of this order.