ORDER [ENTITY], J[CASE NUMBER]
1[CASE NUMBER] These two petitions([CASE NUMBER][CASE NUMBER][CASE NUMBER] and [CASE NUMBER][CASE NUMBER][CASE NUMBER]) are filed for invoking the inherent powers of this Court under [SECTION] of [ACT] for setting aside the two orders dt[CASE NUMBER]7[CASE NUMBER]1[CASE NUMBER]2008 passed by Special Judge, Shoepur, in two different [CASE NUMBER], whereby the learned Judge has rejected the applications filed on behalf of the petitioner under [SECTION] of [ACT] rejecting his prayer to decide the appeals considering the nomination order as an additional evidence in the case[CASE NUMBER]
2[CASE NUMBER] The brief facts, which have been admitted by both the parties during the course of arguments are that the petitioner has been convicted for the offence punishable under [SECTION] of the [ACT] (hereinafter referred to as "the Act") in two different criminal trials[CASE NUMBER] Feeling aggrieved, he has filed two criminal appeals which are pending in the Court of Special Judge, Sheopur at [CASE NUMBER][CASE NUMBER] During pendency, in both the appeals, two separate applications under [SECTION] of [ACT] along with [SECTION] of the Act have been filed on behalf of the petitioner praying therein that one [ENTITY] had been nominated under [SECTION] of the Act, by the firm of the petitioner and the same had been communicated to and acknowledged by the Local (Health) Authority (Authority in short) vide its order dt[CASE NUMBER]30th August, 1991[CASE NUMBER] That nomination order was given by the petitioner to his advocate to use the same for the necessary purpose, but the advocate concerned could not file the appropriate applications during trials[CASE NUMBER] The nomination order is a material document to be considered for just decision of the criminal case pending against the petitioner[CASE NUMBER] Hence, the same ought to be taken on record as an additional evidence for consideration[CASE NUMBER] These applications have been rejected by the learned Judge vide impugned orders mainly on the grounds,
(i)[CASE NUMBER] That, before the trial, the Food Inspector could have been apprised with regard to the fact of nomination under [SECTION] of the Act[CASE NUMBER]
(ii)[CASE NUMBER] That, this fact has also not been mentioned by the petitioner at the time of his statement recorded under [SECTION] of [ACT]
(iii)[CASE NUMBER] That, in case the application is allowed, nominee will also be required to be provided an opportunity of hearing and as such the trial will start from its initial stage[CASE NUMBER]
3[CASE NUMBER] Shri [ENTITY], the learned Senior Advocate assisted by Shri [ENTITY], Advocate, appearing on behalf of the petitioner, has submitted that the petitioner is a partner of the firm Hindustan Food Products India, who is manufacturing Gwala Ghee[CASE NUMBER] It is alleged that the samples collected of this ghee from its dealers were found below standard[CASE NUMBER] As the ghee was found purchased from the firm of the petitioner, he has also been arrayed as an accused alongwith others[CASE NUMBER] He has further submitted that as provided by [SECTION] of the Act, manager [ENTITY] has been nominated and on communication the same has been acknowledged vide aforementioned order dated 30[CASE NUMBER]8[CASE NUMBER]91 by the Authority[CASE NUMBER] No written reply either in court below or in this Court countering the fact of nomination has been filed by respondent[CASE NUMBER] Thus, this fact was very much in the notice of Food Inspector or the same could have been known by him[CASE NUMBER] Once the fact of nominee is admitted, as per the provision of [SECTION], a nominee alone and none else could have been prosecuted, unless the complainant has specifically alleged in complaint against any other person related to the company that he is also incharge and responsible to the company for its conduct of business and also the alleged act has been committed with the consent or connivance or its attributable to any neglect on the part of that other person including director, secretary and others[CASE NUMBER] Instead of the nominee, the petitioner has been prosecuted in the capacity of a partner of the firm and that too without any specific averment as aforementioned[CASE NUMBER] On account of the mistake of the advocate of the trail Court, by not highlighting the fact of nomination during trial, the petitioner should not be penalized[CASE NUMBER] Causing delay in the trial cannot be a ground for rejecting of such an application[CASE NUMBER] In support of all his contentions, he has cited following judgments/orders[CASE NUMBER]
1[CASE NUMBER] [PRECEDENT][CASE NUMBER] [CASE NUMBER]
2[CASE NUMBER] [PRECEDENT][CASE NUMBER] [CASE NUMBER]
3[CASE NUMBER] [PRECEDENT][CASE NUMBER]
4[CASE NUMBER] [PRECEDENT]
5[CASE NUMBER] Order passed by this Court in [PRECEDENT] decided on 6[CASE NUMBER]10[CASE NUMBER]06[CASE NUMBER]
4[CASE NUMBER] Shri [ENTITY], for the State, while drawing attention at paragraph 8 of the complaint and paragraphs 2,4 and 30 of the judgment dt[CASE NUMBER]23rd November 2005 passed by C[CASE NUMBER]J[CASE NUMBER]M[CASE NUMBER], Sheopur in [CASE NUMBER] has submitted that the ghee in question was purchased through a bill from the firm of the petitioner[CASE NUMBER] During trial, this fact was not disclosed by him that some nominee has been nominated and acknowledged by the Authority[CASE NUMBER] He has further submitted that as provided by [SECTION] of the Act, nominee as well as the director both can be prosecuted[CASE NUMBER] In support, he has drawn attention at [PRECEDENT][CASE NUMBER] [CASE NUMBER]
5[CASE NUMBER] To appreciate the contentions of the parties, perusal of the relevant provisions of [SECTION] of the Act are required, which are as under:
17[CASE NUMBER] Offences by companies[CASE NUMBER]-(1) Where an offence under this Act has been committed by a company(a)(i)the person, if any, who has been nominated under subsection (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or
(ii) where no person has been so nominated, 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; and
(b) 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 provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence[CASE NUMBER]
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Authority in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated[CASE NUMBER]
Explanation & (3)
(4) Notwithstanding anything contained in the foregoing sub-sections, 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, not being a person nominated under Sub-section (2) 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[CASE NUMBER]
Explanation[CASE NUMBER]-For the purposes of this section
(a) "company" means anybody corporate and includes a firm or other association of individuals;
(b) "director" in relation to a firm, means a partner in the firm; and
(c) "manager" in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it[CASE NUMBER]
6[CASE NUMBER] On perusal of the aforementioned provisions, it is very clear that the provisions of [SECTION] of the Act are applicable to companies as well as to the firms[CASE NUMBER] In case of nomination, only a nominee alone with the company/firm is required to be prosecuted[CASE NUMBER] But in exceptional cases, directors of a company or partners of a firm or the other persons related to these concerns, can also be prosecuted, if the alleged offence appears to have been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, partner etc[CASE NUMBER] The words mentioned in Sub-section (4)-' shall also be deemed to be guilty' indicate that nominee and the company/firm will be primarily prosecuted, but along with them in such cases director, partner or other persons related to the company/firm can also be prosecuted[CASE NUMBER] These provisions do not provide that in case a nominee is in existence, then excluding the nominee, a director or a partner or the other office bearer related to the company/firm can only be prosecuted[CASE NUMBER] For prosecuting a director or a partner, as the case may be, along with a nominee and company/firm, one condition, however, is required that specific averments have been mentioned in the complaint by the complainant with regard to that director or partner or other related responsible person, that the alleged act has been committed with the consent or connivance of, or is attributable to any neglect on his part[CASE NUMBER] In absence of such specific averments, he can not be prosecuted[CASE NUMBER] In case, a nominee has not been duly appointed then, the provision of [SECTION] and [SECTION] of the Act will be applicable[CASE NUMBER] As this contingency is not available in this case, no observation is required with regard to it, at this stage[CASE NUMBER]
7[CASE NUMBER] In the case of [PRECEDENT] (supra) in para-4 Hon'ble Apex Court has explained the scheme of [SECTION] in the following words:
para-4 The scheme of [SECTION] is, therefore, clear that the cases where a person has been nominated under [SECTION], he alone can be proceeded against and punished for the crime in question[CASE NUMBER] It is only where no such person has been nominated, that every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of its business can be proceeded against and punished[CASE NUMBER]" "It is crystal clear from the scheme of [SECTION] that where a company has committed an offence under the Act, the person nominated under Sub-section (2) to be in charge of, and responsible to, the company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent/ connivance/negligence of any other Director, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for the commission of the said offence[CASE NUMBER] It is only where no person has been nominated under [SECTION] that every person, who at the time of the commission of the offence was in charge of and was responsible to the company for the conduct of its business can be proceeded against and punished under the law[CASE NUMBER]
In this case of [PRECEDENT] (supra) the nomination was disputed, hence, while remanding the case to the trial court the Hon'ble Apex Court has directed in para-12, that if the Magistrate comes to the conclusion that the nomination forms has been acknowledged by the competent Authority, he shall drop the proceeding against the Director of the company other then the company and the nominated persons[CASE NUMBER] In another case of [PRECEDENT] (supra) the Hon'ble Apex Court in para-15 has observed that:
15[CASE NUMBER] So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act[CASE NUMBER] So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also, be vicariously liable[CASE NUMBER] In these circumstances, therefore, we find ourselves in complete 8 agreement with the argument of the High Court that no case against the Directors (accused 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against, them were rightly quashed[CASE NUMBER]
8[CASE NUMBER] Similar view has been taken by another Bench of this Court in the case of [PRECEDENT] (supra)[CASE NUMBER] The observation in para-5 of the order of this Court being relevant goes as under:
The initiation of criminal proceedings against the petitioner for and on behalf of Hindustan Lever Limited was not justified[CASE NUMBER] In any case, the criminal proceedings should have been initiated against the nominated person i[CASE NUMBER]e[CASE NUMBER] [ENTITY][CASE NUMBER] The continuance of the criminal proceedings against the petitioner, under the circumstances, would amount to abuse of the process of the court[CASE NUMBER]
In another case of [ENTITY] (supra) another Bench of this Court has observed in last five lines of para-3 that"even otherwise, the Manager, (Production-Quality Control and Marketing) alone can be said to be the person responsible for breach of provisions of law and rule relating to [ACT][CASE NUMBER] Petitioners [ENTITY] and [ENTITY] being Chairman and Vice-Chairman of the company cannot be said to be responsible for Production-Quality Control and Marketing of the Company[CASE NUMBER]
9[CASE NUMBER] In view of the above, the view expressed in para-6 hereinabove appears settled by various pronouncements of the Apex Court as well as by this Court[CASE NUMBER] The contention on behalf of the State, that this information has been given to the court on behalf of the petitioner/accused at a very late stage of appeal and the petitioner could have informed the Food Inspector at the time of collecting the sample or filing of the complaint and even during trial he could have informed the trial court[CASE NUMBER] In this regard, this observation will not be an exaggeration that in such criminal trials such expectation from the accused can not be extended to this extent, that at this fault on the part of an accused he is to be penalized for facing the trial or for serving the sentence for which, legally he is not liable[CASE NUMBER] In such cases, the Food Inspector/complainant can not escape from his liability to file the complaint against a proper accused after due care and search made by him before trial[CASE NUMBER] The Food Inspector can very well be expected to be conversant with the provisions of [SECTION] of the Act[CASE NUMBER] In present case, he was prosecuting a partner of the firm[CASE NUMBER] It was his duty to verify from the office of the Authority and if required also from the petitioner/accused with regard to this fact of nomination[CASE NUMBER] This fact is very much related with the office of the Authority to which he is sub-ordinate[CASE NUMBER] He could have very well obtained this information from its office[CASE NUMBER] As highlighted in the case of [PRECEDENT], this Court has observed-"with regard to the second contention, it is not a duty of the accused to mention that who is the real person to be prosecuted[CASE NUMBER] It is the responsibility of the prosecution to enquire/investigate and prosecute the real person[CASE NUMBER]"
10[CASE NUMBER] For appreciating next contention raised on behalf of the State and also on the basis of the same, the learned Judge has rejected the application, that in case of acceptance of application the trial will start at its initial stage, the provision of [SECTION] [ACT] are required to be seen, which goes as under:
391[CASE NUMBER]Appellate Court may take further evidence or direct it to be taken[CASE NUMBER]-(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate[CASE NUMBER]
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal[CASE NUMBER]
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken[CASE NUMBER]
(4) The taking of evidence under this section shall be subject to the provisions of [SECTION], as if it were an inquiry[CASE NUMBER]
On perusal, it appears that if the court thinks necessary, the additional evidence can be taken at the appellate stage[CASE NUMBER] Considering the aforementioned status of the case in which the prosecution of the petitioner prima faciely appears against the provisions of law, it appears necessary to rectify the mistake even at the appellate stage[CASE NUMBER] On the ground of delay, such prayer cannot be rejected[CASE NUMBER] As observed by the Apex Court in the case of [PRECEDENT] (supra), relevant observation of the court in para-5 goes as under:
The High Court rejected the prayer on the ground that it did not consider it "expedient in the interests of justice to open a new vista of evidence" in view of the fact that the offence had taken place six years back[CASE NUMBER] The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day[CASE NUMBER]
11[CASE NUMBER] The intention of the law can never be to prosecute and punish such a person who as per the provisions of law ought not to be prosecuted and punished[CASE NUMBER] On perusal of the complaint in both the cases, it is abundantly clear that no required averment containing the allegation against the petitioner who is a partner in the firm has been mentioned[CASE NUMBER] Nominee has not been prosecuted, even firm has also not been prosecuted[CASE NUMBER] In such circumstances, it was obligatory for the learned Judge to consider all these situations and to allow the applications, despite causing delay[CASE NUMBER] In my considered opinion, the learned Judge has committed an error in rejecting the applications[CASE NUMBER] It appears an abuse of the process of the Court[CASE NUMBER] After allowing the applications, cases are required to be remanded for further consideration by the learned Judge in accordance with law including the provision of [SECTION] of [ACT]
12[CASE NUMBER] Consequently, the petitions are allowed[CASE NUMBER] The impugned orders dated 7/1/2008 passed by learned Judge in [CASE NUMBER] are set aside[CASE NUMBER] In both the Criminal Appeals, the applications filed on behalf of the petitioner under [SECTION] [ACT] are allowed[CASE NUMBER] It is directed that the learned Judge will take further steps in the appeals in accordance with the provisions of [SECTION] [ACT]