The High Court of Jharkhand set aside the order taking cognizance against the petitioner, the Director of the concerned company after the commission of evasion and theft of royalty appeared to have occurred and held that if the materials disclose specific act on the part of a Director which amounts to a criminal offence, he cannot escape criminal prosecution, however where the Director is sought to be made vicariously liable for the act of the Company, cognizance cannot be taken solely on the Director without making the Company as an accused.

Brief Facts:

The District Mining Officer along with police personnel during the inspection of the storage place examined the Mining Register and found that the available stock of sand was recorded in the Register as 91,250 cubic ft. but on physical verification, it was found approximately only 80,000 cubic ft. and a shortfall of 11,250 cubic ft. of sand was found in the Mining Register after which an FIR was registered against the petitioner, the Director under Sections 379, 420, 120B of the Indian Penal Code, Section 21 of Mines and Mineral (Development and Regulation) Act, 1957 and Rule 54 of Jharkhand Minor Mineral Concession Rules, 2004 (Amendment 2017), Rule 13 of Jharkhand Mineral (Prohibition of Illegal Mining Transport and Storage) and the cognizance was to take. The present petition has been filed against this order.

Contentions of the Petitioner:

The learned counsel appearing on behalf of the petitioner contended that no physical verification report or report pertaining to volumetric measurement was undertaken by the raiding party during the course of the inspection, no signatures have been obtained of the people present there and the entire allegation of less quantity of sand being found in the sand depot, has been levelled on mere eye estimation. It was further argued that the case was of evasion of royalty against the company however cognizance has been taken for an offence under the IPC against the petitioner who is the Director of the said Company without any specific role attributed to him and the cognizance is solely against the petitioner without impleading the Company, which is not permissible.

Contentions of the Respondent:

The learned counsel appearing on behalf of the state contended that the chargesheet had been submitted after the investigation and cognizance has been taken on finding sufficient material under Sections 379, 420 and 120B of the IPC along with Rule 54 of Jharkhand Minor Mineral Concession Rules, 2004 and Rule 13 of Jharkhand Mineral (Prohibition of Illegal Mining Transportation Store) Rule and on surprise inspection, approximately 11250 cubic ft. of sand was to be found to be deficit against the stock entry which was 91250 cubic ft.

Observations of the court:

The court stated that at the stage of cognizance, the probative value of the material collected during investigation is not to be scrutinized and the law does not need to be reiterated that at this stage only a prima facie case is required to be made out against the accused. The court stated that constructive liability in criminal law means the liability of a person for an offence that he has not actually committed and an act committed by another person will be attributed to the accused if such an act is done in furtherance of common intention or in the prosecution of a common object that must not be confused with vicarious liability.

The court further differentiated between vicarious liability and constructive liability and stated that criminal liability can be direct or may be constructive or vicarious liability as the case may be and it is a cardinal principle of criminal jurisprudence that where there are allegations of vicarious liability, then there has to be sufficient evidence of the active and specific role of the Director or the person allegedly in control of management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.

It was further stated that if the materials disclose a specific act on the part of a Director that amounts to a criminal offence, he cannot escape criminal prosecution on the plea that the Company has not been made accused, however, where the Director is sought to be made vicariously liable for the act of the Company, cognizance cannot be taken solely on the Director without making the Company as an accused.

The court stated that in the present case, the main accused in the FIR is the Company and a chargesheet has been submitted against the Petitioner as he was the Director of the said Company although cognizance has been taken against the petitioner, it has not been taken against the Company which is impermissible in view of decision in Sushil Sethi v. State of Arunachal Pradesh and in order to make out a case of vicarious liability against the petitioner, there should be specific role that can be attributed to him.

The decision of the Court:

The court disposed of the petition and set aside the order taking cognizance as the same was not sustainable in law.

Case Title: Amarendra Tiwari @ Amrendra Tiwary vs. The State of Jharkhand

Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary

Case No.: Cr.M.P. No. 2505 of 2022

Advocate for the Petitioner: Mr. Sumeet Gadodia

Advocate for the Respondent: Mr. Manoj Kumar

Read Judgment @LatestLaws.com

Picture Source :

 
Kritika