Deepak Bajaj, Secretary, Sindu ... vs The State Of Mah At Instance Of D.R. ...
2017 Latest Caselaw 7761 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
              Criminal Application [APL] No. 360 of 2011


 01. Deepak Bajaj,
     aged about 46 years,
     occupation - Secretary,
     Sindhu Education Society,
     Jaripatka, Nagpur,
     resident of K. C. Bajaj Marg, Jaripatka,
     Nagpur-440 014.

 02. Smt. Veena D. Bajaj,
     President,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 03. Tekchand Gyanchandani,
     Treasurer,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 04. Pratap Bajaj,
     Joint Secretary,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 05. Sureshkumar Tanwani,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 06. H. G. Rajpal,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.



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 07. Kishin L. Bajaj,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 08. Kubchand Pritmani,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 09. Smt. Jyoti Duhilani,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 10. Smt. Rajkumari Meghrajani,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 11. Smt. Sawitri Mamtani,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.

 12. Kushaldas Bajaj,
     Member,
     Sindhu Education Society,
     Jaripatka, Nagpur.                     .....           Applicants



                                Versus


 1.     The State of Maharashtra,
        at the instance of Shri D.R. Nandanwar,
        Range Forest Officer-cum-Assistant
        Wildlife Conservator,




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        Seminary Hills,
        Nagpur, having his office at
        Seminary Hills, Nagpur.

 2.     Shri Pramod Paresh Bhaghandani,
        aged about 40 years,
        resident of 201, Parvati Tower Building,
        near Indora Chowk,
        Nagpur-440 017.

        ....Intervener.

 3.     Chief Wildlife Warden
        & Chief Conservator of Forests
        [Wildlife],
        State of Maharashtra,
        Dr. Babasaheb Ambedkar Bhawan,
        Fourth & Fifth Floors,
        MECL Building,
        Seminary Hills & Campus,
        Nagpur440 001.
        ....Deleted.                              .....     Non-applicants

                                 *****
 Mr. A. A. Naik, Adv., for the applicants.

 Mr. R. S. Nayak, Addl. Public Prosecutor Non-applicant no.1.

                                    *****

                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   04th October, 2017

 ORAL JUDGMENT:

01. This application has been filed under Section 482 of the

Criminal Procedure Code, 1973 [for short, "the Code"], challenging the

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order dated 3rd June, 2011 by which the learned Judicial Magistrate

First Class, Court No.7, has issued process against the applicants

herein for the offences punishable under Sections 58 and 38-H of the

Wildlife (Protection) Act, 1972 [for short, "the said Act"].

02. The Assistant Conservator of Forests [Wildlife] on 3rd June,

2011 filed a Complaint under provisions of Sections 39, 48-A, 58 and

38-H of the said Act read with Rule 3 of the Recognition of Zoo Rules,

1992. In this Complaint, it was stated that on 5th December 1985

permission was granted to the Secretary of Sindhu Education Society,

Jaripatka, to keep specified animals in its premises. Pursuant to this

permission, the Society procured those animals and informed the

concerned Authorities on 16th March, 1985. In the complaint, it was

stated that the said animals were transported from Mumbai to Nagpur

without permission, resulting in breach of Section 48-A of the said Act.

Similarly, though the number of monkeys had increased due to

breeding, a declaration in that regard was not given, resulting in

breach of Section 39 of the said Act. Further, by recovering fees from

children, a zoo was being run without obtaining necessary permission.

As the Society was running Mahatma Gandhi High School, the entire

body of Executive Committee was responsible. Hence, according to

the complaint, the applicants were liable for being punished under

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Section 51 of the said Act.

03. The learned Judicial Magistrate, First Class, issued process

against the present applicants for the offences punishable under

Sections 58 and 38-H of the said Act. Being aggrieved, the applicants

have approached this Court challenging the said order and also for

having the said complaint quashed.

04. Shri A.A. Naik, learned counsel for the applicants, in support

of the application, made the following submissions:-

[a] The learned Magistrate could not have issued process under Section 58 of the said Act in absence of any specific allegations as to the role of each office-bearer of the Society. It was submitted that as per the Explanation to Section 58, an association of individuals would also mean a "Company" and hence specific averments against such office-bearer were necessary. Referring to paragraph 7 of the complaint, it was submitted that it had been vaguely averred that all members of the Committee were responsible for having committed the offence. In support of this submission, the learned counsel relied on the decisions in [1] Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector & another [ (2011)

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1 SCC 176], [2] GHCL Employees Stock Option Trust Vs. India Infoline Ltd. [ (2013) 4 SCC 505], and [3] Santanu Jagatbandhu Sinha & another Vs. State of Mharashtra [ 2007 (5) AIR Bom 740].

[b] The offence being alleged to have been committed under Section 58 of the said Act and process having been issued in that regard, it was necessary to array the Society [Company] as an accused. The Complaint as filed was only against the office-bearers of the Committee and the Company was not impleaded as an accused. As the offence was allegedly committed by a Company, process could not have been issued in absence of the Company being arrayed as an accused. For said purpose, the learned counsel relied on the decision in Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd. [(2012) 5 SCC 661].

[c] That, as per provisions of Section 38-H of the said Act, no zoo could be operated without being recognized by the competent Authority. Further, as per provisions of Section 2 (39) of the said Act, the place where the animals were kept could not be said to be a zoo as the animals were not kept for exhibition to the public. Hence, provisions of Section 38-H of the

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said Act were not attracted.

[d] The complaint was filed beyond the period of limitation, inasmuch as the alleged breach was with regard to the permission which was granted in the year 1985 and the subsequent permission granted in the year 1995 to release seven monkeys in the jungle. According to the learned counsel, as the offence was punishable with imprisonment for a period upto three years, the complaint was barred by limitation under Section 468 (c) of the Criminal Procedure Code, 1973. It was, thus, submitted that without considering these material aspects, the learned Magistrate issued process. Permitting the present proceedings to continue would result in abuse of the process of law resulting in unnecessary prosecution of the applicants and hence it was necessary to quash the same.

05. Shri R. S. Nayak, learned Additional Public Prosecutor for the

respondent no.1, supported the impugned order issuing process.

According to him, as the Society claimed that it was registered under

the Maharashtra Co-operative Societies Act, 1961, and the

Maharashtra Public Trusts Act, 1951, it was not a Company for the

purposes of Section 58 of the said Act. In any event, it was submitted

that necessary averments were made in paragraph 7 of the complaint

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and, therefore, process was rightly issued for the offence having been

committed by the office-bearers.

In so far as offence under Section 38-H of the said Act is

concerned, it was submitted that it would be necessary to record

evidence in order to establish as to whether the animals were being

displayed by way of exhibition to public. As the students and their

parents were permitted to view the animals, the establishment of the

applicants was a zoo and, therefore, provisions of Section 38-H of the

said Act were attracted. There was no permission granted for running

the zoo.

The complaint was filed within limitation in view of the fact

that the inspection had been carried out on 9th January, 2011 and after

noticing various breaches, the complaint was filed on 3rd June, 2011.

It was, thus, submitted that the learned Magistrate rightly took

cognizance of the complaint and issued process against the applicants.

06. Though the respondent no.2 was permitted to intervene in

the proceedings, there was no appearance on his behalf on 3rd

October, 2017. Today also, there is no appearance on his behalf.

07. With the assistance of the learned counsel for the parties, I

have perused the material placed on record and I have given due

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consideration to the respective submissions.

08. Pursuant to the complaint filed on behalf of the respondent

no.1, the learned Magistrate issued process under Sections 58 and 38-

H of the said Act. Section 58 of the said Act refers to offences by

Companies and where such offence is committed by a Company, every

person, who, at the time of offence, was in charge and was responsible

to the Company for the conduct of its business as well as the Company

would be deemed to be guilty of the offence and shall be liable to be

proceeded against and punished accordingly. The Explanation to

Section 58 refers to the expression "Company" to mean any body

corporate and includes a firm or other association of individuals. The

process having been issued under Section 58 of the said Act, it will

have to be examined whether the legal requirements that are

necessary to be complied with while proceeding against a Company for

commission of an offence have been met. Section 58 (1) of the said

Act reads thus:-

"58. Offences by companies.- (1) Where an offence against this Act has been committed by 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.

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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."

Explanation (a) to the said Section reads thus:-

"Explanation.- For the purposes of this section,-

                       (a)    "company" means any body corporate and
                       includes    a     firm or other association of
                       individuals; ..."

09. The aforesaid provisions are in pari materia with the

provisions of Section 141 (1) of the Negotiable Instruments Act, 1881.

In Aneeta Hada [supra], the Honourable Supreme Court while

considering the said provisions has held that when the Company can

be prosecuted, only then can the persons mentioned in the other

categories be held vicariously liable. In pargraphs 58 and 59 of the

judgment, it was observed thus:

"58 ................................we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own

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respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag- net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. ........"

Proceedings therein were quashed on the ground that the

same were initiated against the Directors and in absence of the

Company being arrayed as an accused. Similar position arises in the

case in hand, inasmuch as the accused are merely stated to be

members of the Executive Committee and the "Company" has not

been arrayed as a accused. The complaint having been filed alleging

offence committed by the Company and process having been issued

under Section 58 of the said Act, absence of the Company as an

accused is fatal to the complaint itself.

10. In Pepsico India Holdings Pvt. Ltd . [supra], it was held that

in a complaint against a Company and its Directors, the complainant

has to indicate in the complaint itself as to whether the Directors

concerned were either in charge of or responsible to the Company for

its day-to-day management or whether they were responsible to the

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Company for the conduct of its business. A mere statement that a

person was a Director of the Company against whom allegations were

made was not sufficient to make such Director liable in the absence of

any specific allegations regarding his role in the management of the

Company.

The aforesaid legal position does not admit of any doubt

that it has to be specifically averred in the complaint itself as to the

role of the persons accused so as to hold them liable. Perusal of the

complaint and especially paragraph 7 thereof indicates that what has

been averred is that the Society in question was running Mahatma

Gandhi High School and, therefore, as per the bye-laws of co-operative

societies, the entire Manging Committee was responsible for the illegal

acts. These are the only averments made in the complaint. The same,

therefore, fall short of the averments that are required to be made as

per the aforesaid law laid down by the Honourable Supreme Court.

11. In so far as the challenge to the issuance of process with

regard to offence under Section 38-H of the said Act is concerned, I

find that it is not necessary to dwell much on this aspect as the

complaint itself has been found to be defective in absence of the

Company being arrayed as an accused. However, I find that the

expression "zoo" has been defined under Section 2 (39) of the said Act

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and the question whether the captive animals were kept for exhibition

to the public or not would be a matter to be considered on the basis of

evidence on record. In other words, at this stage, a finding cannot be

recorded that the provisions of Section 38-H of the said Act were not at

all attracted on the ground that the animals were kept in the school for

the benefit of the students. However, as the complaint itself has been

found to be defective in the absence of the Company being arrayed as

an accused, I do not find it necessary to record any finding with

regard to the challenge to the issuance of process under Section 38H

of the Act .

12. In so far as the challenge on the ground that the complaint

was filed beyond the period of limitation is concerned, on perusal of

the complaint it is seen that though necessary permissions had been

sought and granted in the year 1985, the establishment was inspected

on 9th January, 2011. After noticing certain breaches, the complaint

came to be filed on 3rd June, 2011. The complaint is based on the

inspection conducted on 9th January, 2011. The provisions of Section

469 of the Code permit the limitation to commence when the offence

comes to the knowledge of such person or police officer. I, therefore,

find that the complaint was lodged within the period of limitation as

prescribed by Section 468 (2) (c) of the Code.

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13. Thus, in view of the aforesaid discussion, I find that the

applicants have made out a case for quashing the complaint.

Permitting the same to continue would amount to abuse of process of

law. No fruitful purpose would be served in permitting the proceedings

to continue especially when the "company" has not been arrayed as an

accused and the offence in question has been stated to have been

committed by the "company." Hence, the application is allowed in

terms of Prayer Clause [B]. Accordingly, the proceedings in Summary

Criminal Case No. 13392 of 2011 stand quashed.

14. Application is allowed in aforesaid terms. No costs.

Judge

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