Jharkhand High Court
Kushal Biswas vs The State Of Jharkhand on 30 November, 2022
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 397 of 2018
Kushal Biswas ..... ... Petitioner
Versus
The State of Jharkhand ..... ... Opposite Party
with
Cr.M.P. No. 936 of 2016
1. Umang Kejriwal
2. Rama Shankar Singh
3. Chandra Prakash Pandey
4. Vijai Shankar Tiwari
5. Randheer Kumar Singh
@ Randhir Singh ..... ... Petitioners
Versus
1. The State of Jharkhand through Secretary,
Forest, Environment & Climate Change,
Nepal House, Doranda, Ranchi.
2. The Authorised Officer-cum-D.F.O.,
Bokaro, Chas, Bokaro.
3. Forest Range Officer,
Chas Forest Range, Bokaro.
4. Forester, Sadar Sub-Division, Bokaro. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Pratiyush Lala, Advocate.
[in Cr.M.P. No. 397 of 2018]
: Mr. Indrajit Sinha, Advocate.
[in Cr.M.P. No. 936 of 2016]
For the State : Ms Nehala Sharmin, Spl.P.P. [in both cases]
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10/ 30.11.2022 Heard Mr. Pratiyush Lala, learned counsel appearing for the
petitioner in Cr.M.P. No. 397 of 2018, Mr. Indrajit Sinha, learned counsel
appearing for the petitioners in Cr.M.P. No. 936 of 2016 and Ms Nehala
Sharmin, learned Spl.P.P. for the State in both the cases.
2. In both these petitions, common question of fact as well as
order of taking cognizance are under challenge, that's why both the
petitions are heard together with the consent of the parties.
3. Both these petitions have been filed for quashing of the entire
criminal proceedings including the order taking cognizance dated
18.01.2016, in connection with C-3 (Forest) Case No. 13 of 2015, by
which, cognizance for the offence under Sections 41 and 42 of the Indian
Forest Act, Rule6-4 (kha) of The Jharkhand Kasta and Anya Banoparjan
Transport Rules, 2004 and Rule 2(cha) of Ara Karamshala and Vansar
Rules, 1983 has been taken against the petitioners, the case is pending in
the court of learned Chief Judicial Magistrate, Bokaro.
4. The case of the prosecution in short is that forest officers on
the strength of secret information intercepted the truck bearing
registration No. JH-09-M-4168, but the truck driver stop the truck and
fled away from the place of occurrence. The forest officers have checked
the truck and found numbers of wooden battan which has got no marka of
forest transit and on further search, forest T.P. No. 8946/0194593 dated
02.06.2005, measurement book etc were found.
On search for local witness, no one found there and as such
forest officers engaged one truck driver and taken the truck to Chas
forest office and on proper verification several irregularities were
found and no hammer was found on wooden batten and it become
clear that this wooden batten was illegally cut from the forest area
and use for transportation. The total number of wooden batten is
1237 pieces and as such case under Sections 41 and 42 of Indian
Forest Act, Rule 6-4 (kha) of The Jharkhand Kasta and Anya
Banoparjan Transport Rules, 2004 and Rule 2(cha) of Ara
Karamshala and Vansar Rules, 1983 registered. The entire
documents were forwarded to the concerned authority for the
needful.
5. Mr. Indrajit Sinha, learned counsel appearing for the
petitioners in Cr.M.P. No. 936 of 2016 submits that the truck, bearing
registration No. JH-09-M-4168 was searched by the forest officials,
wherein the wood was loaded. He submits that the allegation was made
that on 04.06.2015 at around 01.15 P.M., the Forest Range Officer, Chas
saw a truck coming towards Barmasia Check Post from the direction of
Purulia, West Bengal. He further submits that on search of the vehicle, the
transit permit No. 8946/0194593 dated 02.06.2015 and measurement list
etc. were found. He further submits that these petitioners are the
employees of the company namely M/s Electrosteel Steels Limited, as
such no vicarious liability can be fastened on these petitioners, who were
only the employees of the company. He further submits that the saw
woods were being transported by Laxmi Narayan Transport, Chandrakona
Road, Santinopara, Paschim Midnapur, W.B. through Truck bearing
registration No. JH-09-M-4168 for the owner Indian Timber Supply
Agency, in that view of the matter, the petitioners have not been liable for
the aforesaid offence. He further submits that the materials as evident
from the Tax Invoice No. 15-16/22 dated 02.06.2015 in favour of M/s
Indian Chamber Supply Agency Kolkata, were of specific dimensions,
based on the requisition / order from M/s Electrosteel Steels Limited,
being as safety items for use in different departments of the Steel Plant,
including its Ductile Iron (D.I.) Plant. He further submits that the
petitioners are only the staffs of the company, however, they have
unnecessarily been made accused in absence of the company. He also
submits that the company is not made an accused and in absence of the
company, the petitioners, who are the employees of the company cannot
be prosecuted.
6. To buttress his arguments, he relied in the case of Sunil
Bharti Mittal Versus CBI, reported in (215) 4 SCC 609, wherein the
Hon'ble Supreme Court in Paras-42 to 43 held as follows:-
"42. No doubt, a corporate entity is an artificial
person which acts through its officers,
Directors, Managing Director, Chairman, etc. If
such a company commits an offence involving
mens rea, it would normally be the intent and
action of that individual who would act on
behalf of the company. It would be more so,
when the criminal act is that of conspiracy.
However, at the same time, it is the cardinal
principle of criminal jurisprudence that there is
no vicarious liability unless the statute
specifically provides so.
43. Thus, an individual who has perpetrated the
commission of an offence on behalf of a
company can be made an accused, along with
the company, if there is sufficient evidence of
his active role coupled with criminal intent.
Second situation in which he can be implicated
is in those cases where the statutory regime
itself attracts the doctrine of vicarious liability,
by specifically incorporating such a provision.
44. When the company is the offender, vicarious
liability of the Directors cannot be imputed
automatically, in the absence of any statutory
provision to this effect. One such example is
Section 141 of the Negotiable Instruments Act,
1881. In AneetaHada [AneetaHada v. Godfather
Travels & Tours (P) Ltd., (2012) 5 SCC 661 :
(2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri)
241] , the Court noted that if a group of persons
that guide the business of the company have the
criminal intent, that would be imputed to the
body corporate and it is in this backdrop,
Section 141 of the Negotiable Instruments Act
has to be understood. Such a position is,
therefore, because of statutory intendment
making it a deeming fiction. Here also, the
principle of "alter ego", was applied only in one
direction, namely, where a group of persons that
guide the business had criminal intent, that is to
be imputed to the body corporate and not the
vice versa. Otherwise, there has to be a specific
act attributed to the Director or any other
person allegedly in control and management of
the company, to the effect that such a person
was responsible for the acts committed by or on
behalf of the company."
7. Learned counsel appearing for the petitioners further submits
that the Forest Department has lodged 44 cases against the company,
wherein the majority of cases have been quashed by this Hon'ble Court and
some of the cases gone up to the Hon'ble Supreme Court, wherein the order
of the High Court has been affirmed. On these grounds, he submits that the
entire criminal proceedings so far as these petitioners are concerned are bad
in law and the same are liable to be quashed.
8. Mr. Pratiyush Lala, learned counsel appearing for the
petitioner in Cr.M.P. No. 397 of 2018 submits that the petitioner was
entrusted with the work of supply of wood and he is one of the partner of
the Indian Timber Supplier Agency. He submits that the petitioner was
transporting the wood in question on valid transit pass, issued by the Forest
Department of West Bengal, which has been brought on record as one of
the annexure at Page-22. He further submits that the said pass was issued
for 1237 pieces of wooden batten, however, allegation is made that the
petitioner was carrying 30 less pieces in the said truck. He further submits
that the said transit pass was valid from 02.06.2015 (4:35 PM) to
04.06.2015 (6.00 P.M.), however, the vehicle in question was seized on
04.06.2015 at 01:15 P.M., as such, on the date of seizure, the vehicle in
question was having the valid transit pass. He further submits that in light
of Section 68 of the Forest Act, the case is compoundable in nature.
9. To buttress his argument, he relied in the case of Rakesh @
Tattu Versus State of Madhya Pradesh & Ors., reported in (2020) 17 SCC
190, wherein the Hon'ble Supreme Court in para-7 held as follows:-
"7. In our opinion, the competent authority in
the present case has not considered the matter in
proper perspective. It has failed to give full
effect to the provisions of Section 68 of the Act.
In that, the Authority proceeds merely on the
basis that the appellant has admitted his guilt
and the use of subject vehicle in the commission
of offence. As aforesaid, that by itself is not
enough. As a matter of fact, ordinarily, when the
accused takes recourse to the remedy of
compounding the offence, it presupposes that
he has admitted the commission of stated offence
or about the use of seized vehicle in the
commission of the offence. Only then he would
apply for compounding the offence. Counsel for
the appellant justly submits that the exercise of
power, though discretionary, has to be judicially
exercised. While doing so, the competent
authority is obliged to reckon tangible factors
such as gravity of offence as expounded in
Govind Singh (supra) or that the vehicle has
been used for commission of specified offence
even in the past etc. In the present case,
however, the only factor weighed with the
authority is that the appellant has admitted the
commission of offence. In other words, the
authority has not exercised its discretion in
judicious manner."
10. Relying on this judgment, learned counsel appearing for the
petitioner submits that the entire criminal proceeding may kindly be
quashed.
11. Ms. Nehala Sharmin, learned Spl.P.P. appearing for the State
in both the cases submits that the State has filed the counter affidavit,
wherein it has been disclosed that the forest guard, on the basis of secret
information and during the course of patrolling under the leadership of
R.F.O., Chas, they intercepted truck at Baramasia Checkpost which was
coming from Purulia Side and during course of search, it was found that
sawn woods were loaded on the said truck, bearing registration No. JH-09-
M-4168. She submits that during course of search, it was found that 1207
numbers of sawn woods were seized, measuring 723.879 cubic feet or
20.497 cubic meter, whereas, as per transit permit, the sawn timbers were
noted as 1237 numbers and its volume was 21.550 cubic meter, thus there is
shortage of 30 sawn woods. She further submits that no hammer mark of
the Forest Department was there on the said transit permit. She further
submits that the learned court has rightly taken the cognizance against the
petitioners.
12. In view of the above facts and considering the submissions of
the parties, the court has gone through the materials available on record and
finds that the wooden batten were loaded on the truck, being registration
No. JH-09-M-4168, however, on search, 30 pieces of less wood was found.
The transit permit is at page-22 of Cr.M.P. No. 397 of 2018, which suggests
that the said wooden batten were being transported on the basis of valid
transit pass. The said transit permit shows that 1237 pieces of wood were
transported, however, it has been alleged that 30 less pieces were found in
the said truck. Admittedly the wood in question was being transported to
M/s Electrosteel Steels Limited for the purpose of industrial production.
13. The petitioners in Cr.M.P. No. 936 of 2016 are the employees
of said M/s Electrosteel Steels Limited and the vicarious liability cannot be
fastened upon them, as the company is not made party in the complaint and
in absence of the company as party, the vicarious liability cannot be
fastened upon the employees of the said company, in view of the judgment
of Hon'ble Supreme Court in the case of Sunil Bharti Mittal (Supra).
14. Looking into the judgment in the case of Rakesh @ Tattu
(Supra) wherein Section 68 of the Forest Act was dealt with and also
considering that the wooden batten were being transported on the valid
transit pass and more than 44 cases have been lodged against M/s
Electrosteel Steels Limited by the Forest Department and majority of them
were quashed by this Court and some of them have gone up to the Hon'ble
Supreme Court, wherein the orders of this Court have been affirmed, the
court is inclined to interfere with these matters.
15. Accordingly, the entire criminal proceedings including the
order taking cognizance dated 18.01.2016, in connection with C-3 (Forest)
Case No. 13 of 2015, by which, cognizance for the offence under Sections
41 and 42 of the Indian Forest Act, Rule6-4 (kha) of The Jharkhand Kasta
and Anya Banoparjan Transport Rules, 2004 and Rule 2(cha) of Ara
Karamshala and Vansar Rules, 1983, have been taken against the
petitioners, in both the cases, pending in the court of learned Chief Judicial
Magistrate, Bokaro, are hereby, quashed and set aside.
16. Both these petitions are allowed and disposed of.
17. Interim orders, granted earlier, in respective cases stand
vacated.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
