Jharkhand High Court
Jyoti Prakash Sinha @ Jyoty Prakash ... vs The State Of Jharkhand on 21 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2485 of 2024
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Jyoti Prakash Sinha @ Jyoty Prakash Sinha, aged about 52 years, son
of Late R.P. Sinha, resident of Flat No.202, Anjali Apartment,
Harihar Singh Road, Morabadi, P.O. Morabadi, P.S. Bariyatu,
District Ranchi (Jharkhand) ... Petitioner
Versus
1. The State of Jharkhand
2. Jharkhand State Pollution Control Board having its head office at
Nagar- Prasashan Bhawan, HEC, Dhurwa, P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi represented by Gopal Kumar, son of
name not known to the petitioner, Regional Officer, Jharkhand State
Pollution Control Board, having its office at Regional Office, C.T.I.
Colony, E-1, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-
Ranchi ... Opposite Parties
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For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Sagar Kumar, Advocate
Mr. Ajay Kr. Sah, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
For the O.P. No.2 : Mrs. Richa Sanchita, Advocate
Ms. Risheeta Singh, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the Bhartiya Nagrik Suraksha
Sanhita, 2023, with a prayer to quash and set aside the entire criminal
proceedings in connection with Complaint Case No.10353 of 2022 including the
order dated 16.11.2022 passed by the learned Additional Chief Judicial
Magistrate, Ranchi whereby and where under the learned court below has
found prima facie case against the employer of the petitioner namely M/s
Assotech Sun Growth Abode LLP and cited that the petitioner represents his
employer being the A.G.M. (Finance), for having committed the offences
punishable under Sections 15, 16 and 19 of the Environment (Protection) Act,
1986.
3. At the outset, the learned counsel for the petitioner submits that the
petitioner abandons all the prayers made in this criminal miscellaneous petition
and modifies his prayer to the effect that the said order dated 16.11.2022 passed
in Complaint Case No.10353 of 2022 be modified to the extent of substituting
the petitioner as the representative of his employer with the person to be
nominated by his employer in terms of Section 305 of the Cr.P.C.
4. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Standard Chartered Bank &
Others vs. Directorate of Enforcement & Others reported in (2005) 4 SCC 530
paragraph-32 of which reads as under:-
"32. We hold that there is no immunity to the companies from
prosecution merely because the prosecution is in respect of offences
for which the punishment prescribed is mandatory imprisonment
(sic and fine). We overrule the views expressed by the majority
in Velliappa Textiles [(2003) 11 SCC 405 : 2004 SCC (Cri) 1214]
on this point and answer the reference accordingly. Various other
contentions have been urged in all appeals, including this appeal,
they be posted for hearing before an appropriate Bench."
and submits that therein it has been held by the majority view that there
is no immunity to the companies from prosecution merely because the
prosecution is in respect of offences for which the punishment prescribed is
mandatory imprisonment (sic and fine).
5. Learned counsel for the petitioner next relies upon the judgment of the
Hon'ble Patna High Court in the case of D. Bhattacharya vs. The State of Bihar
& Others reported in MANU/BH/0328/1989 paragraphs-6 and 7 of which read
as under:-
"6. The learned Counsel for the Petitioner has drawn my attention
to Sub-clause 2 and 3 of Section 305 of the Code of Criminal
Procedure which read as follows:
(2) Where a corporation is the accused person or one of the
accused persons in an inquiry or trial, it may appoint a
representative for the purpose of the inquiry or trial and such
appointment need not be under the seal of the corporation.
(3) Where a representative of a corporation appears, any
requirement of this Code that anything shall be done in the
presence of the accused or shall be read or stated or explained
to the accused shall be construed as a requirement that thing
shall be done in the presence of the representative or read or
stated or explained to the representative, and any
requirement that the accused shall be examined shall be
construed as a requirement that the representative shall be
examined.
From a bare perusal of these two clauses of Section 305 of the Code
of Criminal Procedure it is apparent that when a company or
corporation is being prosecuted in a criminal case in that case
processes may be issued against the company and company be given
a chance to nominate a representative on its behalf to face the trial
on behalf of the company.
7. From the order of the cognizance it appears that opportunity has
not been given to the aforesaid company. In that view of the matter,
it is directed that prosecution may be launched against the company
but an opportunity should be given to the aforesaid company to
nominate a representative on its behalf and take any proper step
thereafter in accordance with law."
and submits that Section 305 of the Code of Criminal Procedure makes it
crystal clear that when inter alia a company is being prosecuted in a criminal
case, in that case, processes may be issued against the company and company
be given a chance to nominate a representative on its behalf to face the trial on
behalf of the company. The learned counsel for the petitioner further
undertakes on behalf of the petitioner that the petitioner will file an affidavit
before the court of learned Additional Chief Judicial Magistrate, Ranchi
mentioning therein the person nominated by the company to represent it on
behalf of the company and also furnishing the name of the Board of Directors
of the Company and the address of its registered office within six weeks.
6. In support of his contention, the learned counsel for the petitioner
further relies upon the judgment of the Hon'ble Bombay High Court in the case
of Sanjeev S. Malhotra vs. The State of Maharashtra & Another passed in
Criminal Writ Petition No.4942 of 2019 dated 14.01.2020 paragraph-11 of
which reads as under:-
"11. It is thus, clear that for prosecuting a Company as accused, the
Court is required to issue process against the company and then
becomes choice of the accused Company to nominate its
representative to answer the Charge. The corporation by itself is a
distinct legal entity than its director. Therefore, the impugned order
directing the petitioner/accused no.2 to answer the charge levelled
against the accused Company by signing the plea on behalf of the
company can not be sustained. Hence, the order.
and submits that therein the said principle of law was reiterated by the
Hon'ble Bombay High Court.
7. It is lastly submitted that the prayer of the petitioner, as prayed for in the
instant Cr.M.P., be allowed.
8. Learned Spl.P.P appearing for the State and the learned counsel for the
opposite party No.2 on the other hand vehemently oppose the prayer of the
petitioner and submit that the petitioner is the representative of his employer,
so, no illegality has been committed by the learned trial court in mentioning the
petitioner as such in the said order dated 16.11.2022. Hence, it is submitted that
this Cr.M.P., being without any merit, be dismissed.
9. Having heard the rival submissions made at the Bar and after going
through materials available in the record, it is pertinent to mention here that
Section 305 of the Cr.P.C. mandates that in case a company is being prosecuted
in a criminal case; in that case processes may be issued against the company
and company be given a chance to nominate a representative on its behalf to
face the trial. From the order taking cognizance, it appear that opportunity has
not been given to the company in this respect.
10. In that view of the matter, the impugned order issuing processes against
the employer of the petitioner namely M/s Assotech Sun Growth Abode LLP
represented by the petitioner shall stand modified; subject to the petitioner
submitting an affidavit before the court of learned Additional Chief Judicial
Magistrate, Ranchi mentioning therein the person nominated by the company
to represent it on behalf of the company and also furnishing the name of the
Board of Directors of the Company and the address of its registered office
within six weeks, failing which this conditional order shall not be given effect
to and this criminal miscellaneous petition shall stand dismissed. In case the
petitioner, furnishes the name of the person nominated by the company to
represent it on behalf of the company, in this criminal case, the learned
Additional Chief Judicial Magistrate, Ranchi is directed to modify the said
order dated 16.11.2022 by substituting the name of the petitioner in the said
order with the person nominated by the company with that of the petitioner.
11. Accordingly, this Cr.M.P. stands disposed of.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st of October, 2024
AFR/ Animesh
