Mr.Aditya Narayan vs The State
2022 Latest Caselaw 3448 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 02ND DAY OF MARCH, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.7740 OF 2020

                            C/W.

              CRIMINAL PETITION No.7744 OF 2020

IN CRIMINAL PETITION No.7740 OF 2020

BETWEEN:

1.   MR.ADITYA NARAYAN
     AGED 68 YEARS
     RESIDING AT B-20/2,
     DLF CITY PHASE I
     GURGAON
     HARYANA - 122 002.

2.   MS. KALPANA JAISINGH MORPARIA
     AGED 71 YEARS
     RESIDING AT A52,
     AHUJA TOWERS CHS
     RAJABHAU DESAI MARG
     PRABHADEVI
     MUMBAI - 400 025.

3.   MR. DEVOPAM NARENDRA BAJPAI
     AGED ABOUT 55 YEARS
     RESIDING AT 805/806,
     MEGHDOOT TOWER,
     A WING, LOKHANDWALA
     BACK ROAD, OPP.JOGGING TRACK,
     LOKHANDWALA, AZAD NAGAR,
                            2



     ANDHERI WEST
     MUMBAI - 400 053.

4.   MR. OM PRAKASH BHATT
     AGED ABOUT 69 YEARS
     RESIDING AT FLAT NO.3, SEAGULL
     CARMICHAEL ROAD,
     MUMBAI - 400 026.

5.   MR. LEO PURI
     AGED 59 YEARS
     RESIDING AT CONDOMINIUM
     37 D-L, JAGAMOHANDAS MARG
     NAPEAN SEAROAD,
     MUMBAI - 400 037

     REP. BY AUTHORIZED
     REPRESENTATIVE MR.DEROPAM
     NARENDRA BAJPAI, AGED 55 YEARS,
     R/O 805/806 MEGHDOOT TOWER
     A.WING, LOKHANDWALA BACK ROAD,
     OPP. JOGGING TRACK
     LOKHANDWALA AZAD NAGAR,
     ANDHERI WEST
     MUMBAI 400 053.

6.   MR. SRINIVAS PATHAK
     AGED 49 YEARS
     RESIDING AT 7TH FLOOR, 4704,
     TOWER 5, CRESCENT BAY ,
     JERBAI WADIA ROAD,
     MAHATMA PHULE EDUCATIONAL
     SOCIETY, PAREL, MUBAI - 400 012.

7.   MR. SANJIV MISRA @ SANJIV PHATAK
     AGED 77 YEARS
     RESIDING AT 1541, ATS VILLAGE,
     NOIDA EXPRESSWAY
     SECTOR 93-A, GAUTHAM BUDDHA NAGAR,
     NOIDA-201304.
                            3



8.     MR. SANJIV SOSHIL MEHTA
       AGED 60 YEARS
       RESIDING AT E 5703,
       WORLD CREST, SB ROAD,
       NEAR KAMLA MILL, LOWER PAREL,
       MUMBAI - 400 013.
                                             ... PETITIONERS

(BY SRI SANDESH J.CHOUTA, SENIOR COUNSEL A/W.
    SRI SANDEEP HUILGOL, ADVOCATE (PHYSICAL HEARING))

AND:

THE STATE
THROUGH REP. BY ITS
STATE PUBLIC PROSECUTOR
INSPECTOR OF LEGAL METROLOGY
JAYANAGARA SUB-DIVISION-1,
BENGALURU, NO.27, 'SUBHIKSHA'
OPP. TO BEST APARTMENT
BEML LAYOUT, 5TH STAGE,
RR NAGAR, BENGALURU - 560 098.
                                            ... RESPONDENT

(BY SMT.YASHODHA K.P., HCGP. (PHYSICAL HEARING))


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 484 OF
CR.P.C., PRAYING TO i) QUASH THE ORDER DATED 20.02.2020
PASSED BY THE HONOURABLE XXXII ADDL.C.M.M., BENGALURU
IN C.C.NO.5885/2020, TAKING COGNIZANCE OF THE OFFENCES
ALLEGEDLY COMMITTED BY THE PETITIONERS UNDER THE
PROVISIONS OF THE LEGAL METROLOGY ACT, 2009, READ WITH
THE LEGAL METROLOGY (PACKAGED COMMODITIES) RULES,
2011, AND ALL FURTHER PROCEEDINGS IN THE SAID CASE IN SO
FAR AS IT RELATES TO THE PETITIONERS HEREIN (ANNEXURE-A)
AND ETC.,
                            4




IN CRIMINAL PETITION No.7744 OF 2020


BETWEEN:

MR.WILHELMUS ADRIANUS
THEODORUS UIJEN
S/O THEODORUS HENRICUS
WILHELMUS MARIA UIJEN
AGED 45 YEARS
RESIDING AT SIGNIA ISLES
APARTMENT 902, G BLOCK,
BANDRA KURLA COMPLEX,
OPP. TRIDENT HOTEL
MUMBAI - 400 051.
                                              ... PETITIONER

(BY SRI SANDESH J.CHOUTA, SENIOR COUNSEL, A/W.
    SRI SANDEEP HUILGOL, ADVOCATE (PHYSICAL HEARING))

AND:

THE STATE THROUGH
REP. BY ITS STATE PUBLIC PROSECUTOR
INSPECTOR OF LEGAL METROOGY
JAYANAGARSUB-DIVISION-1, BENGALURU
NO.27, 'SUBHIKSHA',
OPP. TO BEST APARTMENT
BEML LAYOUT, 5TH STAGE
RR NAGAR, BENGALURU - 560 098.
                                            ... RESPONDENT

(BY SMT.YASHODHA K.P., HCGP. (PHYSICAL HEARING))


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO i) QUASH THE ORDER DATED 20.02.2020
PASSED BY THE HONOURABLE XXXII ADDL.C.M.M., BENGALURU
IN C.C.NO.5885/2020, TAKING COGNIZANCE OF THE OFFENCES
                                 5



ALLEGEDLY COMMITTED BY THE PETITIONERS UNDER THE
PROVISIONS OF THE LEGAL METROLOGY ACT, 2009, READ WITH
THE LEGAL METROLOGY (PACKAGED COMMODITIES) RULES,
2011, AND ALL FURTHER PROCEEDINGS IN THE SAID CASE IN SO
FAR AS IT RELATES TO THE PETITIONERS HEREIN (ANNEXURE-A)
AND ETC.

     THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

The petitioners in these petitions are before this Court

seeking the following prayer:

(i) Quashing the order dated 20.02.2020 passed by the Hon'ble Court of XXXII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.5885/2020, taking cognizance of the offences allegedly committed by the Petitioners under the provisions of the Legal Metrology Act, 2009, read with the Legal Metrology (Packaged Commodities) Rules, 2011, and all further proceedings in the said case insofar as it relates to the petitioners herein (Annexure 'A');

(ii) Quashing the complaint in C.C.No.5885/2020 filed by the Respondent before the Hon'ble Court of XXXII Additional Chief Metropolitan

Magistrate, Bengaluru, on 07.02.2020 and all the proceedings initiated in the said case pursuant to the complaint insofar as it relates to the Petitioners herein (Annexure 'B');

(iii) Quashing the impugned order dated 11.11.2020 passed by the Hon'ble Court of XXXII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.5885/2020, reissuing summons to the Petitioners herein (Annexure 'A'); and

(iv) Pass such order or further orders as this Hon'ble Court may deem fit in the facts and circumstances of the case, in the interests of justice and equity."

2. Heard Sri Sandesh J. Chouta, learned senior counsel for

the petitioners, Smt. Yashodha K.P., learned High Court

Government Pleader for the respondent in both these cases and

perused the material on record.

3. The petitioners are the directors of the Hindustan

Unilever Limited ('the HUL' for short). What triggers the

initiation of the complaint by the respondent is that, at the time

of inspection of the packaging unit, it was found that the HUL

had committed offence punishable under Section 36 of the Legal

Metrology Act, 2009 ('the Act' for short) read with Section 49(1)

of the Act. The reason for such allegation is that, the retail sale

price declared on five pre-packed packages of "Lakme Brand 9 to

5 Naturale Aloe Aqua Gel of 50 gram each", five pre-packed

packages of "Surf Excel Matic Front Load 4 kgs. + 2 Kgs. Free"

detergent powder and four pre-packed packages of "Vaseline

Cocoa Glow Moisturising Cream of 250 ml. each, were not

marked as per the illustration in terms of Rule 6(1)(e) of the

Legal Metrology (Packaged Commodities) Rules, 2011 ('the Rules'

for short). Such violation is alleged to be constituting an offence

under Section 18 of the Act read with Rule 6(1)(e) of the Rules,

which is punishable under Section 36 of the Act. On

registration of the complaint, the learned Magistrate takes

cognizance on 20.02.2020, directing registration of a criminal

case against the petitioners and issuance of summons. It is at

that juncture, the petitioners have knocked the doors of this

Court in these petitions.

4. Though several issues are raised by the petitioners in

these petitions, two issues stand covered by the judgment of this

Court rendered in W.P.No.51116/2017 and connected cases

disposed on 26.08.2021, which are not disputed by the

learned High Court Government Pleader, I deem it appropriate to

terminate the present proceedings by following the judgment in

W.P.No.51116/2017 (supra), on those two issues.

5. The two issues are that, one, the HUL - the Company is

not made a party to the proceedings, while the directors are, this

Court considering this very issue in the judgment rendered in

W.P.No.51116/2017 (supra), has held as follows:

"7. The learned Senior Counsel representing the petitioners in all these cases would submit that it is premises of the distribution network of the Company that was searched and the petitioners are only

employees of the Company. The Company having not been arrayed as an accused, the complaint registered against the petitioners, on the face of it, would not be maintainable and the issue stands covered by the judgment of the Apex Court in the case of ANITA HADA v. GODFATHER TRAVELS AND TOURS PRIVATE LIMITED1. This fact that the issue in these petitions stands covered by the judgment in the case of ANITA HADA is not disputed by the learned counsel for the respondents. The Apex Court in the case of ANITA HADA, holds as follows:

"22. On a reading of the said provision, it is plain as day that if a person who commits the offence under Section 138 of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence. The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub- section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a "deemed" concept of criminal liability.

(2012) 5 SCC 661

23. Section 139 of the Act creates a presumption in favour of the holder. The said provision has to be read in conjunction with Section 118(a) which occurs in Chapter XIII of the Act that deals with special rules of evidence. Section 140 stipulates the defence which may not be allowed in a prosecution under Section 138 of the Act. Thus, there is a deemed fiction in relation to criminal liability, presumption in favour of the holder, and denial of a defence in respect of certain aspects.

24. Section 141 uses the term "person" and refers it to a company. There is no trace of doubt that the company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence.

... ... ... ...

52. At this juncture, we may usefully refer to the decision in U.P. Pollution Control Board v. Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] . In the said case, the company was not arraigned as an accused and, on that score, the High Court quashed the proceeding against the others. A two-Judge Bench of this Court observed as follows : (SCC p. 690, para

6)

"6. ... Although as a pure proposition of law in the abstract the learned Single Judge's view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-section (1) or (2) of Section 47 of the Act unless there was a prosecution against Modi Industries Ltd., the Company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned Single Judge is his failure to appreciate the fact that the averment in para 2 has to be construed in the light of the averments contained in paras 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the Company."

Be it noted, the two-Judge Bench has correctly stated that there can be no vicarious liability unless there is a prosecution against the company owning the industrial unit but, regard being had to the factual matrix, namely, the technical fault on the part of the

company to furnish the requisite information called for by the Board, directed for making a formal amendment by the applicant and substitute the name of the owning industrial unit. It is worth noting that in the said case, M/s Modi Distilleries was arrayed as a party instead of M/s Modi Industries Ltd. Thus, it was a defective complaint which was curable but, a pregnant one, the law laid down as regards the primary liability of the company without which no vicarious liability can be imposed has been appositely stated.

53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.

54. In this context, we may usefully refer to Section 263 of Francis Bennion's Statutory Interpretation where it is stated as follows:

"A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. ... The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention."

(emphasis supplied in original)

55. It will be seemly to quote a passage from Maxwell's The Interpretation of Statutes (12th Edn.):

"The strict construction of penal statutes seems to manifest itself in four ways : in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction."

56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being

had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context."

(emphasis supplied)

The Apex Court in the afore-extracted judgment has clearly held that criminal proceedings without arraigning the company as a party and registering the

complaint only against officers or individuals would not be maintainable.

8. The Apex Court while holding that the criminal case against individuals would not be maintainable, was considering Section 141 of the Negotiable Instruments Act, 1881, which is akin to Section 49 of the Act, under which the present proceedings emanate. Section 49 of the Act insofar as it is relevant reads as follows:

"49. Offences by companies and power of court to publish name, place of business, etc., for companies convicted.--(1) Where an offence under this Act has been committed by a company,--

(a)(i) the person, if any, who has been nominated under sub-section (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 a person responsible); or

(ii) where no person has been 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.

(2) Any company may, by order in writing, authorise any of its directors 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 Director or the concerned Controller or any legal metrology officer authorised in this behalf by such Controller (hereinafter in this section referred to as the authorised officer) in such form and in such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated.

In terms sub-section (2) of Section 49 of the Act, the Company ought to have been brought on record as a party accused, as also in the light of the judgment of the Apex Court in the case of ANITA HADA. On this

solitary ground these writ petitions deserve to succeed."

6. The other issue urged by the petitioners is that, once a

reply is submitted to the show cause notice, it becomes

obligatory on the part of the respondent to pass an order on

such reply to the show cause notice, by considering the same

and once an order is passed on the reply given to the show

cause notice, the remedy available would become two fold. One,

compounding the offence under Section 48 of the Act and the

other, filing an appeal against the order passed on the reply

given to the show cause notice under Section 50 of the Act. The

respondent setting the criminal law in motion without at the

outset passing an order by considering the reply given to the

show cause notice renders the right under Section 50 of the Act,

illusory. This Court in W.P.No.51116/2017 (supra), has

considered this aspect as well. This Court has held as follows:

"12. Therefore, it becomes necessary to consider the offences that are alleged against the petitioners. The

offences alleged against the petitioners are violations of Sections 28, 29 and 31 of the Act and in terms of Section 49(1) of the Act each and every Director of the Company is contended to be deemed to be Director and a criminal complaint is registered. The prayer in the complaint is to take cognizance against the accused for offences punishable under Sections 28, 29 and 31 of the Act. Sections 28, 29 and 31 of the Act, read as follows:-

          "28.    Penalty      for  making       any
    transaction,      deal      or   contract     in

contravention of the prescribed standards,- Whoever makes any transaction, deal or contract in contravention of the standards of weights and measures specified under Section 10 shall be punished with fine which may extend to ten thousand rupees and for the second or subsequent offence, with imprisonment for a term which may extend to one year, or with fine, or with both.

29. Penalty for quoting or publishing, etc., of non-standard units. - Whoever violates Section 11 shall be punished with fine which may extend to ten thousand rupees and, for the second or subsequent offence, with imprisonment for a term which may extend to one year, or with fine, or with both.

... ... ... ...

31. Penalty for non-production of documents. etc. - Whoever, being required by or under this Act or the rules there under to submit returns, maintain any record or register,

or being required by the Director or the Controller or any legal record or register, or being required by the Director or the Controller or any legal Metrology officer to produce before him for inspection any weight or measure or any document, register or other record relating thereto, omits or fails without any reasonable excuse, so to do, shall be punished with fine which may extent to five thousand rupees and for the second or subsequent office, with imprisonment for a term which may extend to one year and also with fine."

Section 28 deals with penalty for making any transaction, deal or contract in contravention of the prescribed standards. Section 29 deals with penalty for quoting or publishing non-standard units. Section 31 deals with penalty for non-production of documents. It is also alleged that the petitioners have violated Section 10 and sub- section (1) of Section 11 which read as follows:-

"10. Use of weight or measure for particular purpose, - Any transaction, dealing or contract in respect of any goods, class of goods or undertakings shall be made by such weight, measure or number as may be prescribed.

11. Prohibition of quotation, etc. otherwise than in terms of standard units of weight, measure or numeration. - (1) No person shall, in relation to any goods, things or service, -

(a) quote, or make announcement of, whether by word or mo9uth or otherwise, any price or charge, or

(b) issue or exhibit any price list, invoice, cash memo or other documents, or

(c) prepare or publish any advertisement, poster or other document, or

(d) indicate the net quantity of a pre-packaged commodity, or

(e) express in relation to any transaction or protection, any quantity or dimension.

otherwise than in accordance with the standard unit of weight, measure or numeration.

Section 48 deals with compounding of offences and Section 50 deals with appeal and they read as follows:

"48. Compounding of offence.- (1) Any offence punishable under section 25, sections 27 to 39, sections 45 to 47, or any rule made under sub-section (3) of section 52 may, either before or after the institution of the prosecution, be compounded, on payment for credit to the Government of such sum as may be prescribed.

(2) The Director or legal metrology officer as may be specially authorised by him in this behalf, may compound offences punishable under section 25, sections 27 to 39, or any rule made under sub-section (3) of section 52.

(3) The Controller or legal metrology officer specially authorised by him, may compound offences punishable under section 25, sections 27 to 31, sections 33 to 37, sections 45 to 47, and any rule made under sub-section (3) of section 52:

Provided that such sum shall not, in any case, exceed the maximum amount of the fine, which may be imposed under this Act for the offence so compounded.

(4) Nothing in sub-section (1) shall apply to person who commits the same or similar offence, within a period of three years from the date on which the first offence, committed by him, was compounded.

Explanation.--For the purposes of this sub- section, any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence.

(5) Where an offence has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded.

(6) No offence under this Act shall be compounded except as provided by this section."

"50. Appeals.- (1) Subject to the provisions of sub-section (2), an appeal shall lie,--

(a) from every decision or order under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-section (3) of section 52 by the legal metrology officer appointed under section 13, to the Director;

(b) from every decision or order made by the Director of Legal Metrology under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-section (3) of section 52, to the Central Government or any officer specially authorised in this behalf by that Government;

(c) from every decision given by the Controller of Legal Metrology under delegated powers of Director Legal Metrology to the Central Government;

(d) from every decision given or order made under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any rule made under sub- section (3) of section 53 by any legal metrology officer appointed under section 14, to the Controller; and

(e) from every decision given or order made by the Controller under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any rule made under sub-section (3) of section 53 not being an order made in appeal under clause (d), to the State Government or any officer specially authorised in this behalf by that Government.

(2) Every such appeal shall be preferred within sixty days from the date on which the impugned order was made:

Provided that the appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, permit the appellant to prefer the appeal within a further period of sixty days.

(3) On receipt of any such appeal, the appellate authority shall, after giving the parties to the appeal, a reasonable opportunity of being heard and after making such inquiry as it deems proper, make such order, as it may think fit, confirming, modifying or reversing the decision or order appealed against or may send back the case with such direction as it may think fit for a fresh decision or order after taking additional evidence, if necessary.

(4) Every appeal shall be preferred on payment of such fees, as may be prescribed.

(5) The Central Government or the State Government, as the case may be, may on its own motion or otherwise, call for and examine the record of

any proceeding including a proceeding in appeal in which any decision or order has been made, for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such orders thereon as it may think fit:

Provided that no decision or order shall be varied under this sub-section so as to prejudicially affect any person unless such person has been given a reasonable opportunity of showing cause against the proposed action."

(emphasis supplied)

Compounding of offences is a remedy that is available once offences punishable under Sections 27 to 39 of the Act are alleged against any accused. A remedy of appeal is also available to an accused for any order passed under Sections 15 to 20, 22, 25, 27 to 39 and 41 of the Act or any Rule made thereunder. Therefore, the dual remedy that is available once an offence is alleged is that, one can compound the offence and the other, to file an appeal against an order that would be passed. The petitioners in these cases were in fact summoned to compound the offences though no order was passed either accepting the reply or rejecting it. Therefore, in the light of the remedy of appeal being available in terms of Section 50 of the Act, once offences are alleged against the petitioner under Sections 28, 29 and 31 of the Act, it was obligatory on the part of the respondents to have passed

an order, for the petitioners to avail the remedy of filing an appeal under Section 50 of the Act, as the offences alleged are of offences against which an appeal under Section 50 of the Act would encompass. By not passing an order on the reply given to the notice/show cause notice by the petitioners, it has rendered the remedy of appeal under Section 50 of the Act as illusory or superfluous. Silence on the part of the respondents cannot be construed to be an order that can be passed, which would become applicable under Section 50 of the Act. The order must be in writing for the petitioners to avail of the remedy of appeal under Section 50 of the Act. It is a liberty granted to the petitioners and the like under the Act; availing of it or not, is the choice of the petitioners but passing an order either accepting the reply or rejecting it, is an obligation on the part of the State performing its functions under the Act. It is only after an order being passed by the Appellate Authority either rejecting or allowing the appeal, registration of a criminal case can take place. Admittedly, no order considering the reply of the petitioners is passed in these cases and as such, the petitions deserve to succeed in part and the matter has to be remitted to the hands of the respondents to act in accordance with law."

7. Learned High Court Government Pleader would though

try to counter the submissions made by the learned senior

counsel, would accept the fact that the aforesaid issues stand

covered by the judgment of this Court passed in

W.P.No.51116/2017 (supra).

8. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition Nos.7740/2020 and 7744/2020 are allowed in-part and proceedings pending before the criminal Court in C.C.No.5885 of 2020 on the file of the XXXII Additional Chief Metropolitan Magistrate, Bengaluru, stand quashed.

(ii) The matters are remitted back to the respondent with a direction to pass an order on the reply given by the petitioners to the show cause notice and communicate the same to the petitioners within 8 weeks from the date of receipt of copy of this order. Thereafter, the petitioners are at liberty to invoke appeal remedy in the event they are so aggrieved by the order passed by the respondent, in terms of Section 50 of the Act.

(iii) All other contentions which are not specifically considered are kept open.

Sd/-

JUDGE

nvj CT:MJ