Stanny John Barboza vs State Rep By
2023 Latest Caselaw 7275 Mad

                                                                           Crl OP No. 19296 / 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 28.06.2023

                                                      CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN


                                            Crl.O.P.No.19296 of 2021 and
                                              Crl.M.P.No.10597 of 2021

                     Stanny John Barboza                                     ...Petitioner/A2

                                                        Versus

                     1.State Rep by
                       The Inspector of Police,
                       Central Crime Branch,
                       Team IX,
                       Vepery, Chennai – 7.


                     2. Protector of Emigrants
                         Office of the Protector of Emigrants
                         TNHB Complex, Ashok Nagar,
                         Chennai – 83.                                       ...Respondents


                     PRAYER : Criminal Original Petition filed under Section 482 of the
                     Criminal Procedure Code seeking to call for the records pertaining to the
                     C.C.No.2037 of 2017 on the file XI Metropolitan Magistrate Court,
                     Saidapet, Chennai, and quash all further proceedings as against the
                     petitioner.

https://www.mhc.tn.gov.in/judis
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                                                                                   Crl OP No. 19296 / 2021



                                        For Petitioner      : Mr.M.S.Soundararajan

                                        For R1              : Mr. A.Damodaran
                                                              Additional Public Prosecutor

                                        For R2              : Mr. B.Sudhir Kumar



                                                           ORDER

The petition is to quash the final report for the alleged offences

under Sections 420 of the Indian Penal Code and 24 and 10 (2) (iv) of the

Emigration Act, 1983.

2. It is alleged in the final report that the petitioner/A2 and others

were recruiting persons and sending them abroad without valid license

from the Central or the State Government.

3. Mr.S.Soundarajan, the learned counsel for the petitioner

would submit that the petitioner is only an employee of one

“Arafa Travel Service”; that even according to the prosecution, the said

travel service is a partnership firm and without arraying as a partnership

firm as an accused, the petitioner cannot be prosecuted. The learned

counsel for the petitioner relied upon the Judgments of the Honourable https://www.mhc.tn.gov.in/judis

Crl OP No. 19296 / 2021

Supreme Court and this Court in support of his submission that when the

offence is committed by a company or a partnership firm, persons in

charge of the firm/company cannot be prosecuted without prosecuting the

company or the firm. Hence, he prayed for quashing of the final report.

4. Mr. A. Damodaran, the learned counsel for the first respondent

and Mr. B. Sudhir Kumar, the learned counsel for the second respondent

submitted that it is not a case where the petitioner is sought to be

prosecuted on the ground of vicarious liability; that the allegations are that

he committed the offences independently and; that the question as to

whether the offences have been committed by the partnership firm or by

this person independently, is a question of fact and cannot be adjudicated

in this quash petition. Hence, they prayed for dismissal of the quash

petition.

5. This Court is of the view that the question as to whether the

prosecution against the petitioner is in his individual capacity or he is

vicariously liable for the offences committed by the partnership firm is

factual. Thus, this Court is not inclined to entertain this quash petition on

https://www.mhc.tn.gov.in/judis

Crl OP No. 19296 / 2021

such disputed facts. However, the petitioner is at liberty to raise all his

contentions before the Trial Court. Hence, the Criminal Original Petition is

dismissed. Consequently, the connected Miscellaneous Petition is closed.

28.06.2023 dk Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

To

1.The Metropolitan Magistrate Court, Saidapet, Chennai.

2. The Inspector of Police, Central Crime Branch, Team IX, Vepery, Chennai – 7.

3. The Public Prosecutor, High Court of Madras, Chennai – 600 104.

https://www.mhc.tn.gov.in/judis

Crl OP No. 19296 / 2021

SUNDER MOHAN, J.

dk

Crl.O.P.No.19296 of 2021 and Crl.M.P.No.10597 of 2021

Dated: 28.06.2023

https://www.mhc.tn.gov.in/judis