Orissa High Court

Court Of The Special Judge ... vs State Of Odisha (Vigilance) ... on 23 September, 2022

           IN THE HIGH COURT OF ORISSA, CUTTACK

                        CRLMC NO.2845 OF 2021
     In the matter of an application under Section 482 of the Code of
     Criminal Procedure challenging the Charge-sheet No.03 dated
     30.03.2012, filed by Balasore Vigilance P.S. in VGR Case No.22 of
     2011, corresponding to T.R. No.15 of 2012, registered in the
     Court of the Special Judge (Vigilance), Keonjhar as well as the
     order of cognizance dated 21.11.2012 passed by the learned
     Special Judge (Vigilance), Keonjhar.
                                     -----------------

Md. Mofazzalur Rahman .......Petitioner

-Versus-

State of Odisha (Vigilance) ...... Opp.party

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Advocate(s) who appeared in this case through Hybrid mode:

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For Petitioner - M/s. Pranaya Kumar Dash, V. Mohapatra, G. Khanna, S. Mohanty, Advocates.

            For Opp.party              -    Mr. Srimanta Das,
                                            Sr. Standing Counsel (Vig.)


                 PRESENT:-

THE HON'BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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Date of judgment:-23.09.2022

S. PUJAHARI, J. This is an application filed by the petitioner

under Section 482 of the Code of Criminal Procedure (for

short the "Cr.P.C.") seeking for quashing of the Charge-

sheet dated 30.03.2012 filed in Balasore Vigilance P.S.

// 2 //

Case No.54 of 2009 (VGR Case No.22 of 2011),

corresponding to T.R. No.15 of 2012 in the court of the

learned Special Judge (Vigilance), Keonjhar, the order

dated 21.11.2012 passed by the said learned Court

taking cognizance of the offences under Sections 13(2)

read with Section 13(1)(d) of the Prevention of Corruption

Act, 1988 (for short the "P.C. Act") and under Sections

420, 379, 120-B of IPC, Section 21 of the MMDR Act,

1957 and Section 2 of the Forest (Conservation) Act,

1980 against the petitioner and co-accused persons, and

the consequential proceedings.

2. Heard the learned counsel for the petitioner

and Mr. Srimanta Das, the learned Sr. Standing counsel

appearing for the Vigilance Department.

3. The F.I.R. in this case appears to have been

lodged by the Deputy Superintendent of Police, Vigilance

Cell, Cuttack on the basis of a report of joint enquiry /

verification conducted by a Team of the Vigilance

Department on 10.11.2009 and 11.11.2009 in respect of

Guruda Manganese Mines of M/s. Serajuddin & Co.

located at Guruda under Joda Mining Circle, District-

// 3 //

Keonjhar on the allegation of illegal mining activities of

the aforesaid company. Pursuant to the said report, a

case was registered by the Superintendent of Police,

Vigilance, Balasore Division, Balasore, and on

completion of investigation, charge-sheet was laid for the

offences indicated above against eight accused persons

including the present petitioner, who is a Partner of the

Mining Leaseholder, namely, M/s. Serajuddin & Co. On

the basis of the charge-sheet so submitted, the learned

Special Judge (Vigilance), Keonjhar has taken cognizance

of those offences and issued process to the petitioner

and the co-accused persons. Hence, the present

application.

4. The petitioner has sought for quashing of the

Charge-sheet, the impugned order of cognizance and the

consequential proceeding on the grounds, inter-alia, that

the very inception of the prosecution is unauthorized,

inasmuch the Vigilance Police had no authority to

conduct the joint enquiry or verification prior to issuance

of the Notification No.IV(A)SM-101/209-307/SM dated

27.01.2010 which devolved limited power on police for

// 4 //

the purpose of detection, seizure and search into the

alleged Mining activities. Admittedly, the F.I.R. in the

present case has been drawn on the basis of the report

of the joint physical verification of the Mines in question

said to have been conducted on 10.11.2009 and

11.11.2009, i.e., prior to issuance of the aforesaid

Notification. It is the further contention of the petitioner

that the charge-sheet as submitted against him is also

bereft of any factual or legal basis, and that the learned

trial Court has passed the impugned order of cognizance

without application of judicial mind. The allegation wise

counter submissions made by the petitioner vide his

application at hand may be broadly outlined as under:-

(i) It is alleged that the Lessee-company, M/s.

Serajuddin & Co. extracted and despatched a

quantity of 88,079.847 MT and 88,068.345 MT of

Manganese Ore respectively, the value of which

amounted Rs.104,48,03,145/-, during the period

from 1966 to 1973, without any valid mining lease.

As against this allegation, it is contended by the

petitioner that the State Government had granted

// 5 //

the Mining lease in favour of the Lessee-company

over an area of 93.1 acres on 16.05.1955 for a period

of twenty years, and the said grant for the reasons

stated had been revoked on 04.04.1962 on the

ground of failure on the part of the Lessee to execute

the Mining lease deed within the stipulated time. The

Lessee preferred a revision under Section 30 of the

MMDR Act before the Central Government

challenging the said revocation order, and during

pendency of the said revision application, the

Collector, Keonjhar allowed the Lessee to resume

Mining operation. Since the revision application of

the Lessee was rejected by the Central Government,

being aggrieved thereby, the Lessee preferred an

appeal bearing FMA No.240 of 1971 in the High

Court of Calcutta and also filed a Civil Revision

No.2013(J) of 1966 against the revocation order of

the State Government before the said High Court.

The aforesaid Civil revision was allowed on

07.09.1973 setting aside the revocation order of the

State Government, and the said order was

// 6 //

challenged by the State Government by filing a

Special Leave Petition, i.e., SLP(C) No.1322 of 1976

before the Apex Court. The Apex Court dismissed the

appeal of the State Government and thereby the

order of revocation passed by the State Government

on 04.04.1962 was held to be bad in law. On

25.01.2000 the State Government revoked its earlier

order dated 27.05.1976 vide which the renewal

application of the Lessee had been rejected, and

allowed the Lessee to execute the Mining lease for a

period of twenty years with effect from the date of

execution of the deed. It is thus the contention of the

petitioner that the right, title and interest of the

Lessee-company was recognized by the High Court of

Calcutta vide their judgment dated 07.09.1973 in

FMA No.240 of 1971, and the State Government also

in its grant order dated 25.01.2000 categorically

recognized the right of the Lessee to hold the Mining

lease with effect from 16.05.1955. In that view of the

factual position, it is the ultimate submission of the

petitioner that the allegation of the prosecution that

// 7 //

the Mining activities carried out by the Lessee during

the period from 1966 to 1973 did not suffer from any

illegality, inasmuch as the lease was restored by the

State Government vide the grant order dated

25.01.2000. It is the alternative submission of the

petitioner that the alleged offence relating to the

period from 1966 to 1973 also could not have been

taken cognizance of in view of the bar contained in

Section 468 of Cr.P.C. It is also submitted that the

State Government has collected royalty for the

despatches made during the period from 1966 to

1973, and hence, the Mining operation during the

said period cannot be said to be illegal.

(ii) It is alleged that due to the Mining operation

carried out over the Forest land without any

permission, the Lessee is liable to pay a total

amount of Rs.60,37,500/- towards Net Present

Value (NPV). As against this, it is the

submission of the petitioner that for the first

time, the DFO, Keonjhar vide his letter dated

05.02.2014 raised the demand for payment of

// 8 //

NPV for 8.045 ha in forest area of Guruda

Mining Leasehold area and immediately

thereafter the Lessee deposited an amount of

Rs.58,72,850/- towards NPV as per the

demand notice. Hence, the allegation that the

State Government incurred a loss for non-

payment of NPV is factually not correct.

(iii) It is alleged by the prosecution that there was

excavation 4600 MT of Manganese Ore

amounting to Rs.11,59,20,000/- by digging pit

in Plot No.615, Khata No.44 (Parbat Kisam)

without any permission from the Ministry of

Environment and Forest and thereby the

Lessee contravened the provisions of law which

amounts to theft. The petitioner has refuted

this allegation by submitting that pursuant to

the order dated 21.04.2014 passed by the Apex

Court in W.P.(C) No.114 of 2014, the State

Government furnished a list of 51 Iron Ore and

Manganese Leases which had carried out

Mining operation in violation of Forest

// 9 //

(Conservation) Act, and that the Lessee-

company (M/s. Serajuddin & Co.) being not

included in the said list as Violator, the

allegation made by the Prosecution in this

behalf is wholly erroneous and unwarranted. It

is the further submission of the petitioner that

since the Mining lease was granted with effect

from 16.05.1955 and the Lessee has been

carrying out the Mining operation

intermittently and some portion of the Mining

leases in the State including the Lessee's

Mining lease being identified as DLC Forest

Area on 06.01.1998 only pursuant to the order

dated 12.12.1996 of the Apex Court in W.P.(C)

No.202 of 1995, non-mention of the particular

period during which, the Lessee allegedly

carried out Mining operation in DLC Forest

area renders the charge-sheet inconclusive and

erroneous. It is further emphasized by the

petitioner that no complaint having been filed

in view of Rule-9 of the Forest (Conservation)

// 10 //

Rules, 2003, no proceeding for the alleged

violation of Section 2 of the Forest

(Conservation) Act, 1980 could have been

initiated. A copy of the list of 51 Violators of

Forest (Conservation) Act, 1980 as submitted

by the State Government to the Central

Empowered Committee has been submitted by

the petitioner at Annexure-9 of the application.

(iv) It is next alleged by the prosecution that the

Lessee-company extracted Manganese Ore in

excess of the actual production shown in its

record and thereby committed theft to the tune

of Rs.639,90,26,905/-. As against this

allegation, it is submitted by the petitioner that

the assessment of the alleged excess

production has been based on erroneous

premise, inasmuch as the same was carried

out by way of Tape / Chain method in the Joint

Physical verification which was highly

unscientific and inaccurate leading to

"Compensation Errors" and "Cumulative

// 11 //

Errors". According to the petitioner, with

respect to Manganese Ores, the assessment

ought to be made by analyzing the exploration

data in respect of the concerned Mine with

reference to the Mining plan / Mining scheme,

and that in the present case, only 122.95 of the

Ores had been found indicating exploration of

only 8% to 10% of the total area. According to

the petitioner, the result would have been in

the range of 1,07,799.25 MT from the four

quarries and not 14,27,797.990 MT as alleged

by the prosecution. It is, therefore, submitted

that the allegation made by the prosecution on

this count is not sustainable due to erroneous

assessment.

(v) It is the further allegation of the prosecution

that the Lessee-company evaded payment of

royalty to the tune of 19,19,70,807/- and also

committed default in payment of sales tax to

the tune of Rs.25,59,61,076/-. As against this,

it is submitted by the petitioner that the Lessee

// 12 //

has duly paid the applicable royalty and sales

tax for the extracted quantity of 1,10,658.217

MT of Manganese Ore and not the quantity as

alleged by the prosecution. He further relies on

the Clearance Certificate issued by the DDM,

Joda and in that view of the claim, the

petitioner refutes the allegation regarding

evasion of royalty or sales tax.

(vi) It is further alleged by the prosecution that the

Lessee-company evaded payment of sales tax to

the tune of Rs.16,86,744/- by submitting

fabricated statements on the quality and value

of the Manganese ore and caused loss to the

Government Exchequer to that extent. In this

context, it is contended by the petitioner that

the allegation so made by the prosecution

being based solely on the premise that the

prevailing market rate of Orissa Mining

Corporation was higher than the sale value of

the Ore disclosed by the Lessee in its sale

// 13 //

the prosecution. According to the petitioner,

the Lessee sold the Ore as per the prices shown

in its sale register and, accordingly, the sales

tax was paid. He further submits that in view

of the clearance certificate issued by the Sales

Tax Authorities, the allegation made by the

prosecution on this count is not sustainable.

5. Besides the contentions as above, the

petitioner has also relied on certain subsequent events to

contend that the launching of the present prosecution is

not sustainable in law. It is averred by him that the

Multi-Disciplinary Committee constituted by the State

Government on 05.11.2016 comprising Director of

Mines, Odisha, Representatives of Director, Vigilance,

Representative of Principal Secretary, Forest &

Environment Department, Regional Controller of Mines,

Indian Bureau of Mines and Director of Geology re-

examined the Vigilance cases in relation to Mining leases

including the present case by holding several meetings

in the year 2017 and it has been observed, inter-alia, by

// 14 //

the said Committee that the allegations made by the

Vigilance vide the charge-sheet in the present case are

not correct. The petitioner further submits that in the

aftermath of the judgment dated 02.08.2017 of the Apex

Court in W.P.(C) No.114 of 2014, in the case of Common

Cause vrs. Union of India, the Special Investigation

Team (Black Money) observed that a fresh look may be

given by the Multi-Disciplinary Committee, and that the

Enforcement Directorate should be a part of the said

Committee, for taking a fresh decision. In the light of the

judgment of the Apex Court dated 02.08.2017 the

Vigilance cases in relation to Mining lease were re-visited

by the Committee and the said Committee vide its

subsequent report dated 06.12.2018 reiterated its views

given in the earlier report. The Committee has found the

allegations made by the Vigilance to be based on

misconception and incorrect facts and figures. It is

ultimately submitted by the petitioner that in view of the

reports of the aforesaid Multi-Disciplinary Committee,

nothing survives to be decided in the present Vigilance

// 15 //

case, and hence, the same should be quashed to prevent

further abuse of the process of the Court.

6. It is further submitted by the learned counsel

for the petitioner that, the procedures contemplated

under the MMDR Act having not been followed in the

present case, and the Vigilance Department being not

competent to launch the prosecution in terms of Section

22 of the MMDR Act, and no complaint as required by

the said Act having been made by the Authorized Officer,

the charge brought under the said Act is not sustainable

in law. It is his further submission that the Lessee-

company having already been exonerated from the

charge of violation of the provisions under the Forest

(Conservation) Act in the civil proceedings before the

Apex Court in W.P.(C) No.114 of 2014, no criminal

proceeding for violation of the said Act could have been

initiated. In this context, the petitioner has placed

reliance on a decision of the Apex Court in the case of

Radheshyam Kejriwal vrs. State of West Bengal,

reported in (2011) 3 SCC 581, wherein it has been held

that a person exonerated in civil adjudication should not

// 16 //

be proceeded against for the same wrong in a criminal

case, the underlying principle being the higher standard

of proof in criminal proceedings. The aforesaid view has

been reiterated by the Apex Court in the case of Ashoo

Surendranath Tewari vrs. CBI, reported in (2020) 9

SCC 636.

7. Referring a Three Judge Bench decision of the

Apex Court in the case of State of Orissa vrs.

Debendra Nath Padhi, reported in (2005) 1 SCC 568,

the learned counsel for the petitioner submitted that the

documents of unimpeachable character can be taken

into consideration by the High Court for quashing of a

criminal proceeding in exercise of power under Section

482 of Cr.P.C. The said principle has been reiterated in a

later decision of the Apex Court in the case of Rukmini

Narvekar vrs. Vijaya Satardekar, reported in (2008)

14 SCC 1. The principle settled by the said Authorities is

that although at the stage of framing of charge the

accused has no scope to produce any evidence before the

trial Court, in a proceeding taken therefrom under

Section 482 of Cr.P.C., the High Court is free to consider

// 17 //

material that may be produced on behalf of the accused

to arrive at a decision whether the charge as framed

could be maintained. Needless to mention that the said

principle can also be applied to a proceeding under

Section 482 of Cr.P.C. for quashing of the order of

cognizance and the consequential proceedings. The

learned counsel has also placed reliance on a decision of

the Apex Court in the case of Anita Malhotra vrs.

Apparel Export Promotion Council, reported in (2012)

1 SCC 520, in which it was held that if on the face of a

document which is beyond any suspicion and placed on

record by the accused, it is discovered that the allegation

/ charge against the accused cannot stand, it is

incumbent on the High Court to look into those

documents which have the bearing on the matter, even

at the initial stage and grant relief to the accused, in

exercise of the jurisdiction under Section 482 of Cr.P.C.

8. The learned counsel also emphasized that

since the entire allegation by the prosecution has been

directed against the Lessee-company, i.e., M/s.

Serajuddin & Co., the petitioner, who is a partner of the

// 18 //

said company, could not have been charge-sheeted in

absence of any specific allegation against him much less

any evidence showing or suggesting him to have acted

independent of the will or interest of the company. In

support of his such contention, he has placed reliance

on the decisions of the Apex Court in the cases of Sunil

Bharti Mittal vrs. CBI, reported in (2015) 4 SCC 609,

Sharad Kumar Sanghi vrs. Sangita Rane, reported in

(2015) 61 OCR (SC) 551 and Ravindranath Bajpe vrs.

Mangalore Special Economic Zone Ltd. and others,

reported in AIR 2021 SC 4587 and some other

authoritative pronouncements.

9. The learned counsel for the petitioner has also

placed reliance on a single Bench decision of this Court

rendered in a batch of cases vide CRLMP No.35 of 2022,

CRLMP No.36 of 2022 etc. (decided on 18.02.2022), to

submit that in similar fact situations, the prosecution

has been quashed in those cases.

10. Per contra, the learned Sr. Standing counsel

appearing for the Vigilance Department submits that

present being not a stage of the proceeding to make any

// 19 //

threadbare analysis of the materials placed by the

prosecution, and what all that is necessary being to find

out as to whether or not there are prima-facie materials

against the accused to be proceeded with for the offences

alleged, the contentions advanced by the petitioner do

not deserve to be looked into. According to him, there are

enough materials on record showing involvement of the

petitioner in criminal conspiracy and other offences as

indicated above, and that technical flaws, if any, in the

prosecution set up should not come in the way of doing

substantial justice. It is his further submission that the

contentions raised by the petitioner being in the nature

of his defence plea to be substantiated through evidence

at the stage of trial, this Court at the threshold of the

proceeding should not interfere with the impugned order

in exercise of its inherent jurisdiction.

11. With regard to the scope of exercise of inherent

power by the High Court to quash a criminal proceeding,

the Apex Court in the case of R.P. Kapur vrs. State of

Punjab, reported in AIR 1960 S.C. 866, held as under:-

// 20 //

"xxxxx It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category.

// 21 //

Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. xxxxxxxx"

// 22 //

12. Further, in the case of State of Haryana vrs.

Bhajan Lal, reported in 1992 Supp.(1) SCC 335 the

Apex Court also illustrated certain circumstances, under

which the High Court can exercise its power under

Section 482 of Cr.P.C. to quash a criminal proceeding at

the threshold, if continuance of the proceeding is found

to be tantamount to abuse of the process of the Court.

13. In the case at hand, the documents relied on

by the petitioner do not appear to have been disputed by

the Vigilance Department. It further appears from the

charge-sheet and other papers on record that the entire

allegation is directed against the Lessee-company, i.e.,

M/s. Serajuddin & Co.. There is hardly any allegation in

specific against the petitioner regarding his involvement

in any of the alleged offences, independent of the will,

intent or interest of the Lessee-company. The allegation

against the Lessee-company appears to be essentially

regarding alleged violation, illegalities etc. in relation to

Mining activities, attracting the provisions of the MMDR

Act. Needless to mention that no prosecution for any

offence under the said Act can be initiated except on a

// 23 //

complaint by the Authorized Officer in view of Section 22

of the said Act. A complaint is also required for

launching a prosecution under the Forest (Conservation)

Act, 1980. Thus, statutory requirements have not been

followed in the present case.

14. In the case of Sunil Bharti Mittal (supra) the

Apex Court 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 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."

// 24 //

15. In the case of Sharad Kumar Sanghi (supra)

the Apex Court held as under:-

"9. The allegations which find place against the Managing Director in his personal capacity, as we notice, are absolutely vague. When a complainant intends to proceed against the Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. In Maksud Sajyad vs. State of Gujarat (2008) 5 SCC 668, it has been held, thus:

"where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein (2008) 5 SCC 668 were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in

// 25 //

the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligator on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."

10. The same principle has been reiterated in S.K.

         Alagh     v.   State     of     UP   (2008)     5     SCC   662,
         Maharashtra        State         Electricity        Distribution

Company Ltd. v. Datar Switchgear Ltd. (2010) 10 SCC 479; and GHCL Employees Stock Opinion Trust v. India Infoline Ltd. (2013) 4 SCC 505.

13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant."

16. In the case of Pradeep S. Wodeyar vrs. The

State of Karnataka, reported in 2021 S.C. 503 the

Apex Court held as under:-

// 26 //

"80 Vicarious liability and Section 23 of MMDR Act A-1 submitted that the charge-sheet does not ascribe any role to A-1 and hence the process initiated against him must be quashed. The appellants in support of their argument relied on Sunil Bharati Mittal (supra), Shiva Kumar Jatia v. NCT of Delhi60, Sunil Sethi v. State of Andhra Pradesh61 and Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd.62 In Sunil Bharati Mittal (supra), a three- judge Bench of this Court observed that the general rule is that criminal intent of a group of people who undertake business can be imputed to the Company but not the other way around. Only two exceptions were provided to this general rule: (i) when the individual has perpetuated the commission of offence and there is sufficient evidence on the active role of the individual; and (ii) the statute expressly incorporates the principle of vicarious liability. Justice Sikri writing for a three-

judge Bench observed:

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."

// 27 //

17. In the case of Ravindranatha Bajpe (supra)

the Apex Court also held as follows:-

"27. As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are Chairman, Managing Director / Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot be held vicariously liable for the offences committed by A1 & A6.

28. From the order passed by the learned Magistrate issuing the process against the respondents herein - accused nos.1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie case against

// 28 //

respondent nos.2 to 5 and 7 & 8. Merely because respondent Nos.2 to 5 and 7 & 8 are the Chairman / Managing Director / Executive Director / Deputy General Manager / Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against respondent nos.1 to 8 herein - original accused nos.1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC."

18. In view of the well settled principle of law, as

apparent from the decisions quoted above, the

prosecution launched against the petitioner is found to

be legally not sustainable, although the petitioner is

admittedly a Partner of the Lessee-company. Further, for

the discussion made hereinbefore, the offence of criminal

conspiracy and other offences as alleged, are found to be

not made out against the petitioner, especially when

there is no specific allegation in that regard against him

// 29 //

either as an individual or a partner of the Lessee-

company. Hence, this Court finds merit in the contention