Patna High Court
P. R. S. Panicker And Ors vs State Of Bihar And Anr on 6 August, 2024
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.35479 of 2016
Arising Out of PS. Case No.-536 Year-2016 Thana- SIWAN COMPLAINT CASE District-
Siwan
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1. P. R. S. Panicker. Son of Late Raghav Panicker, General Manager, Vishnu
Sugar Mill Ltd. At and P.O. Gopalganj, P.S.- Harakhua, District- Gopalganj.
2. Vinay Kumar Dwivedi son of Sri Madhusudan Dwivedi, Chief Cane
Manager, Vishnu Sugar Mill Ltd. At and P.O. Gopalganj, P.S.- Harakhua,
District- Gopalganj.
3. Ramashrey Singh son of Late Hansh Raj Singh, Chaumukha Purchase
Centre Incharge, Siwan resident of Village P.O.- P.S Mahnazpur South, Dist.
Azamgarh U.P..
... ... Petitioner/s
Versus
1. State of Bihar
2. Santosh Singh, son of Late Rampreet Singh, resident of Village- Jalalpur,
P.S.- Darauda, District- Siwan.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ashish Giri, Advocate
Mr. Sumit Kumar Jha, Advocate
Ms. Riya Giri, Advocate
For the Opposite Party/s : Mr. Anand Mohan Prasad Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 06-08-2024
The present petition has been preferred against the
impugned order dated 18.05.2016 passed by Ld. A.C.J.M-IX,
Siwan in Criminal Complaint Case No. 536 of 2016, whereby
Ld. Magistrate has taken cognizance of the offence punishable
under Sections 264, 265, 266, 418, 420 and 379/120B of the
Indian Penal Code against the General Manager, and Cane
Manager of Vishnu Sugar Mills Limited, Gopalganj besides
ones Ramashray Singh and Hare Ram Singh and had directed
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
2/11
issuance of summons against them.
2. The prosecution case as emerging from the
Criminal Complaint bearing No. 536 of 2016, filed by the
Complainant, Santosh Singh is that he is a cane grower and sells
sugarcanes to the sugar mill. It has been alleged that the
representative of the Vishnu Sugar Mill Ltd. situated at
Gopalganj came to the Complainant stating that the said sugar
mill had opened a purchase centre in the village, Chaumukha,
Siwan and requested him to sell sugarcanes at the said purchase
centre, where there is no irregularity in weight and measure. On
the basis of the representation, the Complainant started bringing
his sugarcanes since 11.01.2016 to the said Chaumukha Cane
Centre. When the Complainant doubted the correctness of the
weight of the sugarcanes at the said purchase centre, on
23.01.2016
, he got his sugarcanes weighed at another weight
centre i.e Bajrang Dharamkata, located at Rasulpur, District-
Saran, wherein the weight of one trailer of sugarcanes was
found to be 64 quintal and 32 kg, whereas weight of another
trailer was found to be 63 quintal and 60 kg, after which the
Complainant got the same weighed at the Chaumukha Purchase
Centre, where the weight shown was 55 quintal and 58 kg and
56 quintal 18 kg respectively. When the Complainat showed the
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
discrepancy to the Accused No.3, Ramashray Singh and the
Accused No.4, Hare Ram Singh, they claimed that the weight
was correct. Accordingly, again on 26.01.2016 the Complainant
got the sugarcanes weighed at the said Bajrang Dharamkata,
where the weight was shown to be 57 quintal 30 kg, whereas, at
the purchase centre, it was shown to be 49 quintal 97 kg.
Discrepancy in the weight was again found on 29.01.2016. The
weight at Bajrang Dharamkata was shown to be 62 quintal and
30 kg and 58 quintal and 40 kg of two trailers, whereas, the
weight at the Chaumukha Purchase Centre was shown to be 54
quintal 70 kg and 50 quintal and 93 kg respectively.
3. Subsequently, the Complainant informed the
discrepancy to the District Collector on 04.02.2016, after which
inspection order was passed and on 05.02.2016 the Complainant
weighed the sugarcanes again at the Bajrang Dharamkata, where
it shows the weight as 61 quintal and 80 kg, whereas the weight
of the sugarcanes at Chaumukha Purchase Centre in the
presence of the Block Development Officer, Pachrukhi was
found to be 53 quintal and 80 kg. Thereafter, the purchase centre
was sealed.
4. Hence, the Complainant has claimed that the
accused persons have kept defective weight measures at
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
Chaumukha Purchase Centre and cheated the Complainant by
weighing 8 quintal less than the actual one and have mis-
appropriated the property of the Complainant. It has also been
alleged that even the sale price of the sugarcane has also not
been paid to the Complainant. The Complainant approached the
local police and the District Magistrate, but no action was taken.
Hence, the Complaint was filed.
5. Prior to the cognizance, the Complainant and two
other witnesses were examined during enquiry under Section
200 Cr.PC. They have supported the allegation as made in the
complaint.
6. Ld. Counsel for the Petitioner submits that the
Petitioner is innocent and has falsely been implicated in this
case. He further submits that the Bihar Sugar Cane (Regulation
of Supply and Purchase) Act, 1981is special enactment dealing
with purchase of sugarcane and in the Act, there is provisions
regarding proper maintenance of purchase centres and measures
of weight at the purchase centres and there is also penal
provisions for violation of the provisions regarding purchase
centre and weights and measurements. He further submits that
in view of special enactment regarding violation in regard to
weights and measurement, the application of general Act like
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
IPC and even the Legal Meterology Act, 2009 get excluded.
Hence, there is no question of application either of the IPC or
even the Legal Meterology Act, 2009. In support of his
submissions, he refers to Subodh Kumar Purbey Vs. the State
of Bihar and Others, 2017 SCC Online Pat 1881, wherein a
co-ordinate Bench of this Court has held that in view of Section
51 of Legal Meterology Act, 2009, the provision of IPC is
excluded. Ld. Counsel for the Petitioner also refers to Darshan
Thakur Vs. State of Bihar and Another, 2012 SCC Online
Pat 43, wherein a co-ordinate Bench of this Court has held that
in view of Section 52, Bihar Sugarcane (Regulation of Supply
and Purchase) Act, 1981, providing for punishments for
violation of the terms and conditions in regard to purchase
centre, it is the Bihar Sugarcane (Regulation of Supply and
Purchase) Act, 1981 which would apply and not general Acts
covering the subject.
7. He further submits that for prosecution of any
accused for offence punishable under Section 52 of the
Sugarcane Act, sanction for prosecution of the officials is
required under Section 53 of the Act. But there is no sanction
obtained by the Complainant against the accused persons.
8. He also submits that as per the alleged facts and
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
circumstances, it is the company, Vishnu Sugar Mill Limited
which has violated the provisions of the Act but Vishnu Sugar
Mill Limited is not impleaded as an accused. It is the officials of
this company who have been impleaded as accused. The first
accused is the Managing Director of the company, whereas the
second accused is the Chief Cane Manager, and accused no.3 is
the incharge of chaumukha purchase centre, whereas accused
no. 4 is not alleged to be holding any office in the company. He
submits that it is settled position of law that if the offender is a
company, the complaint without impleading the company as
accused, is not maintainable. Moreover, unless there is provision
of vicarious liability for any office bearers of the company in the
Act under which penal provision is provided, no office bearers
can be prosecuted for vicarious liability of the company. Even,
in case of vicarious liability, there is requirement of allegation of
specific role played by the office bearers. Moreover, for
prosecution of the officials, sanction is also required from the
competent authority. But in the case on hand, no sanction has
been obtained for prosecution of the office bearers of the
company, nor any specific role on their part has been alleged.
9. Hence, it is submitted that the complaint was liable
to be dismissed. Therefore, the impugned order is abuse of the
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
process of the Court and liable to be set aside by this Court
under Section 482 Cr.PC.
10. In the case on hand, I find that cognizance has
been taken under Sections 264, 265, 266, 418, 420 and 379/120
of the Indian Penal Code. Sections 264, 265 and 266 relate with
offences relating to weight and measure, whereas Sections 418
and 420 relate to cheating, whereas Section 379 deals with theft
under IPC. However, cognizance of such offence under IPC has
been taken in the factual background of defective measures of
weight by the purchase centre of the Vishnu Sugar Mills,
Chaumukha. The sum and substance of the allegation against
the sugar mill is that on account of defective measures of
weight, the purchase centre underweighed the sugarcanes and
hence, the farmer/complainant was cheated of certain portion of
sugarcanes sold to the purchase centre. There is also allegation
of non-payment of the sugarcane price.
11. Here it is pertinent to point out that there is
specific enactment, namely, Bihar Sugar Cane (Regulation of
Supply and Purchase) Act, 1981 dealing with the situation as
alleged by the complainant/farmer. In this Act, there are specific
provisions to ensure proper maintenance of purchase centre as
well as measures of weight and payment of sugarcane to the
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
farmers Under Section 39 of the Act, there is clear provision for
the occupier of the every factory to ensure correct weighment of
sugarcane purchased at the place of purchase. Section 43 of the
Act also provides for payment of price of sugarcane to the
farmers selling their sugarcanes to the purchase centre. In
violation of any statutory provisions of the Act, there is penal
provision under Section 52 of the Act providing for prosecution
of the company as well as the officials with sanction of the
Competent Authority under Section 53 of the Act. It is settled
principle of law that if there is a special enactment dealing with
the particular subject, it would prevail over general Act. As
such, in the alleged facts and circumstances, it is Section 52 of
the Bihar Sugar Cane (Regulation of Supply and Purchase) Act,
1981 which gets attracted and not the provisions of the Indian
Penal Code. Under such facts and circumstances, the learned
Magistrate should have taken cognizance under Section 52 of
the Bihar Sugar Cane (Regulation of Supply and Purchase) Act,
1981 and not under IPC.
12. But it is also relevant to note that as per the
allegation the main accused is Vishnu Sugar Mills and it is
settled principle of law that when allegation is made against a
company, the company has to be impleaded as an accused as
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
this Court has held in C.L. Shukla Vs. State of Bihar 2024
SCC Online Pat 856 after referring to various judgments. In
Sharad Kumar Sanghi Vs. Sangita Rane, (2015) 12 SCC
781 , held that the Managing Director of the company was made
accused, whereas the company was not in the array of the
accused. In that case, Hon'ble Supreme Court held that without
making the company as an accused, proceeding against the
Managing Director cannot continue.
13. Moreover, for prosecution under Section 52 of
Bihar Sugar Cane (Regulation of Supply and Purchase) Act,
1981, sanction for prosecution is also required under Section 53
of the Act. But in the case on hand, no sanction from the
Competent Authority has been obtained by the prosecution.
14. The impugned order taking cognizance of offence
punishable under the IPC against the Petitionersis not
sustainable also in view of settled position of law that if the
allegation is against the company, the officials of the company
can be prosecuted only if there is statutory provisions for
vicarious liability of the officials of the company and there must
be allegation of active role played by such officers with criminal
intent, as this Court has held in C.L. Shukla case (supra) after
referring to relevant judgments. In Sunil Bharti Mittal v. CBI,
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
[(2015) 4 SCC 609] , Hon'ble Supreme Court has clearly held
that when a company is the offender, vicarious liability of the
Directors cannot be imputed automatically in the absence of any
statutory provisions to this effect. But learned Magistrate has
not taken note of the fact that there is no statutory provisions
under the IPC for vicarious liability. Sections 120B, 34 and 149
IPC provide for joint liability under certain circumstances. But
they do not provide for vicarious liability of any officials of the
company for offence committed by a company. In Maksud
Saiyed Vs. State of Gujarat, [(2008) 5 SCC 668], Hon'ble
Supreme Court has clearly held the Indian 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. Hence, cognizance of offence
punishable under IPC against the officials of the company is
also not sustainable in view of such legal position.
15. In a celebrated Judgment of the State of Haryana
Vs. Bhajan Lal [1992 Suppl (1) SCC 335, Hon'ble Supreme
Court has held, amongst other things, that if there is an express
legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings and/or
Patna High Court CR. MISC. No.35479 of 2016 dt.06-08-2024
where there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the
aggrieved party, the inherent power as provided under Section
482 Cr.PC may be invoked.
16. In view of the aforesaid facts and circumstances,
the impugned order is not sustainable in the eye. It is an abuse
of the process of the Court of law and liable to be quashed and
set aside under Section 482 Cr.PC.
17. Accordingly, the present petition is allowed. The
impugned order is quashed and set aside.
(Jitendra Kumar, J.)
Chandan/Shoaib/
ravishankar/S.ali
AFR/NAFR AFR
CAV DATE NA
Uploading Date 09.08.2024
Transmission Date 09.08.2024.
