JUDGMENT
1. Heard Shri Manohar, learned Senior Counsel for the
petitioners, and Mrs. Jog, Shri Jichkar, Shri Loney,
Shri Dhote and Shri Patel, learned Additional Public
Prosecutors for the respondent State.
2. In all these matters, the accused/Directors are of
M/s. Brooke Bond Lipton India Limited, which is
amalgamated with Hindustan Lever Limited with effect
from 21.3.1997. The sample of product manufactured by
the Company found to be adulterated is also the same,
namely, “Kissan Mixed Fruit Jam”. The Company
prosecuted is also the same, i.e. M/s. Brooke Bond
Lipton India Limited except in Criminal Application No.
669/2000 where Company, which is prosecuted is Hindustan
Lever Limited and product is “Anik Ghee”. The
allegations against the accused/Directors made in the
complaints are identical in nature and process is issued
by the Magistrates in all these cases for contravention
of provisions of Prevention of Food Adulteration Act,
1954 and Rules framed thereunder. Therefore, all these
matters are heard together and disposed of by the common
judgment.
3. These proceedings are directed against the orders
passed by the Magistrates whereby whereby process is
issued in the complaints filed by the respondent State
alleging violation of provisions of Prevention of Food
Adulteration Act, 1954 (hereinafter referred to as “the
Act”) against the petitioners.
4. Shri Manohar, learned Senior Counsel for the
petitioners, submits that the petitioners in Criminal
Writ Petition No. 245/1998, as on 1.10.1996, were
Directors of Board of Brooke Bond Lipton (India)
Limited, which was a Public Limited Company registered
under the provisions of Companies Act, 1956 having its
registered Office at Calcutta. Under the scheme of
amalgamation sanctioned by the High Court of Calcutta
and Bombay, the said Company Brooke Bond Lipton (India)
Limited was allowed to be amalgamated with Hindustan
Lever Limited with effect from 21.3.1997 and Brooke Bond
India Limited ceased to be a legal entity from the said
date.
5. It is contended by learned Senior Counsel Shri
Manohar that in the year 1997, Brooke Bond India
Limited, was inter alia engaged in business of
manufacture and distribution of products, such as foods,
beverages, oil and dairy fats including products under
Kissan range such as mixed fruit jam. Being a large
organization and for efficient and effective operation,
business is structured into various Divisions/
Departments, each headed by the senior Official, who is
responsible for conduct of business for the job/area
assigned to him. For sale and distribution business of
the Company in the State of Maharashtra, the Company has
nominated Shri Suresh Narayanan, Branch Manager as the
person responsible.
6. On 29.1.1997, Shri T.M. Darkar, Food Inspector
visited the establishment of M/s. Jain Bhandu, Chitra
Chowk, Amravati and from the said establishment, drew
samples of product “Kissan Mixed Fruit Jam” for the
purpose of analysis under the provisions of the Act.
The labels of the said products declared them to be
packaged in the month of December 1996 with net weight
500 grams, batch No. 60412-A-2 and manufactured by the
Company Brooke Bond Lipton India Limited.
7. It is contended by the learned Senior Counsel for
the petitioners that the Food Inspector thereafter
forwarded those samples to Public Analyst, Akola for
necessary analysis of the product in question. The
report of Public Analyst dated 10.3.1997 declared the
product as being in violation of provisions of the Act
having contained sulphur dioxide in excess of prescribed
limit. On the basis of the report of the Public
Analyst, Food Inspector has conducted investigation in
order to ascertain details in regard to manufacturer,
distributor and retailer for taking further action
against them by launching prosecution under the
provisions of the Act. The Food Inspector obtained
information from the Retailer in respect of source of
purchase of the product in question and it was found
that product was purchased from the Premier Agencies,
Amravati and it was further noticed that Premier
Agencies, Amravati purchased the product from M/s.
Universal Clearing Agency, Nagpur, which was Agent for
the Company Brooke Bond Lipton India Limited. The name
of the Company Brooke Bond Lipton India Limited is also
declared on the lable of Kissan Jam as manufacturer of
the said product. It is contended by the learned
Counsel for the petitioners that the Food Inspector was
given the requisite information sought by him and was
informed that the Company in terms of the provisions of
the Act had appointed a nominee for conduct of its
business in the State of Maharashtra. The name of the
nominee was also informed, i.e. Suresh Narayanan. The
Food Inspector has acknowledged receipt of copy of
nomination for Shri Suresh Narayanan vide his letter
dated 8.1.1998. The said nomination form was valid in
terms of Section 17(3) of the Act at the relevant time
and establishment was in existence on 29.1.1997 when the
samples of the product in question were taken by the
Food Inspector as referred to hereinabove.
8. The learned Senior Counsel for the petitioner
further submits that in terms of Section 20, the
respondent no.1 sought and obtained consent from the
Joint Commissioner, Food and Products Administration,
Amravati Shri S.S. Urunkar on 8.5.1998. Shri Urankar
at the relevant time was the appropriate Authority for
grant of sanction for both the regions, i.e. Akola and
Amravati and, therefore, he on 6.5.1998 granted consent
for prosecution in regard to a similar offence for
adulteration of “Kissan Mixed Fruit Jam” sampled from
Akot and Akola. The prosecution has been initiated
before the Court of Chief Judicial Magistrate, Amravati
being Case No. 76/98. The prosecution has chosen only
to make members of the Board of Directors as accused and
did not launch any prosecution against nominee of the
Company.
9. It is further contended by learned Senior Counsel
Shri Manohar that the complaints being in violation of
provisions of Section 17(1) of the Act, the orders of
issuance of process against the present Directors cannot
be sustained. It is vehemently contended that even
assuming that there is no valid nomination (though not
accepting the same), in the absence of any specific
averment in the complaints that the Directors were
in-charge of conduct of business of the Company and were
also responsible for day to day administration of the
Company or that offence was committed with the consent
or connivance of the Directors or due to any negligence
on their part, no offence is made out against the
Directors of the Company.
10. It is further contended by the learned Senior
Counsel for the petitioners that the Magistrates have
failed to appreciate that the complaints are abuse of
process of Court as much as no offence has been
disclosed against the above referred Directors of the
Company and they are made accused merely on the
allegations that they were on the Board of Directors of
the Company. It is further contended that recitals in
the complaints and allegations contained therein as well
as consent granted by the competent Authority on the
basis of which complaints are filed, do not disclose any
allegation or nothing is on the record to connect the
Directors of the Company with the offence alleged to
have been committed under the provisions of the Act.
There are no allegations in the complaints in respect of
conduct, consent or negligence made or attributable
against any of the Directors (accused) and, therefore,
complaints are misconceived and orders of issuance of
process passed by the Magistrates are bad in law.
11. It is also contended by learned Senior Counsel
Shri Manohar that the Magistrates failed to appreciate
that the Directors of the Company are made accused
solely because at the relevant time they were on the
Board of Directors of the Company. The complaints are
totally silent whether offence has been committed with
the consent or connivance of these Directors or due to
any negligence on the part of these Directors.
Similarly, there is not even a whisper in the complaints
that any one of these Directors or all of them were
responsible for conduct of business of the Company. It
is further contended that in the absence of these
averments in the complaints and without adding or
subtracting anything in the complaints, if same are read
as they are, no offence is made out against the
Directors under the provisions of the Act.
12. Learned Senior Counsel Shri Manohar further
submits that in order to attract provisions of Section
17(1)(ii) or 17(4), the complaints must clearly allege
and disclose that such persons or Directors, as the case
may be, at the relevant time, were in-charge of conduct
of business of the Company or that the offence was
committed with their consent, connivance or same was
attributable to any neglect on their part. The
complaints are totally silent in this regard and in the
absence of such averments in the complaints, no offence
is made out against the Directors of the Company. Even
the documents filed with the complaints do not disclose
any case against the Directors for the offence in
question. On the contrary, it is revealed that
petitioners are joined as accused only because they
happened to be Directors of the Company at the relevant
time. The Magistrates, therefore, erred in law in
issuing process against the petitioners as well as other
Directors of the Company.
13. It is further contended by learned Senior Counsel
Shri Manohar that recitals in the complaints do not
disclose any offence. In such situation, this Court may
exercise power under Section 482 of Code of Criminal
Procedure and dismiss the complaints. It is contended
that this is a fit case where this Court is expected to
exercise power under Section 482 of the Code of Criminal
Procedure and quash and set aside the impugned orders as
the complaints do not disclose any offence against the
Directors. The allegations in the complaints against
the above referred Directors are in particular paras and
they are identical to para (20) of the complaint in
Criminal Writ Petition No. 245/198, which reads
thus :
“That, the complainant further charges
accused nos. 8 to 20 for committing
offence by manufacturing, for sale,
distributing for sale, stocking for sale
and selling adulterated food article,
namely, mixed fruit jam Kissan in
contravention of provisions of Section
17(i)17(3) read with Section 2(ia)(a) punishable
under Section 16(1)(a)(ii), Section 7(i)
read with Section 2(ia)(k) punishable
under Section 16(1)(a)(i), Section 7(v)
read with Rule 55(6) punishable under
Section 16(1)(a)(ii) read with Section 17
of the Prevention of Adulteration Act,
1954 and rules thereunder.”
14. It is contended that except the allegations in para 20
of the aforesaid complaint, there are no other averments
or allegations in the entire complaint against the above
referred Directors of the Company, who are sought to be
connected with the offence in question and these
allegations are totally short of connecting the above
referred accused/Directors with the crime in question
and, therefore, this is a fit case where this Court may
exercise power under Section 482 of Code of Criminal
Procedure and quash and set aside the impugned orders of
issuance of process passed by the Magistrates against
the petitioners. It is canvassed that there is no
alternate remedy available to the petitioners for
recalling of process in view of law laid down by the
Apex Court in the Case of Rajendra v. Uttam (1993 (3)
SCC 134) wherein the Apex Court has held that order of
issuance of process is not an interlocotury order, but a
final order and, therefore, Magistrate will not have any
power to review his own order, which is final in nature
as the Code of Criminal Procedure does not confer any
power of review on the criminal Court. It is contended
by the learned Senior Counsel for the petitioners that
in the circumstances, the impugned orders of issuance of
process and complaints need to be quashed and set aside.
The last contention canvassed by learned Senior Counsel
Shri Manohar is that other Directors of the Company,
such as G.V.Krishna Rao, S.K. Sinha, David R. Thyman,
Udipi Mahesh Rao and Damodaran Nair are also similarly
situated and allegations against them in the complaints
are also identical in nature. Those allegations in the
complaints do not make out any offence, which is charged
against these Directors and, therefore, orders of
issuance of process issued by the Magistrates in respect
of these Directors also may be quashed and set aside.
14)In order to substantiate above contentions,
reliance is placed by learned Senior Counsel Shri
Manohar on the judgments of Apex Court and High Courts
in Municipal Corporation of Delhi v. Ram Kishan Rohtagi
and others , Pepsi Foods Ltd. v.
Special Judicial Magistrate and others , State of Haryana v. Brij Lal Mittal and others
, R. Banerjee and others v. H.D.
Dubey and others , Ashok Chaturvedi
and others v. Shitul H. Chanchani and another , and G. Sagar Suri and another v. State
of U.P. and others (2000(1) SCALE 271).
15. Mrs. Jog, learned Additional Public Prosecutor
for the respondent State, submits that in Criminal Writ
Petition No. 245/1998, on 29.1.1997, the Food Inspector
had drawn samples of mixed fruit jam, which was
manufactured and marketed by Brooke Bond Lipton India
Limited. This food product was reported to be
adulterated and on receiving such report, the Food
Inspector started investigation for collecting
information regarding Company in question. During the
course of investigation, it was found that there is no
person nominated by the Company as per Section
17(1)(a)(i) of the Act. In the absence of that,
persons, who can be prosecuted in regard to offence
against the Company, are contemplated in the provisions
of Section 17(i)(a)(ii) read with Section 17(4) of the
Act. In the instant case, since nobody was nominated by
the Company, the Company was asked by various letters by
the Food Inspector to provide information regarding
names and addresses of the Directors, who are
responsible for conduct of business of the Company.
16. It is contended by the learned Additional Public
Prosecutor that though necessary information was sought
from the Company by issuing letters by the Food
Inspector, no reply was received from the Company.
Therefore, there was no alternative for the Food
Inspector but to write to the Deputy Director,
Department of Food, who was requested to furnish details
in this regard, i.e. names of licence holders, who were
responsible on a particular date for conducting business
of the Company. The Deputy Director vide communication
dated 6.2.1998 gave relevant information. He has
forwarded the list of Directors of the Company. It is
contended that the Deputy Director did not provide
material information as to who were in-charge and
responsible for conduct of business of the Company at
the relevant time and even the name of Managing Director
was not informed by the concerned Authority. It is
submitted that on the basis of whatever information the
prosecution had, the complaints were filed and the
petitioners, who were at the relevant time Directors of
the Company, were made accused in the present
prosecution since the offences were committed by the
Company in view of provisions of Section 17 of the Act.
It is further canvassed by the learned Additional Public
Prosecutor that since there was no proper nomination,
the Food Inspector noticed during the course of
investigation that the petitioners were the persons
responsible and in-charge of the Company and, therefore,
they were made accused in the complaints. The documents
accompanying the complaints clearly substantiate the
allegations in the complaints including sanction given
by the Competent Authority.
17. It is further submitted by the learned Additional
Public Prosecutor that the petitioners have invoked
inherent powers of this Court under Section 482 of Code
of Criminal Procedure. However, this power is required
to be exercised by this Court in the exceptional
circumstances. Whether any offence at this stage has
been made out or whether accused are liable to be
convicted or defence available to the accused cannot be
considered at this interlocutory stage. There is a
power with the Magistrate to drop the proceedings if he
is satisfied on considering the complaint that there is
no offence for which accused could be tried. It is
contended that under Section 7(i) of the Act, no person
shall himself or by any person on his behalf,
manufacture for sale or store or distribute any
adulterated food. In the instant case, the Company in
question is a manufacturer and the petitioners/accused
are responsible for conduct of the business and are
in-charge of the Company as per report of the Deputy
Director, Food Department and, therefore, orders of
issuance of process are sustainable in law and power
under Section 482 of the Code of Criminal Procedure may
not be exercised at this stage. It is contended that
judgment of the Apex Court in P. Raj Rathinam v. State
of Maharashtra (2000 (10) SCC 2529) is relevant for this
purpose wherein the Supreme Court in a similar situation
though arising out of offence under Section 141 of
Negotiable Instruments Act, observed that such situation
should be left to the trial Court concerned to consider
at the time of framing of charge instead of quashing the
complaint and issuance of process under Section 482 of
the Code of Criminal Procedure.
18. It is alternatively contended by the learned
Additional Public Proxsecutor that if this Court comes
to the conclusion that the proceedings have to be
dropped, in that event, respondent prays that issue of
nomination, whether it is valid or not, may be kept open
and subsequently if trial Court at the time of recording
of pre-charge evidence comes to the conclusion that
accused are guilty, liberty to take cognizance against
petitioners may be granted.
19. The last limb of argument of the learned
Additional Public Prosecutor is that the case of the
Directors of the Company, who are not arrayed as
accused, may not be considered since they are not before
this Court. The issue can be gone into only when they
personally initiate the proceedings for quashing of the
complaints and orders of issuance of process. In the
present case, the case of those Directors, who are not
parties in the present proceedings, cannot be
considered.
20. I have given anxious thought to the various
contentions canvassed by the learned respective Counsel
for the parties and perused the relevant provisions of
the Act as well as judgments of the Supreme Court and
High Court referred to hereinabove. Before I consider
the issue on merits, there are certain undisputed
aspects of the matter, which need to be mentioned at the
outset.
21. In Criminal Writ Petition No. 245/98, it is not
in dispute that at the relevant time, petitioner nos. 1
to 8 and 11 were Directors of the Company, which was
then known as Brooke Bond Lipton India Limited and the
said Company with effect from 21.3.1997 stood
amalgamated with Hindustan Lever Limited and ceased to
be a legal entity. On 29.1.1997 the Food Inspector
visited the establishment of Ramesh Shankar Jain, i.e.
M/s. Jain Bandhu, Chitra Chauk, Amravati. The product
from which sample was drawn was “Kissan Mixed Fruit
Jam”. The said product having batch No. 60412-A-2, net
weight 500 grams and date of packaging as December 1996
was purchased. The sample was forwarded to the Public
Analyst on 30.1.1997. The report of Public Analyst was
received on 10.3.1997. The Public Analyst opined that
sample of “Kissan Mixed Fruit Jam” contains sulphur
dioxide 164 ppm, which contravenes Rule 55(6) of the
Prevention of Food Adulteration Rules, 1955. The Food
Inspector sought consent for prosecution, which was
granted on 8.5.1998 by the competent Authority, i.e.
Joint Commissioner of Foods and Drugs Administration,
Amravati. The complaint was filed on 18.8.1998 and on
the basis of the said complaint, the Chief Judicial
Magistrate, Amravati passed the impugned order of
issuance of process on 18.8.1998 against petitioners for
contravention of provisions of Section 7(i) read with
Section 2(ia)(a) punishable under Section 16(1)(a)(ii),
Section 7(i) read with Section 2(ia)(k) punishable under
Section 16(1)(a)(i) and Section 7(v) read with Rule
55(6) punishable under Section 16(1)(a)(ii) read with
Section 17 of the Act and validity of same is called in
question in these proceedings.
22. As far as Criminal Writ Petition No. 246/1998 is
concerned, undisputed facts are as follows :
The Food Inspector on 3.1.1997 visited M/s.
Prerna Traders situated at Akot, District Akola. The
sample was taken from the product “Kissan Mixed Fruit
Jam”, which was purchased from M/s. Brooke Bond Lipton
India Limited through the clearing Agent M/s. Universal
Clearing Agencies, Mishra Godown, Katol Road, Fetri,
Nagpur. The batch number of product is 611009-A-3 and
same was packaged in September 1996. The net weight of
the product was 200 grams. The same was forwarded to
the Public Analyst on 4.1.1997. The report dated
12.2.1997 of the Public Analyst shows that the sample
contains sulphur di-oxide more than the permissible
limit, which is in contravention of Rule 55 of the
Prevention of Food Adulteration Rules, 1955. The
investigation was carried out by the Food Inspector and
necessary information was obtained from the Company in
question. The consent for prosecution was granted by
the competent Authority, i.e. Joint Commissioner of
Foods and Drugs Administration, Amravati on 6.5.1998.
The complaint was filed on 18.8.1998. On the said
complaint, Judicial Magistrate, First Class, Akot passed
the impugned order of issuance of process on 18.8.1998
for contravention of provisions of Section 7(i) read
with Sections 2(ia)(a) and 2(ia)(k) punishable under
Section 16(1)(a)(i) and Section 7(v) read with Rule
55(6) punishable under Section 16(1)(a)(i) of the Act
and validity of same is called in question in these
proceedings. The allegations made against the Directors
(accused) of the Company are identical in nature as in
para (20) of Criminal Writ Petition No. 245/1998.
23. As far as Criminal Writ Petition No. 49/1999 is
concerned, undisputed facts are as follows :
The Food Inspector on 30.1.1997 visited M/s.
Jayantilal Dwarkadas situated at Akola. The sample was
taken from the product “Kissan Mixed Fruit Jam”, which
was purchased from M/s. Brooke Bond Lipton India
Limited through the clearing Agent M/s. Universal
Clearing Agencies, Mishra Godown, Katol Road, Fetri,
Nagpur. The batch number of product is 60412-A-2 and
same was packaged in December 1996. The net weight of
the product was 500 grams. The same was forwarded to
the Public Analyst on 31.1.1997. The report dated
10.3.1997 of the Public Analyst shows that the sample
contains sulphur di-oxide more than the permissible
limit, which is in contravention of Rule 55 of the
Prevention of Food Adulteration Rules, 1955. The
investigation was carried out by the Food Inspector.
Necessary information was obtained from the Company in
question. The consent for prosecution was granted by
the competent Authority, i.e. Joint Commissioner of
Foods and Drugs Administration, Amravati on 21.12.1998.
The complaint was filed on 6.1.1999. On the said
complaint, Chief Judicial Magistrate, Akola passed the
impugned order of issuance of process on 6.1.1999 for
contravention of provisions of Section 7(i) read with
Section 2(ia)(a) punishable under Section 16(1)(a)(i),
Section 7(i) read with Section 2(ia)(k) punishable under
Section 16(1)(a)(i) and Section 7(v) read with Rule
55(6) punishable under Section 16(1)(a)(ii) read with
Section 17 of the Act and validity of same is called in
question in these proceedings. The allegations made
against the Directors (accused) of the Company are
identical in nature as in para (20) of Criminal Writ
Petition No. 245/1998.
24. As far as Criminal Writ Petition No. 50/1999 is
concerned, undisputed facts are as follows :
The Food Inspector on 16.10.1996 visited M/s.
M/s. New Soni Provision situated at Akola. The sample
was taken from the product “Kissan Mixed Fruit Jam”,
which was purchased from M/s. Brooke Bond Lipton India
Limited through the clearing Agent M/s. Universal
Clearing Agencies, Mishra Godown, Katol Road, Fetri,
Nagpur. The batch number of product is 62407-A-2 and
same was packaged in July 1996. The net weight of the
product was 500 grams. The same was forwarded to the
Public Analyst on 17.10.1996. The report dated
18.11.1997 of the Public Analyst shows that the sample
does not conform to the standards of Jam as per
Prevention of Food Adulteration Rules, 1955 and
contravenes Rule 54 of the said Rules. The
investigation was carried out by the Food Inspector and
necessary information was obtained from the Company in
question. The consent for prosecution was granted by
the competent Authority, i.e. Joint Commissioner of
Foods and Drugs Administration, Amravati on 14.10.1998.
The complaint was filed on 15.1.1999. On the said
complaint, Chief Judicial Magistrate, Akola passed the
impugned order of issuance of process on 15.1.1999 for
contravention of provisions of Section 7(i) read with
Section 2(ia)(a)(m) and (k) and Section 7(v) read with
Rule 54 punishable under Section 16 and 17 of the Act
and validity of same is called in question in these
proceedings. The allegations made against the Directors
(accused) of the Company are identical in nature as in
para (20) of Criminal Writ Petition No. 245/1998.
25. As far as Criminal Writ Petition No. 51/1999 is
concerned, undisputed facts are as follows :
The Food Inspector on 13.12.1996 visited M/s.
Kailash Traders, Akot Stand, Akola. The sample was
taken from the product “Kissan Mixed Fruit Jam”, which
was purchased from M/s. Brooke Bond Lipton India
Limited through the clearing Agent M/s. Universal
Clearing Agencies, Mishra Godown, Katol Road, Fetri,
Nagpur. The batch number of product is 60711-A-1 and
same was packaged in November 1996. The net weight of
the product was 500 grams. The same was forwarded to
the Public Analyst on 20.2.1997. The report dated
26.3.1997 of the Public Analyst shows that the sample
contains sulphur di-oxide more than 40.00 parts per
million, which is in contravention of Rule 55 of the
Prevention of Food Adulteration Rules, 1955. The
investigation was carried out by the Food Inspector and
necessary information was obtained from the Company in
question. The consent for prosecution was granted by
the competent Authority, i.e. Joint Commissioner of
Foods and Drugs Administration, Amravati on 14.10.1998.
The complaint was filed on 4.1.1999. On the said
complaint, Chief Judicial Magistrate, Akola passed the
impugned order of issuance of process on 4.1.1999 for
contravention of provisions of Section 7(i) read with
Section 2(ia)(a) and Section 7(i) read with Section
2(ia)(k) and Section 7(v) read with Rule 55(6)
punishable under Sections 16 and 17 of the Act and
validity of same is called in question in these
proceedings. The allegations made against the Directors
(accused) of the Company are identical in nature as in
para (20) of Criminal Writ Petition No. 245/1998.
26. As far as Criminal Application No. 669/2000 is
concerned, undisputed facts are as follows :
The Food Inspector on 25.3.1998 visited M/s.
Durga Provision Stores, Akola. The sample was taken
from the product “Anik Ghee”, which was purchased from
M/s. Hindustan Lever Limited through the clearing Agent
M/s. Universal Clearing Agencies, Mishra Godown, Katol
Road, Fetri, Nagpur. The batch number of product is 15
A/14 and same was packaged in January 1998. The net
weight of the product was 200 grams. The same was
forwarded to the Public Analyst on 26.3.1998. The
report dated 4.5.1998 of the Public Analyst shows that
the sample contains Butyre-refractometer reading more
than and Reichert value less than the standard and same
does not conform to standard of ghee as per Prevention
of Food Adulteration Rules, 1955. The investigation was
carried out by the Food Inspector and necessary
information was obtained from the Company in question.
The consent for prosecution was granted by the competent
Authority, i.e. Joint Commissioner of Foods and Drugs
Administration, Amravati on 24.12.1999. The complaint
was filed on 24.3.2000. On the said complaint, Chief
Judicial Magistrate, Akola passed the impugned order of
issuance of process on 24.3.2000 for contravention of
provisions of Section 7(i) read with Section 2(ia)(a)
punishable under Section 16(1)(a)(ii) and Section 7(i)
read with Section 2(ia)(m) punishable under Sections
16(1)(a)(i) of the Act and validity of same is called in
question in these proceedings. The allegations made
against the Directors (accused) of the Company are
identical in nature as in para (20) of Criminal Writ
Petition No. 245/1998.
27 .As far as Criminal Application No. 1282/1999 is
concerned, undisputed facts are as follows :
The Food Inspector on 19.7.1996 visited M/s.
Mubarak Trading Company situated at Yavatmal. The
sample was taken from the product “Kissan Mixed Fruit
Jam”, which was purchased from M/s. Brooke Bond Lipton
India Limited through the clearing Agent M/s. Universal
Clearing Agencies, Mishra Godown, Katol Road, Fetri,
Nagpur. The batch number of product is 60201-A-1 and
same was packaged in January 1996. The net weight of
the product was 500 grams. The same was forwarded to
the Public Analyst on 20.7.1996. The report dated
23.8.1996 of the Public Analyst shows that the sample
contains sulphur di-oxide more than the permissible
limit, which is in contravention of Rule 55(6) of the
Prevention of Food Adulteration Rules, 1955. The
investigation was carried out by the Food Inspector and
necessary information was obtained from the Company in
question. The consent for prosecution was granted by
the competent Authority, i.e. Joint Commissioner of
Foods and Drugs Administration, Amravati on 12.5.1999.
The complaint was filed on 9.6.1999. On the said
complaint, Chief Judicial Magistrate, Yavatmal passed
the impugned order of issuance of process on 9.6.1999
for contravention of provisions of Section 7(i) read
with Section 2(ia)(a) punishable under Section
16(1)(a)(i), Section 7(v) read with Rules 54 and 55(6)
punishable under punishable under Section 16(1)(a)(ii)
and Section 17 of the Act and validity of same is called
in question in these proceedings. The allegations made
against the Directors (accused) of the Company are
identical in nature as in para (20) of Criminal Writ
Petition No. 245/1998.
28. As far as Criminal Application No. 1283/1999 is
concerned, undisputed facts are as follows :
The Food Inspector on 21.5.1996 visited M/s.
Girish Agencies, Pusad. The sample was taken from the
product “Kissan Mixed Fruit Jam”, which was purchased
from M/s. Brooke Bond Lipton India Limited through the
clearing Agent M/s. Pacific Clearing and Forwarding
Agent, Parlok, 22/2, near Railway Overbridge, Pimpri,
Pune. The batch number of the product is 50612-A-1 and
same was packaged in December 1995. The net weight of
the product was 500 grams. The same was forwarded to
the Public Analyst on 22.5.1996. The report dated
20.6.1996 of the Public Analyst shows that the sample
contains sulphur di-oxide more than the permissible
limit and does not conform to the standards of Jam,
which is in contravention of Rule 55 of the Prevention
of Food Adulteration Rules, 1955. The investigation was
carried out by the Food Inspector and necessary
information was obtained from the Company in question.
The consent for prosecution was granted by the competent
Authority, i.e. Joint Commissioner of Foods and Drugs
Administration, Amravati on 27.5.1999. The complaint
was filed on 17.6.1999. On the said complaint, Judicial
Magistrate, First Class, Pusad passed the impugned order
of issuance of process on 17.6.1999 for contravention of
provisions of Section 7(i) read with Section 2(ia)(a)
punishable under Section 16(1)(a)(ii), Section 7(v) read
with Rules 54 and 55(6) punishable under punishable
under Section 16(1)(a)(ii) and Section 17 of the Act and
validity of same is called in question in these
proceedings. The allegations made against the Directors
(accused) of the Company are identical in nature as in
para (20) of Criminal Writ Petition No. 245/1998.
29. It will be appropriate at this stage to consider
whether inherent powers of this Court under Section 482
of the Code of Criminal Procedure can be invoked by the
petitioners in a situation like this and whether this
Court is entitled to exercise the same for the purpose
of quashing of complaint as well as order of issuance of
process. It is no doubt true that ordinarily the High
Court will not interfere with the criminal proceedings
when the facts alleged in the complaint, if they are
accepted to be correct at their face value, make out a
prima facie case against the accused for the offences
charged with. It is also well settled that this Court
needs to exercise self restraint in interfering with the
criminal proceedings at the initial stage. However,
when the complaint if it is accepted to be correct on
its face value, does not make out an offence the accused
charged with, then in order to prevent abuse of process
of Court, this Court is entitled to exercise power under
Section 482 of Code of Criminal Procedure. Similarly
when there are no averments in the complaint to connect
the accused with the offence they are charged, the
inherent powers of this Court can be exercised to
prevent mis-carriage of justice. Adverting to the
present proceedings under Section 482 of Code of
Criminal Procedure, it needs to be seen as to whether
there is any act committed by the Directors to draw an
inference that they could also be vicariously liable or
not for the commission of the offences and if on the
close scrutiny of the allegations in the complaint, it
is found that allegations and averments in the complaint
connect Directors with the offence, then the question of
exercising power under Section 482 of Code of Criminal
Procedure does not arise. However, if the allegations
are such that they do not make out any offence against
the Directors for which they are charged and still
process is issued by the Magistrate taking cognizance of
the offence, then allowing prosecution to continue would
amount to abuse of process of Court and in the situation
like this, this Court would be justified in exercising
power under Section 482 of Code of Criminal Procedure.
30. It is also necessary to keep in mind that when the
first information report is lodged under Section 154 of
Code of Criminal Procedure by the complainant in the
Police Station, the Police machinery is set in motion on
the basis of the same and it is after completion of such
investigation, charge-sheet is filed in the competent
criminal Court by the prosecution. In the case like
this, if the High Court is moved for quashing of the
first information report at the threshold under Section
482 of Code of Criminal Procedure, even before
prosecution is allowed to conduct investigation, the
situation would be different than the case in hand and
Court should be slow in exercising power under Section
482 in such circumstances. However, the case in hand
stands on a different pedestal where investigation is
carried out and conducted by the Investigating Officer,
i.e. Food Inspector prior to filing of the complaint in
the Court and, therefore, recitals/allegations/averments
in the complaint, if accepted as true and correct, at
least prima facie must connect the accused with the
crime in question. If it fails to make out any offence
against accused, then inherent powers of this Court can
be exercised for quashing of such proceedings. Section
482 is enacted and inserted in the Code of Criminal
Procedure for the purpose of preventing abuse of process
of Court and if it is brought to the notice of this
Court that forum of the criminal Court is being used for
abuse of process of Court, in such circumstances,
inherent power under Section 482, in my opinion, can
undoubtedly be exercised to prevent the same.
31. The Apex Court in the case of Ashok Chaturvedi and
others v. Shitul H. Chanchani and another had an occasion to consider this aspect and in
para (5) observed thus :
“But the question that yet remains for
consideration is whether allegations made
in the petition of complaint together with
statements made by the complainant and the
witnesses before the Magistrate taken on
their face value, do make the offence for
which Magistrate has taken cognizance of?
The learned Counsel for the respondent in
this connection had urged that accused had
a right to put this argument at the time
of framing of charges and, therefore, this
Court should not interfere with the order
of Magistrate taking cognizance at this
stage. This argument, however, does not
appeal to us inasmuch as merely because an
accused has a right to plead at the time
of framing of charges that there is no
sufficient material for such framing of
charges as provided in Section 245 of
Criminal Procedure Code, he is debarred
from approaching the Court even at the
earliest (sic earlier) point of time when
the Magistrate takes cognizance of the
offence and summons the accused to appear
to contend that the very issuance of order
of taking cognizance is invalid on the
ground that no offence can be said to have
been made out on the allegations made in
the complaint petition. It has been held
in a number of cases that power under
Section 482 has to be exercised sparingly
and in the interest of justice. But
allowing the criminal proceedings to
continue even where the allegations in the
complaint petition do not make out any
offence would be tantamount to an abuse of
process of Court and, therefore, there
cannot be any dispute that in such case,
power under Section 482 of Code can be
exercised.”
32. Similar view is expressed by the Apex Court in G.
Sagar Suri and another v. State of U.P. and others
(2000(1) SCALE 271). Para 7 of the said judgment reads
thus :
“It was submitted by Mr. Lalit, learned
Counsel for the second respondent, that
the appellants have already filed an
application in the Court of Additional
Judicial Magistrate for their discharge
and that this Court should not interfere
in the criminal proceedings, which are at
the threshold. We do not think that on
filing of any application for discharge,
High Court cannot exercise its
jurisdiction under Section 482 of the
Code. In this connection, reference may
be made to two decisions of this Court in
Pepsi Foods Ltd. and another v. Special
Judicial Magistrate and others and Ashok Chaturvedi and others
v. Shitul S. Chanchani and another wherein it has been
specifically held that though the
Magistrate trying a case has jurisdiction
to discharge the accused at any stage of
trial, if he considers the charge to be
groundless, but that does not mean that
the accused cannot approach the High Court
under Section 482 of the Code or Article
227 of the Constitution to have the
proceedings quashed against them when no
offence has been made out against them and
still why must they undergo the agony of
criminal trial.”
33. In view of the ratio laid down by the Apex Court
in the above referred cases, it is well settled that
inherent power under Section 482 can be invoked by the
accused in the appropriate case irrespective of other
factors and this Court can exercise the same in a
deserving case within parametres of law and, therefore,
the contentions canvassed by the learned Additional
Public Prosecutor in this regard are misconceived and
same are rejected.
34. Now coming to the factual aspect of the matter at
hand, the Company in question is prosecuted for
contravening the provisions of the Prevention of Food
Adulteration Act and Rules made thereunder. When the
offence is committed by the Company, then the persons
required to be prosecuted for such offence along with
Company are provided in Section 17 of the Act. Section
17 can be classified basically into two parts –
Where the offence under this Act has been committed by
the Company –
-the person if any, who has been nominated under
sub-section (2) of Section 17 to be in-charge of and
responsible to the Company for the conduct of business
of the Company shall be guilty of offence and shall be
liable to be proceeded with and punished accordingly.
– where no person has been so 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 business of the Company, shall be deemed to
be guilty of offence and shall be liable to be proceeded
against and punished accordingly as contemplated under
Section 17(1)(a)(i)(ii) of the Act.
In addition to persons referred hereinabove, the
Directors of the Company can also be proceeded against
and punished according to law. When an offence under
this Act has been committed by the Company and it is
proved that offence has been committed with the consent
or connivance of or is attributable to or any neglect on
the part of any Director, Manager, Secretary or other
Officers of the Company, such Directors and other
persons referred to shall be deemed to be guilty of that
offence and shall also be liable to be proceeded against
and punished accordingly as contemplated under
sub-section (4) of Section 17 of the Act. In the
instant case, sub-section (4) of Section 17 is relevant
for the purpose of deciding the controversy in issue.
35. Under the scheme of Section 17, when the offence
is committed by the Company, the person, who is
nominated under sub-section (2) of Section 17 would be a
person in-charge of and responsible to the Company for
conduct of business of the Company and can be proceeded
against and punished accordingly. However, in the
absence of any nomination by the Company, every person,
who at the time of commission of offence was in-charge
and responsible to the Company for conduct of business
of the Company can be proceeded against and punished
accordingly for the offence committed by the Company.
The person in-charge of and responsible for conduct of
business of the Company can be anybody including
Directors of the Company. However, it must be alleged
in the complaint in this regard in order to show at the
threshold as to who are persons in-charge of and
responsible for conduct of business of the Company. In
the absence of any allegations in the complaint, in a
given set of circumstances, it will not be possible to
connect the accused with the crime in question and if
the allegations in this regard are missing in the
complaint itself, then proving of those facts by
adducing evidence does not arise. In such
circumstances, it boils down to a situation where even
if the allegations in the complaint are accepted as they
are, without adding or subtracting anything from it, it
would not either connect the accused with crime in
question nor would make out even a prima facie case
against the accused and in such situation, it will not
be expedient to allow such prosecution to go on, which
would amount to abuse of process of the Court apart from
the fact that accused will have to undergo tremendous
agony and pain for such proceedings.
36. Under the scheme of Section 17 of the Act, there
are three categories of individuals, who can be
proceeded against and punished, if found guilty for the
offence committed by the Company. Those are person
nominated by the Company, person in-charge of and
responsible to conduct of business of the Company and
third is in addition to these two, any Director of the
Company, if it is proved that offence has been committed
with the consent or connivance of or is attributable to
any neglect on the part of such Directors. Similarly,
the person nominated may or may not be a Director of the
Company. He can be anybody whomsoever the Company feels
it appropriate to nominate. Similar is the case in
respect of person in-charge of and responsible to
conduct of business of the Company. However, by virtue
of sub-section (4) of Section 17, Directors of the
Company are also liable to be prosecuted in the
contingencies referred to in sub-section (4)
notwithstanding anything contained in sub-section
1(a)(i)(ii) of Section 17 of the Act. However, in order
to bring home guilt, averments, allegations or
statements to that extent in this regard must find place
in the complaint, which is filed by the Food Inspector
in the competent criminal Court after due investigation.
The complaint must prima facie demonstrate nexus between
Director and crime committed within the parametres of
sub-section (4) of Section 17. What is expected is at
least the allegations in the complaint that offence is
committed under the provisions of the Act with the
consent or connivance of such Director or same is
attributable to any neglect on the part of such
Director. In the absence of such allegations, it would
be not only difficult but impossible to hold even prima
facie that allegations in the complaint make out any
case against such Director.
37. It is, however, true that complaint cannot be said
to be encyclopedia of the facts alleged against the
accused. However, we cannot lose sight of the fact that
what is required to be proved by adducing evidence by
prosecution is the allegations made in the complaint
regarding material particulars of the prosecution case
against the accused. If all these material particulars
are not finding place in the complaint, then nothing
would remain to be proved against such person and it
will have to be held that for want of necessary
allegations, averments or statements in the complaint,
no offence is made out against the accused and allowing
such prosecution to continue would undoubtedly amount to
abuse of process of the Court.
38. Now coming to the factual allegations made in the
complaint against the petitioners/accused in Criminal
Writ Petition No. 245/1998, the same are only in para
(20) of the complaint, which are reproduced below :
“That, the complainant further charges
accused nos. 8 to 20 for committing
offence by manufacturing, for sale,
distributing for sale, stocking for sale
and selling adulterated food article,
namely, mixed fruit jam Kissan in
contravention of provisions of Section
7(i) read with Section 2(ia)(a) punishable
under Section 16(1)(a)(ii), Section 7(i)
read with Section 2(ia)(k) punishable
under Section 16(1)(a)(i), Section 7(v)
read with Rule 55(6) punishable under
Section 16(1)(a)(ii) read with Section 17
of the Prevention of Adulteration Act,
1954 and rules thereunder.”
It is not in dispute that allegations or averments made
by the complainant against the petitioners/Directors for
commission of offence under the provisions of the Act
are only in above referred para (20) of the complaint.
Plain reading of the recitals of para (20) of the
complaint would show that there are no specific or
remote allegations made by the complainant, which would
demonstrate any aspect of consent or connivance in
regard to commission of offence by the Directors of the
Company under the provisions of the Act nor same are
even remotely attributable to any neglect on their part.
The entire complaint including para (20) is totally
silent in this regard and there is not even a whisper
against the Directors in this respect. In the absence
thereof, there is no nexus demonstrated in the complaint
between these Directors and commission of offence under
the provisions of the Act. The allegations in para (20)
of the complaint, even if accepted in toto, in my
opinion, would not prima facie make out any offence
under the provisions of the Act muchless under Section 7
of the Act.
39. As observed hereinabove, in order to proceed
against the Directors, particularly in view of
sub-section (4) of Section 17, their prima facie
involvement and connection with the crime must appear in
the complaint in the form of allegations, statements or
averments and then question of proving them would come
at the stage of evidence. However, in the instant case,
as observed hereinabove, in the complaints, there are no
such allegations or averments and for want of such
allegations or averments, it is not possible even to
hold prima facie that nexus between the crime and
Directors is made out even if recitals in the complaints
are accepted. In a situation like this, it will not
only be futile to allow prosecution to continue and
proceed against the petitioners, but the same would be
abuse of process of Court, which requires interference
at the hands of this Court at this stage.
40. It is, however, true that even the documents which
are accompanied with the complaint, if disclose offence
against the accused, then the same will be enough in the
given set of circumstances to demonstrate nexus between
accused and crime in question and would even make out
prima facie case for the offence charged. However, in
the instant case, the only document which is relied upon
by the prosecution to demonstrate complicity of the
petitioners in the crime in question is letter dated
6.2.1998 issued by the Deputy Director, Department of
Food whereby the Deputy Director had simply informed the
prosecuting Authority that petitioners were Directors of
the Company at the relevant time and nothing more. The
fact of being Directors of the Company at the relevant
time is not disputed by the petitioners. However, this
document, in my opinion, is totally inadequate even to
demonstrate prima facie that offence in question is
committed with the consent or connivance of these
Directors or same can be attributable to any neglect on
their part. The documents accompanied with the
complaint, therefore, do not help the prosecution in
this regard.
41. The controversy in this regard is considered by
the Apex Court in the case of Municipal Corporation of
Delhi v. Ram Kishan Rohtagi and others . In para 10 thereof, the Supreme Court has observed
thus :
“It is, therefore, manifestly clear that
proceedings against an accused in the
initial stages can be quashed only if on
the face of the complaint or papers
accompanying the same, no offence is
constituted. In other words, the test is
that taking the allegations and the
complaint as they are, without adding or
subtracting anything, if no offence is
made out, then the High Court will be
justified in quashing the proceedings in
exercise of its powers under Section 482
of the present Code.”
Similarly inpara 15 of the judgment, the Apex Court
has observed thus :
“So far as the Manager is concerned, we
are satisfied that from the very nature of
his duties, it can be safely inferred that
he would undoubtedly be vicariously liable
for the offence, vicarious liability being
an incident of an offence under the Act.
So far as the Directors are concerned,
there is not even a whisper nor a shred of
evidence nor anything to show, apart from
the presumption drawn by the complainant,
that there is any act committed by the
Directors from which a reasonable
inference can be drawn that they could
also be vicariously liable. In these
circumstances, therefore, we find
ourselves in complete agreement with the
argument of the High Court that no case
against the Directors (accused nos. 4 to
7) has been made out ex facie on the
allegations made in the complaint and the
proceedings against them were rightly
quashed.”
Similarly, in para (8) of the judgment in the case of
State of Haryana v. Brij Lal Mittal and others , the Apex Court has observed thus :
“Nonetheless, we find that the impugned
judgment of the High Court has got to be
upheld for an altogether different reason.
Admittedly, the three respondents were
being prosecuted as directors of the
manufacturers with the aid of Section
34(1) of the Act, which reads as under :
OFFENCES BY COMPANIES :
(1) Where an offence under this Act has
been committed by a company, 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, as well as 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 or that he
exercised all due diligence to prevent the
commission of such offence.
It is thus seen that the vicarious
liability of a person for being prosecuted
for an offence committed under the Act by
a company arises if at the material time
he was in charge of and was also
responsible to the company for the conduct
of its business. Simply because a person
is a director of the company, it does not
necessarily mean that he fulfills both the
above requirements so as to make him
liable. Conversely, without being a
director a person can be in-charge of and
responsible to the company for the conduct
of its business. From the complaint in
question, we, however, find that except a
bald statement that the respondents were
directors of the manufacturers, there is
no other allegation to indicate, even
prima facie, that they were in-charge of
the company and also responsible to the
company for the conduct of its business.”
In the above case, the Apex Court dismissed the special
leave petition preferred by the State.
42. From the above referred judgments of the Apex
Court, two legal aspects emerge :
I)criminal proceedings initiated against the accused
can be quashed at the initial stage when the complaint
as well as documents accompanying the same do not
constitute any offence,
II) vicarious liability of a person for being prosecuted
for the offence committed by the Company under the Act
arises if at the material time the accused was in-charge
of and responsible for conduct of business of the
Company or offence is committed with the consent or
connivance of such person (Director) or attributable to
neglect on his part. Simply because the person is a
Director of the Company, it does not necessarily mean
that he fulfills al the above referred requirements so
as to make him liable.
43. While applying the test provided and ratio laid
down by the Apex Court to the present case, it is clear
that in the complaints in question, except general
statement that the petitioners were Directors of the
Company, there is no allegation to indicate even prima
facie that offence is committed with consent or
connivance of them or same is attributable to neglect on
their part. Since the complaints are totally silent on
this issue, in my opinion, there is no legal impediment
in quashing the impugned orders.
44. Faced with the similar situation in the case of R.
Banerjee and others v. H.D. Dubey and others , the Apex Court in para (7) of the judgment
observed thus :
“It would then be necessary for the
prosecuting agency to show from the
averments made in the complaint that the
case falls within sub-section (4) of
Section 17 of the Act. If the prosecuting
agency fails to show that the offence was
committed with the consent or connivance
of any particular Director, Manager,
Secretary or other Officer of the Company
or on account of the negligence of any one
or more of them, the case set up against
the appellants cannot be allowed to
proceed.”
Similarly, in para (9) of the said judgment, the Apex
Court observed thus :
“It will thus be seen that there is no
allegation in the complaint, which would
bring the case within the mischief of
Section 17(4) of the Act. There is no
allegation in the complaint that the
offence was committed with the consent/
connivance/negligence of the Directors,
other than the nominated person, who were
impleaded as co-accused. We are,
therefore, satisfied that the allegations
in the complaint do not make out a case
under sub-section (4) of Section 17 of the
Act. That being so, the inclusion of the
co-accused other than the Company and the
nominated person as the persons liable to
be proceeded against and punished cannot
be justified. As held by this Court in
Municipal Corporation of Delhi v.
Ramkishan , where the allegations set out in the
complaint do not constitute any offence,
no process can be issued against the
co-accused other than the Company and the
nominated person and the High Court would
be justified in exercising its inherent
jurisdiction under Section 482 of Code of
Criminal Procedure, 1973 to quash the
order passed by the Magistrate taking
cognizance of the offence against such
co-accused.”
45. In the above case, the Supreme Court was dealing with
identical situation under the provisions of Prevention
of Food Aduleration Act. In the instant case, the
allegations in the complaints, do not make out case
under sub-section (4) of Section 17 of the Act and
hence, orders of issuance of process passed by the
Magistrates need to be quashed and set aside.
45)The Supreme Court in para 29 of the judgment in
the case of M/s. Pepsi Foods Limited and another v.
Special Judicial Magistrate and others , has observed thus :
“No doubt the Magistrate can discharge the
accused at any stage of the trial, if he
considers the charge to be groundless, but
that does not mean that the accused cannot
approach the High Court under Section 482
of the Code or Article 227 of the
Constitution to have the proceeding
quashed against him when the complaint
does not make out any case against him and
still he must undergo the agony of a
criminal trial.”
46. It is no doubt true that in the given set of
circumstances, Magistrate may record pre-charge evidence
and pass an appropriate order if he is satisfied at that
juncture that the charge against the accused is
groundless. However, when the contents in the
complaints are accepted as they are and do not make out
a prima facie case against the accused, in such
situation, in my opinion, there is no propriety to allow
such prosecution to proceed against the accused
particularly in view of ratio laid down by the Apex
Court in the above referred judgment. The only
allegations made against the petitioners for the
offences in question are in the specific paragraph of
the complaints as observed hereinabove. What is stated
is that the complainant further charges accused for
committing offence by manufacturing, for sale,
distributing for sale, stocking for sale and selling
adulterated food article in contravention of aforesaid
provisions of the Prevention of Adulteration Act, 1954
and rules thereunder. The complainant is totally silent
in regard to allegations in respect of contingencies
mentioned in sub-section (4) of Section 17 of the Act
nor even makes out a prima facie case for the offences
charged. In such situation, in my opinion, the
contention canvassed by the learned Additional Public
Prosecutor that Magistrate may be permitted to pass
appropriate orders at the time of recording of
pre-charge evidence cannot be accepted and in view of
the facts and circumstances of the present case, the
ratio laid down by the Apex Court in P. Rajarathinam v.
State of Maharashtra and others is
not of any help to the State since facts and
circumstances in the case before Apex Court were
entirely different.
47. Shri Manohar, learned Senior Counsel for the
petitioners, though initially tried to canvass the
ground regarding nomination contemplated under Section
17(1)(a)(i), but subsequently made a statement that
petitioners do not want to press this ground and same
should be kept open. In the circumstances, it is open
to prosecution to proceed against such person/persons
according to law, if so nominated by the Company.
Similarly, it will be open for the Court to proceed
against the petitioners, if during the course of
proceedings, appropriate fresh evidence is available
against them.
48. As far as quashing of issuance of process against
other Directors as contended by learned Senior Counsel
Shri Manohar is concerned, these Directors were
initially made parties as petitioners in Criminal Writ
Petition Nos. 245/1998 and 246/1998. However, at the
later point of time, petitioners sought permission to
delete the names of these Directors from the array of
the petitioners and this Court permitted such deletion
vide order dated 6.7.2000. In the circumstances, it
will not be possible to adjudicate upon this issue in
their absence and grant relief claimed by the learned
Senior Counsel for the petitioners. However, it is open
for these Directors to move the appropriate forum for
the necessary relief.
49. For the reasons stated hereinabove, the impugned
order dated 18.8.1998 issued by the Chief Judicial
Magistrate, Amravati in Criminal Complaint Case No.
76/1998, impugned order dated 18.8.1998 passed by
Judicial Magistrate, First Class, Akot in Criminal
Complaint Case No. 146/98, impugned order dated
6.1.1999 passed by Chief Judicial Magistrate, Akola in
Criminal Complaint Case No. 10/1999, impugned order
dated 15.1.1999 passed by Chief Judicial Magistrate,
Akola in Criminal Complaint Case No. 31/1999, impugned
order dated 4.1.1999 passed by Chief Judicial
Magistrate, Akola in Criminal Complaint Case No.
5/1999, impugned order dated 24.3.2000 passed by Chief
Judicial Magistrate, Akola in Criminal Complaint Case
No. 393/2000, impugned order dated 9.6.1999 passed by
Chief Judicial Magistrate, Yavatmal in Criminal
Complaint Case No.204/1999 and impugned order dated
17.6.1999 passed by Judicial Magistrate, First Class,
Pusad in Criminal Complaint Case No. 81/1999 are
quashed and set aside only to the extent of above
referred Directors (accused) of the Company, who are
petitioners/applicants in the present proceedings and
the Magistrates are directed to proceed against the
other accused according to law.
50. The petitions/applications are allowed in the
above terms.