Gujarat High Court
Tej vs State
Author: M.R. Shah
Bench: M.R. Shah
SCR.A/1026/2004 6/ 6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1026 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH -Sd/- ========================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ========================================= TEJ RAMJIDAS MALHOTRA & 3 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : M/S TRIVEDI & GUPTA for Applicant(s) : 1,3 - 4.MR BB NAIK for Applicant(s) : 2, MR. DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/02/2012 ORAL JUDGMENT
1.0. Present Special Criminal Application under Articles 226 & 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure has been preferred by the petitioners herein-original accused to quash and set aside the charge sheet filed by the Police Inspector, Crime Branch, Junagadh in the Court of learned JMFC, Veraval in the offences registered as C.R. No. I-10 of 2004 before the Prabhash-Patan Police Station and as also the proceedings being Criminal Case No.572 of 2006 pending in the Court of learned JMFC, Veraval.
2.0. Shri B. B. Naik, learned Senior Advocate for the applicants seeks permission to withdraw the present Special Criminal Application qua applicant nos. 1 and 3 as they were not named in the FIR as well as they are not charge sheeted by the concerned Investigating Officer. Under the circumstances, present application is dismissed as withdrawn qua applicant no.1-Shri Tej Ramjidas Malhotra and applicant no.3 -Shri Pabitra Surendranath Sarkar. After the matter was argued at length, Shri B. B. Naik, learned Senior Advocate for the applicants seek permission to withdraw the present application qua applicant no.4 herein unconditionally. Permission is accordingly granted. Present application is dismissed as withdrawn unconditionally qua applicant no.4-Shri V. N. Madurvar. Rule is discharged so far as applicant nos. 1, 3 and 4 are concerned. Under the circumstances, this Court is required to consider the present application for the aforesaid relief qua applicant no.2-Shri Kanaiyalal Vadilal Shah-original accused no.3 (as per charge sheet).
3.0. That the respondent no.2 herein -original complainant -Assistant Geologist , Collectorate Office, Junagadh had lodged the FIR being C.R. No. I-10 of 2004 before the Prabhash-Patan Police Station for the offences punishable under Sections 365, 368, 147, 148, 149 and 385 of the Indian Penal Code alleging inter alia that the accused persons inclusive of Gujarat Heavy Chemical Ltd., illegally excavated limestone from the gaucher land and committed the theft of limestone worth Rs.53 lacs. It is required to be noted that as such the applicant no.2 herein was not named in the FIR. After the investigation has been concluded, the Investigating Officer has submitted the charge sheet against the applicant also for the offences under Sections 379, 447 and 34 of the Indian Penal Code. That after the charge sheet, the case is registered as Criminal Case No. 572 of 2006 pending in the Court of learned JMFC, Veraval. Being aggrieved and dissatisfied with the impugned charge sheet as well as impugned Criminal Case being No.572 of 2006, the applicant herein-original accused no.3 (as per charge sheet) has preferred present application under Section 482 of the Code of Criminal Procedure.
4.0. Shri B. B. Naik, learned Senior Advocate for applicant no.2 -original accused no.3 has vehemently submitted that as such the applicant has not committed any offence as alleged. It is submitted that for the offences alleged to have been committed by the company, of which he served as manager, (Human Resources) at the relevant time, he cannot be held vicariously liable for the offences alleged to have been committed by the GHCL. It is submitted that at the most it can be said that for the mining operation in the the GHCL company its Manager (Mine) can be held responsible and/ or liable and/ or vicariously liable. However, so far the applicant is concerned, who has nothing to do with the mining operation of the company, in absence of any other further material that he was also responsible for the mining activity and/ or activity in the mining operation, he cannot be held responsible and / or vicariously liable for the offences alleged to have been committed by the company. Therefore, it is requested to quash and set aside the impugned complaint/ criminal case / charge sheet filed against the applicant for the offences, in which he is already charge sheeted.
5.0. Shri Dabhi, learned APP has tried to oppose the present application by submitting that after investigation is concluded and having prima facie satisfied that the applicant no.2 has also committed the offence for which he has been charge sheeted and therefore, it is requested not to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal proceedings in exercise of powers under Section 482 of the Code of Criminal Procedure.
5.1. He has further submitted that in case and after considering entire charge sheet paper, if this Court is inclined to quash and set aside the impugned criminal proceedings qua applicant no.2 herein, in that case, it is requested to make suitable observation that the same shall be without prejudice to the rights and contentions of the prosecution / other accused and other accused persons shall be tried by the learned Magistrate / Court in accordance with law and on merits and without in any way being influenced by the present order.
6.0. Heard the learned advocates for the respective parties at length and considered the impugned FIR as well as charge sheet papers which is placed on record for the perusal of the Court. At the outset, it is required to be noted that the offences are alleged to have been committed by the GHCL company, in which, applicant no.2 was serving as Manager(Human Resources). Nothing is on record that being the Manager (Human Resources) the applicant was also required to perform his duty for mining operation. It is required to be noted that in the company there is one another officer Shri V.N. Maduvar-applicant no.4 who was at the relevant time Manager (Mining Operation) who is also arraigned as accused. Not a single statement and / or evidence is on record to suggest that as Manager (Human Resources) the applicant was also inday to day affairs and/ or management of the mining operation of GHCL company. Under the circumstance, in absence of any such material and/ or evidence on record even after the investigation, the applicant cannot be held vicariously liable and / or liable for the offences alleged to have been committed by the company-GHCL Company and / or other responsible Manager of the company who has performed the duty of mining operation. Under the circumstances, to continue the criminal proceedings against the applicant shall be unnecessary harassment to him and would be abuse of process of law and the Court and he has to unnecessary face the trial for the offence which is prima facie not made out.
7.0. Under the circumstances and in view of the above and for the reasons stated above and considering the role attributed to the applicant no.2 herein, the present application succeeds and the impugned criminal proceedings against the applicant no.2 -Shri Kanaiyalal Vadilal Doshi-original accused no.3(as per the charge sheet) arising out of the FIR being C.R. No. I-10 of 2004 as well as charge sheet with respect to the said FIR as well as Criminal Case No.572 of 2006 pending in the Court of learned JMFC, Veraval are hereby quashed and set aside so far as applicant no.2 herein Shri Kanaiyalal Vadilal Doshi(original accused no.3 as per the charge sheet). However, the same shall be without prejudice to the rights and contentions of the prosecution against other accused persons and other persons shall be tried by the concerned Magistrate / Court in accordance with law and on merits and without in any way being influenced by the present order which would be qua applicant no.2 Shri Kanaiyalal Vadilal Doshi-(original accused no.3as per the charge sheet) only. Rule is made absolute to the aforesaid extent qua applicant no.2 and Rule is discharged so far as rest of the applicants are concerned.
sd/-
(M.R.SHAH, J.) kaushik