Chattisgarh High Court
Azim H. Premji vs State Of Chhattisgarh on 1 February, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Cr.M.P. No. 490 of 2008
Azim H. Premji
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
! Shri S.K. Vyas learned Sr. counsel
Shri Atul Shridharan and Shri Vishnu
Koshta for the petitioner
^ Shri Pravin Das Dy. GA for respondent/State
Hon. Mr. Justice Pritinker Diwaker
Dated:01/02/2010
: Judgment
PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE
O R D E R
(01.02.2010) By way of present petition, the petitioner prays for the following reliefs:
(a) "That this Hon'ble Court may be pleased to issue notice to the Respondent and call for the records of Criminal Case No. 1316/07 pending in the Court of the Ld. JMFC, Raipur, and
(b) Upon finding the case against the petitioner to be an abuse of process of the law be pleased to quash the order dated 5.10.2007 passed in Criminal Case No. 1316/2007 issuing summons to the petitioner, and be further pleased to quash the summons arising therefrom, and
(c) Be further pleased to quash Criminal Case No. 1316/2007 and all proceedings arising therefrom against the petitioner, and
(d) Pass any such other and further order/orders as this Hon'ble Court may deem fit and proper in the interest of justice."
2. The petitioner in this case is the Chairman of Vipro Ltd., the Company incorporated under the Companies Act, 1956. It is alleged that this Company is having its head office at Bangalore and one of its offices at 2nd floor, Bhatia Complex, G.E. Road, Raipur (hereinafter referred to as "Raipur Office") and one Supriyo Banerjee was in charge of that office. According to the petitioner the very initiation of the criminal proceedings by the Judicial Magistrate First Class, Raipur is bad in the eye of law because no role whatsoever has been attributed to the petitioner yet the prosecution has been launched against him.
3. Counsel for the petitioner submits that in the complaint itself while mentioning the name of the petitioner and in charge of Raipur office namely Supriyo Banerjee it has been merely mentioned that on 25.8.2007 inspection of Raipur Office was done and in the same following deficiencies were found:
(i) the attendance register was not found at the workplace;
(ii) wage register was not present at the workplace;
(iii) attendance card was not given to the workers, and
(iv) the workers were not given wage slips.
4. Counsel for the petitioner submits that based on the above complaint dated 5.10.2007 learned Magistrate took cognizance of the case and ordered for issuance of summons against the petitioner and in charge of Raipur Office namely Supriyo Banerjee. He submits that even if the entire case of the prosecution is taken as it is, the petitioner cannot be prosecuted for any irregularity as alleged by the prosecution in maintaining the register under Section 18(2) of the Minimum Wages Act. He submits that even the complaint itself appears to be a mechanical one where after filling certain columns an attempt has been made to show that it is the petitioner who has violated certain provisions and thereby committed the offence as defined under Section 22-A of the Minimum Wages Act. He further submits that in the absence of any specific allegation the petitioner cannot be prosecuted by the Magistrate simply because he happens to be the Chairman of Vipro Ltd. In support of his argument, he places reliance on the decisions of the Supreme Court in the matter of M.D. Sonalika International Tractor Ltd. v. Dinesh Sharma & others1, in the matter of Punjab National Bank and others v. Surendra Prasad Sinha 2 and in the matter of M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others.3
5. On the other hand counsel for the respondent/State submits that initially the petitioner was served with the show cause notice dated 25.8.2007 vide Annexure P-3 and he ought to have replied to the same and should have apprised the learned Magistrate regarding his status. According to him in stead of filing this petition before this Court under Section 482 of the Code of Criminal Procedure, the petitioner should have gone and informed the learned Magistrate about his status and role in the Vipro Ltd. He submits that being head of the Vipro Ltd. the petitioner cannot go away from his responsibility and for any failure even on the part of the Raipur office, he is liable for criminal prosecution.
6. Heard counsel for the parties and perused the material placed before this Court.
7. From the record it appears that Vipro Ltd. is having one of its offices at Raipur and one Supriyo Banerjee is in charge thereof. The petitioner herein appears to be the Chairman of the said Vipro Ltd. having its registered and corporate office at Bangalore. It also appears from the record that on 25.8.2007 Raipur office of the Vipro Ltd. was inspected by the labour Inspector where he had found certain irregularities and therefore the inspection report was prepared vide Annexure P-2 and then seven days time was granted to the petitioner to remedy the deficiencies so pointed out by the Labour Inspector. It also appears from the record that vide Annexure P-3 a show cause notice dated 5.9.2007 was issued in the name of the petitioner as well that of Supriyo Banerjee mentioning the address of Raipur Office and directing these two persons to make payment of difference amount. It is relevant to note here that no amount has been mentioned in the said show cause notice and the same is just a printed format of the show cause notice in which the name of the petitioner and one Supriyo Banerjee was mentioned. It also appears from the record that thereafter on 5.10.2007 learned Magistrate had taken the cognizance of the matter and then on 24.9.2007 had directed for issuance of summons against them.
8. From the above documents it is clear that no role whatsoever has been attributed to the petitioner but for the fact that in all the documents name of the petitioner has been mentioned simply because he happens to be the Chairman of Vipro Ltd. This Court finds sufficient force in the argument of counsel for the petitioner that criminal prosecution cannot be launched against the petitioner just because he is the head of the Company. In the matter of M.D. Sonalika International Tractor Ltd. v. Dinesh Sharma & Ors. (supra) reiterating the view taken in the matter of State of Haryana v. Bhajan Lal (1992 Supp (1) SCC
335) it has been held by the Supreme Court as under:
"Para 8. A bare reading of the FIR shows that there was no allegation so far as the appellant is concerned. In any event in the evidence recorded no specific role was attributed to the appellant."
"Para 9. That being so, the complaint proceedings cannot be maintained qua the appellant and are set aside."
Likewise in the matter of Punjab National Bank and others v. Surendra Prasad Sinha (supra) it has been held by the Supreme Court as under:
Para 5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process less it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta."
In the same tune and tenor the Supreme Court has come to hold in the matter of M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (supra) which reads as under:
Para 28. Summoning of an accused in a criminal case is a serious mater. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
"Para 29. 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 S. 482 of the Code or Art. 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. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under S. 245 of the Code. The High Court says that the appellants could very well appear before the Court and move an application under S. 245 (2) of the Code and that the Magistrate could discharge them if he found the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (WAKF), Delhi v. Union of India, AIR 1965 SC 1167 : (1965) 2 SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof."
9. It is pertinent to note that in the present case the Company i.e. the principal offender has not been prosecuted and it is only the present petitioner who happens to be the Chairman of the Vipro Ltd and one Supriyo Banerjee - in charge of the Raipur Office of the said company who have been subjected to criminal prosecution though no specific role has been attributed against them. It is settled law that the Magistrate who issues process has the responsibility and duty as well to ascertain whether the accused concerned should be legally responsible for the offence charged for and only on his being satisfied that the law casts liability or creates an offence against the persons impleaded only then the process should be issued. Even at that stage the Magistrate is duty bound to be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons unnecessarily. Prime object of the criminal justice is to vindicate the majesty of justice and maintenance of law and order in the society and not to wreak the personal vengeance.
10. Having gone through the material available on record, this Court is of the considered opinion that the prosecution has failed at all fronts to substantiate that the allegations made against the petitioner are sufficient to put the criminal law into motion necessitating issuance of process against him. Accordingly, the petition is allowed. Order dated 5.10.2007 passed in Criminal Case No. 1316/2007 directing issuance of summons to the petitioner as well as the criminal Case No. 1316/2007 and all ancillary proceedings against the petitioner arising there from being contrary to law, are hereby quashed.
11. Petition thus succeeds.
Judge