Jharkhand High Court
Suma Devi vs The State Of Jharkhand And Ors on 21 June, 2017
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 741 of 2016
Suma Devi Petitioner
Versus
1. The State of Jharkhand
2. General Manager, Bharat Coking Coal Limited, Kusunda Area,
Kusunda Regional Office, P.O. Kusunda, P.S. Kenduadih, District
Dhanbad;
3. Project Officer, Bharat Coking Coal Limited, Godhar Colliery,
P.O. Godhar, P.S. Kenduadih, District Dhanbad;
4. Dy. Personnel Manager, Bharat Coking Coal Limited, Godhar
Colliery, P.O. Godhar, P.S. Kenduadih, District Dhanbad.
5. Head Office Clerk, Bharat Coking Coal Limited, Godhar
Colliery, P.O. Godhar, P.S. Kenduadih, District Dhanbad.
............. Opposite Parties
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. A.K. Sahani, Advocate
For the State-Opp. Party : Mrs. Vandana Bharti, APP
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06/21.06.2017Challenging the revisional order dated 23.07.2015 in Cr. Revision No.73 of 2015 passed by Session Judge, Dhanbad, the petitioner has preferred this petition under Section 482 Cr.P.C.
2. A complaint was filed by the petitioner, which was registered as C.P. Case No.2355 of 2014 for offences under Sections 406, 420, 409, 467, 468 and 471 of the Indian Penal Code. The complaint was filed showing the following as accused: -
(1) Chairman-cum-Managing Director, B.C.C.L; (2) Project Officer, B.C.C.L., Godhar Colliery; (3) Dy. Personnel Manager, B.C.C.L., Godhar Colliery; (4) Head Office Clerk, BCCL, Godhar Colliery.
Be it mentioned here that the complaint has not been filed against any person, rather against some posts of the Company.
3. The sum and substance of the complaint is that the husband of the complainant was an employee of Bharat Coking Coal Limited who became mentally unstable. He was treated in the mental hospital at Ranchi for which information was given to the Company. The complainant claims that she went to the office and asked for money from the Company, but, no one took care. Ultimately, the husband of the informant died on 13.08.2012.
2The informant gave information of his death to the Company and claimed compassionate appointment. The informant claims that she deposited all the necessary documents along with her application. She says that she sought information under the Right to Information Act, but, no information was provided to her. She filed an application before the First Appellate Authority under the Right to Information Act, but in vain. She further stated in the complaint that she went to the Police Station, but, the police directed her to approach the Court for redressal of her grievances. She stated that because of the aforesaid action of the Company, she has suffered mentally and she has been cheated as she believes that the Company wants to misappropriate her money. The complainant further stated before the Court that she has not been paid the pension inspite of sending legal notice.
4. After the complaint was filed, the complainant was examined on solemn affirmation and four enquiry witnesses were examined, who reiterated the statement of the complainant.
5. The Magistrate, after going through the records, had taken cognizance of offence under Section 406 of the Indian Penal Code and issued summons. It is necessary to quote the relevant paragraph of the order dated 29.01.2015 by which cognizance was taken and summons was issued: -
"On perusal of averments made in the complaint pe- tition, statement of the complainant on S.A., statement of witnesses examined during enquiry and the documents submitted by the complainant in support of its allegation against the accused persons who are accordingly on their capacity on the post, I find prima facie case under section 406 of the IPC made out against the above persons holding the post on their capacity."
6. After holding as such, the Court below directed the office to issue summons to the accused persons. It is also necessary to quote the portion of the order by which summons were issued, it reads as under:-
"Hence, O.C is directed to issue Summon to the ac- cused persons after filing of Process Fee and Requisite by the complainant. The complainant is directed to file Process Fee and Requisite within 7 (seven) days from the date of this order."
7. Challenging the said order, the General Manager, BCCL preferred a revision being Criminal Revision No.73 of 2015, which was allowed by the Session Judge, Dhanbad, thereby setting aside the order taking 3 cognizance and issuing summons dated 29.01.2015. Challenging the said revisional order, the petitioner/complainant is before this Court.
8. Learned counsel for the petitioner submits that the revisional order is absolutely bad. He submits that it is well settled principle that when an offence is made out, the Court below has to take cognizance. In this case, when offence is made out from bare perusal of the complaint, the Magistrate had rightly taken cognizance. Thus, the revisional Court committed a grave illegality by setting aside the order taking cognizance. He submits that no amount on account of death-cum-retiral benefits of the husband of the complainant was given to her nor she was given compassionate appointment. Thus, she has been cheated and her money has been misappropriated by the Company. He lastly submits that this application needs to be allowed after setting aside the revisional order.
9. Learned A.P.P. opposes the prayer of the petitioner and submits that no offence is made out from bare reading of the complaint, thus, the revisional Court had rightly set aside the order taking cognizance.
10. I have heard learned counsel appearing for the petitioner- complainant and the learned A.P.P. at length.
11. The principle of quashing of order taking cognizance has now been well settled by several judgments of the Hon'ble Supreme Court. It is well settled principle of law that while examining the material for the purpose of evaluating a case under Section 482 Cr.P.C., to quash a criminal proceeding at the cognizance stage, it has to be only seen that whether the facts narrated in the complaint, on its face value, discloses existence of any ingredients constituting an offence or not. The Hon'ble Supreme Court in the case of State of Haryana & Others versus Bhajan Lal & Others reported in (1992) Supp. 1 SCC 335 has discussed the scope of exercise of jurisdiction under Section 482 and in paragraph 102 has held as under:-
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it 4 may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where 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 where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
12. In the case of Chand Dhawan (Smt.) versus Jawahar Lal & Others reported in (1992) 3 SCC 317, the Hon'ble Supreme Court has reiterated the principle that the High Courts can exercise its inherent jurisdiction for quashing a criminal proceeding only when the allegation 5 made in the complaint do not constitute an offence.
13. While dealing with a quashing petition, the Court is ordinarily to proceed on the basis of averments made in the complaint, the defence of the accused cannot be considered at the said stage and nor the disputed question of fact can be looked into.
14. Thus, it is clear, that if from bare perusal of the complaint, if ingredients of any offence is attributed, then the order taking cognizance cannot be quashed or set aside. On this position of law, this case has to be tested.
15. I have mentioned above the facts, as narrated by the complainant in the complaint petition. The sum and substance of the said complaint is that widow of the deceased employee has not been paid the death-cum-retiral benefits of her husband by the Company nor she has been given compassionate appointment. She sought for some information under the Right to Information Act, but, the same was also not provided to her. On the basis of these averments, the learned Magistrate took cognizance of the offence under Section 406 of the Indian Penal Code.
16. Section 406 of the Indian Penal Code lays down punishment for criminal breach of trust. Criminal breach of trust is defined under Section 405 of the Indian Penal Code. It is necessary to quote Section 405 of the Indian Penal Code, which reads as under: -
"Section 405 Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
17. From perusal of the above Section, it is clear that the basic ingredients of Section 405 is that there must be entrustment of any property by the complainant to the accused and there must be dishonest misappropriation or conversion of the property by the accused for their own purpose. On fulfilling these conditions only, there can be criminal breach of trust. As narrated above, the complaint petition did not whisper about entrustment of any property by the complainant to any of the accused 6 persons and there is no whisper of misappropriation by the accused. Be it noted that the accused are not a person, but some posts or designation of an employee of the Company, BCCL. Mere non-payment of death-cum- post retiral benefits, cannot by any stretch of imagination come within the purview of Section 405 of the Indian Penal Code, when there is no allegation of misappropriating any amount by any person. Further, not offering compassionate appointment also cannot come within the purview of Section 405 of the Indian Penal Code. Even if I analyse the complaint and see whether any other provision of Indian Penal Code or any criminal legislature is attracted or not, I find that the averments made in the complaint do not attract any offence under the Indian Penal Code or under any criminal law.
18. Since from bare perusal of the complaint, no offence is made out, the order taking cognizance is definitely bad in law. The Magistrate, who had taken cognizance, has absolutely misdirected herself while taking cognizance and has failed to analyse whether the ingredients of Section 405 of the Indian Penal Code is made out in this case or not. Without analysing the ingredients of Section 405 of the Indian Penal Code, in an absolutely mechanical manner, the Magistrate has taken cognizance. While taking cognizance, it is expected that the Courts concerned should, at least, come to a conclusion whether the ingredients of the offence are present or not in the complaint, which is lacking in this case.
19. By the impugned order, the Magistrate has also issued summons. The Magistrate issued summons against "accused persons". The accused, as per the complaint, are the posts or designation of the employees of the Company, i.e., (1) Chief Manager, B.C.C.L., Kusunda Area, Kusunda Regional Office, PO Kusunda, PS Kenduadih, District Dhanbad; (2) Project Officer, B.C.C.L., Godhar Colliery, PO Godhar, PS Kenduadih, District Dhanbad; (3) Deputy Personnel Manager, B.C.C.L., Godhar Colliery, PO Godhar, PS Kenduadih, District Dhanbad; (4) Chief Office Clerk, B.C.C.L., Godhar Colliery, PO Godhar, PS Kenduadih, District Dhanbad.
20. An offence committed under the I.P.C. must be by some person, who can be punished for committing such offence. Section 2 of the I.P.C. provides that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereto, of which he shall be guilty within India. Thus, to hold some one 7 guilty for punishing under the I.P.C., the said perpetrator of the crime must be a person. So, a person, who prima facie seems to have committed an offence has to be summoned to face trial and none else.
21. Now the question arises, who is a 'person'. The dictionary meaning of the word 'person', as per Chambers Dictionary is "an individual; a living sole; a human being". Section 11 of the I.P.C. defines the word 'person', which reads as follows: -
"The word "person" includes any Company or Association or body of persons, whether incorporated or not."
Obviously, this definition is inclusive.
22. In the case of Krishnan & Anr. Versus Krishnaveni & Anr. reported in (1997) 4 SCC 241, the Hon'ble Supreme Court, referring to Section 11 of the I.P.C. has held that the word 'person' would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. Thus, there are two types of persons - natural person and juridical person, i.e., a legal person. This legal person is a subject matter other than a human being to which the law attributes personality.
23. Thus, an offence prima facie has to be committed by a natural person or a juridical person, i.e., body of persons, corporate or association whether incorporated or not, who, by virtue of some statute has been recognized to be a person, i.e., whose personality has been attributed by law. Thus, only these type of persons can be summoned for committing an offence under the I.P.C.
24. It is also worthwhile to note the provisions for issuance of summons in the Code of Criminal Procedure. Issuance of summons is governed under Chapter VI of the Code of Criminal Procedure. Section 62 prescribes as to how a summon should be served. Section 62(2) of the Cr.P.C. mandates that, the summon shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Sub section (3) of the said Section further provides that every person on whom summon is so served, shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Section 63 of the Cr.P.C. provides as to how a summon should be served on corporate bodies and societies. Thus, from the aforesaid provisions, it is clear that Section 62 provides for service of 8 summons on persons and Section 63 of the Cr.P.C. provides for service of summons on corporate bodies and societies. The word 'person' is not defined in Code of Criminal Procedure, but Section 2(y) of the Cr.P.C. provides that words and expressions used in the Code of Criminal Procedure and not defined, but defined in Indian Penal Code have meaning respectively assigned to them in that Code. This means that definition of the word 'person', as mentioned in the I.P.C. will apply to Cr.P.C. also. So, it is clear that summons can only be issued against a natural person, who has to sign and receive a copy of the same or in case of corporates in the manner prescribed in the Code.
25. No doubt, a juridical person can commit an offence under the I.P.C., however, in that case the juridical person must be arrayed as an accused in the complaint and thereafter only if the Court finds prima facie that a case is made out to issue summons, then only summons can be issued against that juridical person. [authority : (2015) 12 SCC 781 (Sharad Kumar Sanghi versus Sangita Rane)]
26. The I.P.C. does not contain any provision for attaching vicarious liability. The question of vicarious liability will only arise if any provision is there under the Statute. The statute, undisputedly, must contain provision for fixing such vicarious liability.
27. In the case in hand, Bharat Coking Coal Limited - a Company incorporated under the Companies Act, is not an accused and no allegation has been attributed against the Company. The accused are :- (1) Chief Manager, B.C.C.L., Kusunda Area; (2) Project Officer, B.C.C.L., Godhar Colliery; (3) Deputy Personnel Manager, B.C.C.L.,Godhar Colliery; (4) Chief Office Clerk, B.C.C.L., Godhar Colliery; against whom summons have been ordered to be issued. Since these are the post/designation of the employees of the Company, they are neither a natural or juridical person. Further, the I.P.C. does not attribute any personality to these posts. That being the position, they cannot be summoned to face trial independently. It is pertinent to mention here that the juridical person, i.e., the Company B.C.C.L. is not an accused in the complaint case.
28. Thus, in view of the aforesaid conclusion, the order of summoning (1) Chief Manager, B.C.C.L., Kusunda Area; (2) Project Officer, B.C.C.L., Godhar Colliery; (3) Deputy Personnel Manager, B.C.C.L.,Godhar Colliery; (4) Chief Office Clerk, B.C.C.L., Godhar Colliery is absolutely bad as those 9 being merely posts of the Company are neither a natural person nor a juridical person nor any vicarious liability under I.P.C. can be attached to them.
29. Thus, I find that the Sessions Judge, Dhanbad has rightly allowed the revision and had set aside the order dated 21.09.2015 passed by the Judicial Magistrate in C.P. Case No.2355 of 2014. I, therefore, find no merit in this application under Section 482 of the Code of Criminal Procedure, which is, accordingly, dismissed.
(Ananda Sen, J) Kumar-Cp03