Karnataka High Court
M/S. Lion Dates Impex Pvt. Ltd vs The State Of Karnataka on 6 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100786/2021
BETWEEN:
1. M/S. LION DATES IMPEX PVT. LTD.,
NO.27/3, CAUVERY ROAD,
TIRUCHIRAPALLI TOWN HALL,
TRICHY, TAMIL NADU-620001
BY ITS AUTHORIZED SIGNATORY AND
MANAGING DIRECTOR, SRI PONNUDURAI.
2. SRI. PONNUDURAI
M/S. LION DATES IMPEX PVT. LTD.,
NO.27/3, CAUVERY ROAD,
TIRUCHIRAPALLI TOWN HALL,
TRICHY, TAMIL NADU-620001
3. SMT. MAHESHWARI PONNUMUDURAI
M/S. LION DATES IMPEX PVT. LTD.,
NO.27/3, TIRUCHIRAPALLI TOWN,
TOWN HALL, TRICHY, TAMIL NADU-620001
REP. BY ITS DIRECTOR.
...PETITIONERS.
(BY SHRI MRUTYUNJAY TATA BANGI, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
REP. BY THE INSPECTOR OF
LEGAL METROLOGY
GOKAK SUB-DIVISION, GOKAK,
2
BELAGAVI DISTRICT, PIN-591307
REP. BY THE ADDL. STATE PUBLIC
PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
...RESPONDENTS.
(BY SHRI PRAVEEN K. UPPAR, HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ORDER DATED 12/06/2020 PASSED BY THE COURT OF THE
PRINCIPAL JMFC AT GOKAK AND THE ENTIRE PROCEEDINGS IN
C.C.NO.1015 OF 2020 (P.C.NO.1201708 OF 2019-20), AND FURTHER
DISMISS / QUASH THE PRIVATE COMPLAINT, AS BEING ABUSE OF
PROCESS OF LAW, ETC.,.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the order dated 12.6.2020 and the entire proceedings in C.C.No.1015/2020, pending on the file of Prl. Civil Judge and JMFC, Gokak, filed for the offences punishable under Sections 31 and 36 of the Legal Metrology Act, 2009.
2. Heard Shri Mrutyunjay Tata Bangi, the learned counsel appearing for the petitioners and Shri Praveen K. Uppar, learned Government Pleader appearing for the respondent-
State.
33. Brief facts leading to the filing of the present petition as borne out in the pleadings are as follows:
The petitioner is a Public Limited Company engaged in manufacture and marketing of various food products in India and claims to be in business for the last five decades, having its registered office in Trichy, Tamilnadu. The respondent Inspector of the Department of Legal Metrology searches the products manufactured by the petitioner on the net and retrieves certain information of generic products manufactured by the petitioner company and then initiates the impugned proceedings against the petitioner for violation of the provisions of the Legal Metrology Act, 2009, on the ground that the petitioner is an e-commerce entity.
4. The contention of the learned counsel appearing for the petitioners is that the petitioner company is not an e-commerce entity and on a misconception that it is one such, the proceedings are instituted and the complaint is registered by respondent Inspector on 9.6.2020.
45. Cognizance is taken by the learned Magistrate on the registration of the said complaint. The order taking cognizance reads as follows:
The Complainant is present and filed a private complaint U/Sec.200 of Cr.P.C. against the accused No.1 to 3 for the offences P/U/Sec.31 and 36 of Legal Metrology Act.
ORDER Complainant being Inspector of Legal Metrology Office, Gokak Sub-Division, Gokak is present and filed this complaint U/Sec.200 of Cr.P.C. against the accused No.1 to 3 for the offences Punishable Under Section 31 and 36 of Legal Metrology Act. The complainant being the public servant filed this complainant in his official capacity. Therefore the sworn statement of the complainant is dispensed with.
Perused the complaint and available materials on record the complainant has made out a primafacie case. Therefore cognizance is taken for the offences Punishable Under Section 31 and 36 of Legal Metrology Act against the accused No.1 to 3.
Office is to register the criminal case against the accused No.1 to 3.
6. It is not in dispute that the petitioners are all residents of Tamilnadu and are officers in the establishment of M/s.Lion Dates Impex Pvt. Ltd. Since the complaint is registered 5 under section 200 of the Code of Criminal Procedure, 1973, the mandatory procedure stipulated under section 202 ought to have been followed by the learned Magistrate prior to taking cognizance of the offences. The issue with regard to an enquiry under section 202 need not be detain this Court for long, as a co-ordinate bench of this Court in Crl.P.No.101102/2020 and connected petitions, disposed of on 26.2.2021, while considering an identical issue, has held as follows:
14. There cannot be any dispute about the fact that all the petitioners in these petitions are residing outside the jurisdiction of learned JMFC who has passed the impugned orders. The impugned orders, in these cases, are couched more or less in the same manner and as an example, the impugned order in C.C.No.1018/2020 in Criminal Petition No. 101477/2020 is extracted below:
"The complainant is present and filed a private complaint U/Sec.200 of Cr.P.C. against the accused No.1 to 12 for the offences P/U/Sec.31 and 36 of Legal Metrology Act.
ORDER Complainant being Inspector of Legal Metrology Office, Gokak Sub- Division, Gokak is present and filed this complaint U/Sec.200 of Cr.P.C. against the accused No.1 to 12 for the offences Punishable Under Section 31 and 36 of Legal Metrology Act. The complainant 6 being the public servant filed this complaint in his official capacity. Therefore, the sworn statement of the complainant is dispensed with.
Perused the complaint and available materials on record the complainant has made out a prima facie case. Therefore cognizance is taken for the offences Punishable Under Section 31 and 36 of Legal Metrology Act against the accused No.1 to 12.
Office is to register the criminal case against the accused No.1 to 12."
15. Learned JMFC has not applied his judicial mind to the facts of the case, the provisions of law applicable and also the provisions of the Code of Criminal Procedure, 1973. If he had only seen the private complaints, he would have noticed that all the petitioners are residing outside his jurisdiction and therefore, Section 202 of Cr.P.C., became applicable to the present situation. It reads as under:
"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding 7 whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section
200.
(2) In an inquiry under sub-
section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-
section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant."
16. A cursory glance of the complaints would have revealed to the learned judge that the companies and petitioners arraigned as accused in 8 the complaints are located/residing outside his territorial jurisdiction. That would have alerted him to seek guidance from Section 202 of Cr.P.C. which loudly and clearly says that in such an eventuality, the Court should adapt what could be conveniently called as the "halt and proceed" approach before issuing process. This is a guarantee assured to all the potential accused in private complaints residing outside the territorial jurisdiction of the summoning Court that before they are called upon to make an arduous trip to the Court to answer the charges, Court has doubly assured itself that they are, in light of materials available before it, liable to answer such charges. The inquiry required to be held by Court at this stage or the investigation to be made by police officer in the alternative, contemplated under Section 202 of Cr.P.C. is towards fulfillment of such guarantee made available to an accused hailing from outside the jurisdiction. Courts should not treat this onerous obligation like a mere ritual or an empty formality. This "halt and proceed" is mandatory and any violation of the same will fetch a "red signal"
from Section 202 of Cr.P.C.
17. The Hon'ble Supreme Court in a similar case in Udai Shankar Awasthi (referred supra), at para No.40 has observed as follows:
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Code of Criminal Procedure, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Code of Criminal Procedure were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order 9 to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. [See also Shivjee Singh v. Nagendra Tiwary (AIR 2010 SC 2261; and National Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488)]".
18. In view of the above decision of the Hon'ble Supreme Court and in view of the mandatory provisions of Section 202 of Cr.P.C., the orders impugned herein taking cognizance for the offences punishable under Sections 31 and 36 of the Act, passed by the learned JMFC are liable to be set aside.
19. Learned JMFC ought to have borne in mind that taking cognizance for the offences against the accused persons named in the private complaints is a solemn act which will have adverse consequences on the life and liberty of the accused. Therefore, he should have applied his judicial mind to the allegations made, provisions of the Act which are alleged to have been violated and the ingredients of the offences etc., carefully before deciding to take cognizance for the offences. Now in this particular instance, additional care ought to have been bestowed by the learned JMFC in view of the fact that some of the petitioners are companies incorporated under the Indian Companies Act, 1956, and most of the petitioners are directors of the same. In regard to the vicarious liability of the director of companies for the offences alleged against them are concerned, law is very clear [Vide 10 SMS Pharmaceuticals Limited vs. Neeta Bhalla and another reported in (2005) 8 SCC 89]. Learned Judge should have adverted his attention to the law laid down by the Hon'ble Supreme Court in the above case. Further Sub-section 2 of Section 49 of the Act enables the companies to authorize a director to act as compliance officer and once such nomination has been done in accordance with law and such nomination is conveyed to the Director or the concerned controller or any legal metrology officer, there is an embargo on prosecuting the Directors of the company for the violation of any of the provisions resulting in commission of offences. If the complainant has got a case that apart from the Director nominated as the compliance officer under Section 49(2) of the Act, any other directors also have committed offences, the complainant is duty bound to satisfy the requirements under Section 49(4) of the Act, by providing necessary information along with the complaint. Learned JMFC has not applied his mind to any of these requirements. Non- application of the judicial mind by the learned JMFC is writ large on the face of the order itself. Under such circumstances, these petitions are entitled to succeed and I proceed to pass the following:
ORDER The above petitions are allowed.
The impugned orders passed by the learned Civil Judge and JMFC, Gokak dated 22.06.2020 in C.C.No.1040/2020, dated 10.06.2020 in C.C.No.1020/2020, dated 12.06.2020 in C.C.No.1016/2020 and dated 10.06.2020 in C.C.No.1018/2020 taking cognizance for the offences punishable under Sections 31 and 36 of the Legal Metrology Act, 2009 against all the petitioners are set aside.11
It is open to the learned JMFC to apply his judicial mind afresh on the complaint as observed herein and take proper decision in accordance with law.
7. In the light of the judgment rendered by the co-
ordinate bench of this Court, interpreting the same provision of law, the present criminal petition also stands allowed in the same terms.
8. The impugned order stands quashed. It would be open to the learned Magistrate to apply his mind afresh on the complaint as observed in Crl.P.No.101102/2020 and then take a decision in accordance with law. Ordered accordingly.
SD JUDGE Mrk/-