Karnataka High Court
Mr Arvind Mediratta vs The State Of Karnataka on 16 March, 2017
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL REVISION PETITION NO.344/2017
C/W
CRIMINAL REVISION PETITION NOS.345/2017,
346/2017, 347/2017, 348/2017, 349/2017,
350/2017, 351/2017, 352/2017, 353/2017,
354/2017, 355/2017
BETWEEN :
MR. ARVIND MEDIRATTA
SON OF MR. BAL KISHAN MEDIRATTA
AGED ABOUT 49 YEARS
SHOWN IN CC Nos.12589, 12595, 12592,
12596, 12594, 12591, 12588, 12598, 12597,
12590, 12593, 12587 OF 2016 RESPECTIVELY
AS BEING AVAILABLE AT
METRO CASH AND CARRY INDIA
PRIVATE LIMITED
NO.36/2B, PUTTANAGERE VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK
BENGALURU-560 059
AND HAVING HIS PLACE OF WORK AT:
SURVEY No.26/3, INDUSTRIAL SUBURBS,
'A' BLOCK, WARD No.9,
SUBRAMANYANAGAR
BENGALURU-560 055. ... PETITIONER
COMMON
(BY SRI UDAYA HOLLA, SENIOR COUNSEL,
SRI SAJAN POOVAYYA, SENIOR COUNSEL
SRI ADITYA VIKRAM BHAT AND
2
SRI ARJUN RAO, ADVOCATES)
AND
THE STATE OF KARNATAKA
THROUGH THE SENIOR LABOUR INSPECTOR
48TH CIRCLE, KARMIKA BHAVANA,
BANNERUGHATTA ROAD,
BENGALURU-560 029. ... RESPONDENT
COMMON
(BY SRI M.MUNIGANGAPPA, HCGP)
THESE CRIMINAL REVISION PETITIONS ARE FILED
UNDER SECTION 397 READ WITH SECTION 401 OF THE
CRIMINAL PROCEDURE CODE 1973, PRAYING TO SET
ASIDE THE ORDER DATED 04.11.2016 PASSED BY THE
MMTC-V, BENGALURU, IN C.C.NOs.12589/2016,
12595/2016, 12592/2016, 12596/2016, 12594/2016,
12591/2016, 12588/2016, 12598/2016, 12597/2016,
12590/2016, 12593/2016, 12587/2016 RESPECTIVELY
AND ETC.,
THESE CRIMINAL REVISION PETITIONS COMING ON
FOR ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Though these matters are listed for orders on I.A. Nos.1 and 2, with the consent of learned senior counsel for the petitioner and learned High Court Government Pleader for the respondent - State, the same are taken up for final disposal.
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2. So far as the maintainability of the present criminal revision petitions under Section 397 of the Cr.P.C. are concerned, Sri Udaya Holla, learned senior counsel, submitted that the revision petitions are maintainable as the impugned orders passed by the learned Magistrate deciding to summon the accused in exercise of his power under Section 200 Cr.P.C. would be an order of intermediatory or quasi-final in nature and not interlocutory in nature as held by the Hon`ble Supreme Court in paragraph No.21.1 of the judgment rendered in the case of URMILA DEVI vs. YUDHVIR SINGH reported in (2013) 15 Supreme Court Cases 624. He further submitted that this Court in the order dated 21.07.2015 passed in Criminal Petition No.2594/2015, has followed the said judgment and held that the remedy provided under Section 397 of the Cr.P.C. is a statutory remedy and the same is available to the petitioner.
3. Sri Udaya Holla, adverting to Annexure 'A' in all these petitions, which are separate order sheets 4 maintained by the Court of the Metropolitan Magistrate Traffic Court-V, Bengaluru, in C.C.Nos.12589/2016, 12595/2016, 12592/2016, 12596/2016, 12594/2016, 12591/2016, 12588/2016, 12598/2016, 12597/2016, 12590/2016, 12593/2016 and 12587/2016 respectively, submits that pursuant to the individual complaints filed by the Senior Labour Inspector, 48th Circle, Bengaluru, on behalf of the State, the learned Magistrate has taken cognizance of offence under Section 26 of the Contract Labour (Regulation and Abolition) Act, 1970, in respect of C.C. Nos.12589/2016, 12595/2016, 12592/2016 and 12596/2016; the offence under Section 22(a) of the Minimum Wages Act, 1948, in respect of C.C. Nos.12594/2016, 12591/2016, 12588/2016 and 12598/2016 and the offence under Section 8 of the Equal Remuneration Act, 1976 and Rule 6 of the Equal Remuneration Rules, 1976 in respect of C.C. Nos.12597/2016, 12590/2016, 12593/2016 and 12587/2016. He further submitted that the petitioner having learnt that the respondent - State had filed a series 5 of cases obtained the certified copies and thereafter, presented these petitions.
4. Sri Udaya Holla contended that the impugned orders of the learned Magistrate taking cognizance of the offences alleged against the petitioner are wholly illegal because the complaints are against an individual in his capacity as a Director of M/s. Metro Cash and Carry India Private Limited.
5. He contended that if a body Corporate has to be prosecuted by the State, it is imperative that the Corporate entity must be made as an accused and unless the Company is arraigned as one of the accused, only one or more Directors in the Company cannot be proceeded against. In support of his contention, he has placed reliance on paragraph No.58 of the judgment of the Hon`ble Supreme Court in the case of ANEETA HADA vs. GODFATHER TRAVELS AND TOURS PRIVATE LTD. reported in (2012) 5 Supreme Court Cases 661. He submitted that the said judgment of the Hon`ble Supreme Court has been 6 followed by this Court in the case of SANJAY JAIN vs. STATE OF KARNATAKA reported in 2013 SCC online Kar 10300 and the prosecution launched by the Labour Department in the said case quashed.
6. Mr. Holla further contended that Annexure 'A' in these petitions, which are separate order sheets maintained by the Metropolitan Magistrate's Court, disclose that printed formats, which are generally used for the purpose of recording the charge sheets filed by the Police under the provisions of the Cr.P.C., have been used. The offences alleged against the petitioner herein are with regard to violation of Section 26 of the Contract Labour (Regulation and Abolition) Act, 1970, Section 22(a) of the Minimum Wages Act, 1948 and Section 8 of the Equal Remuneration Act, 1976 and Rule 6 of the Equal Remuneration Rules, 1976. Section 26 of the Contract Labour (Regulation and Abolition) Act, 1970 prescribes that a Court of Magistrate shall not take cognizance of an offence other than on a written complaint filed before the 7 Court. Thus, he submitted that the cognizance, if any, taken by the Magistrate is in a mechanical manner without application of mind and therefore, the complaints are not maintainable qua the petitioner also.
7. Supporting the impugned orders, the learned High Court Government Pleader submitted that the Labour Department has filed written complaints duly signed by the Senior Labour Inspector attached to 48th Circle, who is the authorized officer, and complaints have been correctly filed under Section 200 of the Cr.P.C. Since the petitioner herein is a Director of the Company, he has been arraigned as the respondent. So far as the maintenance of the order sheets are concerned, he submits that this Court may take note of the essence of order. He submitted that printed format sheets, which are generally used in the Court of Magistrate have been used in all the cases. He submits that the petitioner may raise all the contentions and defences before the learned Magistrate. Petitioner without appearing before the learned Magistrate has directly 8 approached this Court. Hence, the Court may decline to interfere.
8. I have given my careful consideration to the submissions of the learned senior counsel and the learned High Court Government Pleader.
9. In the light of the submissions of the parties, the point that arises for consideration of this Court is:
Whether the impugned orders passed by the learned Magistrate taking cognizance of the offences mentioned in the complaints filed by the Labour Department against the petitioner as an individual without making the Company, in which he is a member on Board, are maintainable ?
10. The Hon`ble Supreme Court in the case of ANEETA HADA (supra) while considering a case arising out of Section 138 of the Negotiable Instruments Act, 1881, has held as follows:
"Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the 9 company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted."
The said authority has been followed by this Court in the case of SANJAY JAIN (supra).
11. A perusal of the complaints shows that the petitioner is arraigned as an accused in his individual capacity, although his position as a Director in the Company is mentioned. It is one thing to say that the Company is the accused represented by its Director and it is another to say that an individual being described as a Director in a particular Company satisfies the requirement of law. An individual can be a member on the Board of 10 several Companies. Unless a Company, which is a juristic person, is arraigned as a party, the Labour Department could not have initiated prosecution only against an individual. In the circumstances, respectfully following the Authority in the case of ANEETA HADA (supra), in my view, the complaints filed by the Senior Labour Inspector qua an individual without the Corporate entity being made as a member, were not maintainable. In the circumstances, these petitions merit consideration and are accordingly, allowed. Hence, the following:
ORDER
1. The petitions are allowed;
2. Proceedings in C.C. Nos.12589/2016, 12595/2016, 12592/2016, 12596/2016, 12594/2016, 12591/2016, 12588/2016, 12598/2016, 12597/2016, 12590/2016, 12593/2016 and 12587/2016 on the file of the Metropolitan Magistrate Traffic Court - V, Bengaluru, are set aside.11
3. The respondent - State shall be at liberty to take fresh and appropriate action in accordance with law;
4. In view of disposal of these petitions, applications (I.A. No.2/2017) for stay do not survive for consideration and the same are also disposed of.
Sd/-
JUDGE sma