Tripura High Court
Kamal Kumar Kothari vs State Of Tripura on 11 February, 2019
Equivalent citations: AIRONLINE 2019 TRI 16
HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. 58/2018
1. Kamal Kumar Kothari
Son of Late Jhanwarlal Kothari,
Resident of 10, Canning Street, 3rd Floor,
Police Station Hare Street, Kolkata-700001,
West Bengal.
2. Smt. Sunita Kothari
Wife of Shri kamal Kumar Kothari,
Resident of 10, Canning Street, 3rd Floor,
Police Station Hare Street, Kolkata-700001,
West Bengal.
3. Shri Dharmendra Kothari,
Son of Late Jhanwarlal Kothari,
Resident of 18, Deshapriya park Road,
Ground Floor + 1st Floor, Kolkata-700026,
West Bengal.
4. Shri Dipak Rudra
Son of Padimini Bhushan Rudra,
Resident of CL-129, Section -II, Salt Lake City,
Kolkata-700091, West Bengal.
----Appellant (s)
Versus
1. State of Tripura
Represented by Secretary, Department of Home,
Government of Tripura, New Capital Complex, Agartala,
West Tripura-PIN-799006.
2. Joydeep Roy Burman
Son of Samir Ranjan Roy Barman
Residing at 38, Akhaura Road, Agartala, West Tripura,
PIN-799001.
-----Respondent(s)
For petitioner(s) : Mr. M Mukherjee, Sr. Adv.
Mr. S. Lodh, Adv.
For Respondent(s) : Mr. PK Biswas, Sr. Adv.
Mr. A Roy Barman, Addl. PP
Mr. P Majumdar, Adv.
Date of pronouncement : 11.02.2019
Whether fit for reporting : YES
Page 2 of 30
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
The present revisional application is filed by the petitioners under Section 482 CrPC for exercising the inherent power of this Court wherein the legality, propriety and correctness of the order dated 06.08.2018 passed by the learned Addl. Sessions Judge (Court No.5), Agartala, West Tripura in connection with Criminal Revision No. 13/2018 arising out of case No. PRC 239/2010 thereby affirming the order dated 11.06.2018 passed by the learned Chief Judicial Magistrate, West Tripura, Agartala wherein the charges were framed against the petitioners under Section 120B/406/420/109 of the IPC.
2. Facts in a nutshell:
The present petitioners have been arrayed as accused in connection with PRC 239/2010 pending before the learned CJM, West Tripura which corresponds to West Agartala PS case No. 102/2010 dated 13.03.2010 for being the Directors of a Company named and styled as M/S Guinness Securities Limited, (hereinafter referred to as 'GSL'), a company incorporated under the provisions of the Companies Act, 1956 having its corporate office at Guinness House, 18, Deshapriya Park Road, Calcutta, 700026.
3. On perusal of the order dated 06.08.2018, I find that one Joydeep Roy Barman lodged as FIR with the Officer-In-Charge of the West Agartala Police Station on 13.03.2010 alleging inter alia, that in the month of November, 2008 one Vibekananda Modak Page 3 of 30 representing himself as an agent of GSL approached him with a proposal that if he invests in shares through GSL, then he would ensure that the informant would get handsome returns. Upon his assurance, the informant Sri Roy Barman investing a sum of Rs.33,00,000/- (Thirty Three lakhs) through shares in GSL. Since the informant, i.e. the respondent No.2 was not informed about the details of transactions in his account he visited the office of GSL at Kolkata wherein he was informed that his account was in debit to the tune of Rs.36,00,000/- (Thirty Six Lakhs). The respondent No.2 held a meeting with the petitioner Nos. 1 & 2 and one Dipak Parekh, Prabir Chatterjee and Babulal Nolkha were the persons in charge and responsible for the day to day affairs of the GSL.
4. It has further been alleged that the said Vibekananda Modak in collusion with the other persons from the inception of the transaction, had made false and fraudulent representations, and induced him to part with substantial sums of money and thereby cheated him to the tune of Rs.36,00,000/- (Thirty Six Lakhs).
5. The complaint filed by the informant Joydeep Roy Barman, being registered with the police, investigation was conducted and after being satisfied prima facie, the investigating agency submitted their report in final form vide charge sheet No. 44/2015 dated 26.06.2015 under Sections 419/ 420/ 120B/ 109/ 406 of IPC against the petitioners.
6. After taking cognizance, the learned Magistrate was pleased to issue summons against the petitioners. Subsequently, the petitioners preferred an application under Section 482 of the Page 4 of 30 CrPC before this Court praying therein for quashing the proceedings impugned in the petition. The said application was registered as Crl. Pet. 05/2016. It was disposed of vide order dated 02.02.2016 in the following terms:
"Crl. Pet. 05 of 2016 BEFORE HON'BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA Present:
For the petitioners : Mr. K. Agarwal, Sr. Adv.
Mr. K Roy, Adv.
Mr. US Singha, Adv.
For the respondents : Mr. A Ghosh, PP.
02.02.2016
After hearing the matter for sometime, I am of the view that as far as this petition is concerned no relief can be granted to the petitioners to quash the criminal proceedings against them at this stage. However, liberty is reserved to the petitioners to approach the learned trial Court for the following reliefs:
(a) The petitioners may approach the learned trial Court praying for their personal exemption in the case and the trial Court shall keeping in view the age etc. of the petitioners grant them exemption from personal appearance subject to their appearing through counsel. However, it shall be made clear that the petitioners will have to appear on every date when evidence is to be recorded or when their presence is otherwise necessary for framing charge etc.
(b) The petitioners shall also be at liberty to approach the trial Court to argue the case on merits in accordance with law.
Petition is disposed of.
Sd/- Illegible DEEPAK GUPTA Hon'ble Chief Justice."
7. Ultimately, on 11.06.2018, the learned CJM, West Tripura, Agartala had framed charges against the petitioners to which all of them pleaded not guilty. However, on 31st May, 2018 when the case was fixed for discussion of charge, the petitioners had submitted an application under Section 239 of the CrPC praying for discharging the petitioners from the liability of the case under the given facts and circumstances of the case as narrated in the petition itself.
Page 5 of 30
8. Being aggrieved by and dis-satisfied with the order of framing of charge, the petitioners had preferred a revision application which was registered as Criminal Revision No. 13/2018 arising out of PRC(WP)239/2010.
9. The learned Addl. Sessions Judge, after hearing the parties and considering the materials on record being not found any illegality or impropriety in the impugned orders of the learned CJM, West Tripura, Agartala, framing charges against the revision petitioners rejected the revision petition by his order dated 06.08.2018.
10. The said order dated 06.08.2018 passed by the learned Addl. Sessions Judge, West Tripura, Agartala affirming the charges framed by the learned CJM, West Tripura, Agartala by order dated 11.06.2018 is under challenge before this Court wherein the revision petitioners have pleaded for exercising of the inherent power of this Court under Section 482 of the CrPC.
11. In course of argument, Mr. M Mukherjee, learned senior counsel assisted by Mr. S Lodh, learned counsel appearing for the petitioners has urged four points in his quest to quash the charges framed under Section 120B/406/420/109 of the IPC. These are:
i) Whether the earlier application under Section 482 of the CrPC would be a bar in maintainability of the present application under Section 482 of the CrPC, even though the Hon'ble Court had rejected the earlier application bearing No. Crl. Pet. 05/2016 praying for quashing the entire proceeding?
Judgment relied on :-
a. Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh & Ors, (1975) 3 SCC 706 b. SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., (2007) 4 SCC 70 Page 6 of 30
ii) Whether the application under Section 482 CrPC is maintainable after dismissal of a revisional application by the Court of Sessions?
Judgment relied on :-
a. Krishnan & Anr. Vs. Krishnaveri & anr., (1997) 4 SCC 241 b. Shakuntala Devi & Ors. Vs. Chamru Mahto & Anr., (2009) 3 SCC 310
iii) Whether the petitioners can be held vicariously liable for being the members of the Board of Directors of a company under the provisions of the Indian Penal Code when the company by itself has not been made an accused in the case?
Judgment relied on :-
a. SK Alagh Vs. The State of UP & Ors., (2008) 5 SCC 662 b. Sharad Kumar Sanghi Vs. Sangita Rane, (2015) 12 SCC 781
iv) Whether the learned Judge committed error by affirming the order of the learned Magistrate framing charge against the petitioners in violation of the law laid down?
Judgment relied on :-
a. Union of India Vs. Prafulla Kumar Samal & Anr., (1979) 3 SCC 4 b. Satish Mehra Vs. State NCT of Delhi & Anr., (2012) 13 SCC 614 c. Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors., (2013) 5 SCC 762.
12. While dealing with the issue (i) whether the second application under Section 482 CrPC is maintainable after the earlier one was rejected by this Court, Mr. Mukherjee, learned senior counsel has submitted that it is trite law that every case has its unique sets of facts and before we answer this question he has mentioned certain dates, which according to him are relevant to decide this issue.
13. On 13.03.2010, the FIR was lodged under Section 420/406/120B/109 IPC for offence starting from 01.12.2008 and the investigation continued for a period of 5 years and ultimately in June, 2015 charge sheet was filed and the learned court took cognizance of the offences on 16.09.2015. Thereafter, the Page 7 of 30 petitioners moved and application under Section 482 CrPC praying for quashing of the proceedings so far it related to them and this Court by its judgment and order dated 02.02.2016 had rejected the prayer for quashing of proceedings with the observations that, "the petitioners may approach the learned trial Court praying for their personal exemption in the case and the trial Court shall keeping in view the age etc. of the petitioners grant them exemption from personal appearance subject to their appearing through counsel. However, it shall be made clear that the petitioners will have to appear on every date when evidence is to be recorded or when their presence is otherwise necessary for framing charge etc." It was further observed that the petitioners shall also be at liberty to approach the learned trial court to argue the case on merits in accordance with law.
14. According to learned senior counsel appearing for the petitioners, the order dated 02.02.2016 itself makes it clear that liberty was given to the present petitioners to agitate on merits before the learned trial court, and on the strength of this order they moved an application under Section 239 CrPC praying for discharge of the petitioners. It is submitted that after copies were served to them in terms of the provisions of Section 207 CrPC the learned Magistrate by orders dated 31.05.2018 and 11.06.2018 was pleased to reject the prayer for discharge of the petitioners and framing of charges under the relevant provisions of law.
15. Being aggrieved by the orders passed by the learned Magistrate, the petitioners preferred an application under Section Page 8 of 30 397 read with Section 399 of CrPC before the Court of learned Sessions Judge, Agartala, West Tripura and as stated above, the learned Sessions Judge vide order dated 06.08.2018 had affirmed the order of framing of charges.
16. Mr. PK Biswas, learned senior counsel assisted by Mr. P Majumdar, learned counsel appearing for the respondent No.2- defacto complainant, submits that the order dated 02.02.2016 passed by the High Court in the earlier revisional application is a complete bar to the subsequent application, i.e. the present application under Section 482 CrPC. According to learned senior counsel, the order dated 02.02.2016 passed in Crl. Pet. 05/2016 has attained its finality with regard to the existence of prima facie evidence against the accused persons and the said order cannot be questioned by this Court and he prays for dismissal of the suit in view of Section 362 CrPC.
17. At this juncture, I have meticulously perused the judgment passed by the Apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) where the Supreme Court has held that the High Court has the power to entertain a subsequent application under Section 482 CrPC in a changed set of circumstances. Going through the facts of the decision of Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) it reveals that the accused who were the respondent Nos. 2 & 3 were charged by the Magistrate for offence under Section 304A read with Section 109 IPC. Page 9 of 30
18. The respondent No. 1 filed an application under Section 561A CrPC in the High Court for quashing the proceedings. The High Court rejected the application on the ground that the question of fact had yet to be ascertained and it was not desirable to interfere with the proceedings at that stage. At para 2 of the said judgment it is observed thus:
"...........The earlier application which was rejected by the High Court was an application under Section 561A of the Code of Criminal Procedure to quash the proceedings and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561A to quash the proceeding. ................."
19. It was under that circumstance the Apex Court held that:
"Section 561A preserves the inherent power of the High Court to make such orders as it deems fit to prevent the abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos. 1 and 2."
20. On a careful reading of the aforesaid observation of the Supreme Court in Superintendent and Remembrancer of Legal Page 10 of 30 Affairs, West Bengal (supra), I find factually it is quite distinguishable with the facts and circumstances of the present case.
21. In the case in hand, the petitioners at that time of framing of charge filed an application under Section 239 of the CrPC which on rejection, the learned Magistrate had framed the charges after being prima facie satisfied that the police report and the documents relied upon by the investigating agency and that also was affirmed by the Addl. Sessions Judge, as aforestated.
22. Here, immediately after framing of charges, the petitioners approached the revisional court but in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) the Supreme Court has justified the entertaining of the subsequent application as the High Court entertained it on the ground that the criminal case was dragged on for a period of about one and half years without any progress at all and it was in those circumstances the Supreme Court held that the High Court had perfectly exercised its inherent jurisdiction, which also found no prim facie case in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal (supra). So, according to me, the facts of the present case differ from the facts and circumstances of the case stated supra.
23. It is worthy to mention, in the present case, the charge was only framed on 11.06.2018 and immediately thereafter, it was challenged by the petitioners before the revisional court and the revisional court without any sort of delay disposed of the petition Page 11 of 30 rejecting the same vide order dated 06.08.2018 which is again challenged before this Court under Section 482 CrPC.
24. Again, the case of SMS Pharmaceuticals Ltd., (supra) relates to a case under the Negotiable Instruments Act, 1881 where the second application was entertained by the High Court because in the previous order in the proceedings under Section 482 CrPC the High Court gave liberty to the accused to agitate the matter once again and the Supreme Court held that the accused merely took recourse thereto. Further, in the said decision, the High Court did not find the statutory ingredient of Section 138 of the NI Act. It was further held by the High Court that the allegation leveled against the accused person were vague and indefinite and did not satisfy the requirement of law as contained in Section 141 of the NI Act and the High Court held that no case had been made out for issuance of any summon against the accused.
25. Now, if we carefully read the order dated 02.02.2016 passed in Crl. Pet. 05/2016 I find that the learned Single Judge (Hon'ble the Chief Justice, Deepak Gupta, as he then was) in his order has categorically stated, "I am of the view that as far as this petition is concerned no relief can be granted to the petitioners to quash the criminal proceedings against them at this stage. However, liberty is reserved to the petitioners to approach the learned trial Court for the following reliefs".
26. If I read this observation in two parts then one part is very specific that as far as the criminal petition 05/2016 is concerned no relief can be granted to the petitioners to quash the proceedings against the petitioners; and in the second part, liberty Page 12 of 30 is given to the petitioners to approach the learned trial court for the following reliefs:
"(a) The petitioners may approach the learned trial Court praying for their personal exemption in the case and the trial Court shall keeping in view the age etc. of the petitioners grant them exemption from personal appearance subject to their appearing through counsel. However, it shall be made clear that the petitioners will have to appear on every date when evidence is to be recorded or when their presence is otherwise necessary for framing charge etc.
(b) The petitioners shall also be at liberty to approach the trial Court to argue the case on merits in accordance with law."
27. In my considered view, His Lordship has rejected the prayer for quashing the criminal proceedings after being satisfied with the prima facie materials on record against the accused persons. Secondly, liberty was granted for a limited purpose. Hon'ble the Chief Justice was very specific that the petitioners were given liberty to approach the learned trial court praying for granting exemption from personal appearance and that was also subject to their appearing through counsel. It was further clarified that they would have to appear on every date when evidence was to be recorded or when their presence was otherwise necessary for framing charge, etc. The petitioners were only given liberty to approach the trial court to argue the case on merits in accordance with law. These directions, according to me, clearly restrict the petitioners to enlarge the scope of further interference and to revisit the merits of police report or to say, the charge.
28. Here, it would be apposite to refer a decision in Kalyan Chandra Sarkar Vs. Rajesh Ranjan & Anr., (2005) 2 SCC 42 wherein the Apex Court held as under:
"19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the Page 13 of 30 doctrine of judicial discipline having regard to the hierarchical system prevailing of our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting."
29. A criminal proceeding includes the framing of charge or charges. The framing of charge, in my opinion, on the pretext of the present case, should not be said to be a case of changing circumstances, and as such, the circumstances of the case of Superintendent and Remembrancer of Legal Affairs, West Bengal (supra) and SMS Pharmaceuticals Ltd. (supra) are quite distinguishable to the facts of the present case.
30. Furthermore, quashing of charge means the quashing of the entire proceedings which was also rejected by the learned Single Judge in the earlier application filed by the petitioners as aforestated. Liberty given to the petitioners to argue the case on merits in accordance with law, according to me, means the petitioners were given the liberty to contest and face trial on merits in accordance with law.
31. The direction of Hon'ble the Chief Justice (Sri Deepak Gupta, as he then was) in the previous application that the petitioners would have to appear on every day when evidence is to be recorded or when their presence was otherwise necessary for framing charge, etc. is quite indicative that the petitioners would have to face trial and participate in day to day proceedings, Page 14 of 30 recording of evidence and other parts of the proceedings in terms of the Code of Criminal Procedure, which, needless to say, are the subsequent parts after framing of charges in a criminal proceeding.
32. In the instant case, the petitioners did not agitate their grievance before the submission of the police report in final form vide charge sheet No. 44/2015 dated 26.06.2015 and when the order was challenged before the High Court by way of filing Crl. Pet. 05/2016 the entire case records was before the learned Single Judge when the prayer for quashing of criminal proceeding was rejected and further, no challenge was also made by way of filing the appropriate petition before this Court for quashing of the criminal proceedings till the framing of charge by the learned Magistrate.
33. I find no changing circumstances in the proceedings of the present case forcing the petitioners to approach this Court praying relief for quashing the proceeding exercising its inherent power under Section 482 of CrPC.
34. While dealing with issue No. (ii), Whether the application under Section 482 CrPC is maintainable after dismissal of a revisional application by the Court of Sessions, I have meticulously gone through the judgment relied upon by the learned senior counsel appearing for the petitioner. In Krishnan & Anr. Vs. Krishnaveri & Anr. (supra) and Shakuntala Devi & Ors. (supra) wherein the Supreme Court has held that "the object of the introduction of Sub- section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same Page 15 of 30 time, the doors to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under Sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases". The contention that there was a complete bar under Section 397 (3) debarring the High Court from entertaining an application under Section 482 thereof was rejected.
35. The Supreme Court in Kailash Verma vs Punjab State Civil Supplies Corporation & Ors., (2005) 2 SCC 571 referring to para 14 of Krishanan & Anr. (Supra) held SCC.P574. para 4):
".........though the revision before the High Court under Sub-section (1) of Section 397 is prohibited Sub-section 3 thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below."
36. While dealing with the question of maintainability of a second revision application the Supreme Court in Kailash Verma (supra) at para 5 referring to the decision in V.C. Shukla Vs. State, 1980 Suppl. SCC 92 has held :
"5. It may also be noticed that this Court in Rajathi v. C. Ganesan said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court."Page 16 of 30
37. Again, relying on the decision of State v. Navjot Sandhu, (2003) 6 SCC 641 the Supreme Court in Kailash Verma (supra) held: (SCC.p. 574, para 6) "Section 482 of the Criminal Procedure Code starts with the words 'Nothing in this Code'. Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case, [(2001) 8 SCC 607] this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice."
38. In Kailash Verma (supra) the Supreme Court had set aside the judgment of the High Court on the ground that the learned Magistrate as well as the learned Sessions Judge in revision found that the accused in that case was entitled to be discharged in the facts and circumstances of that case and the Supreme Court held that the interference by the High Court discharging the accused was not justified in exercising its inherent power under Section 482 CrPC in the facts of that case.
39. I may gainfully refer to the decision of the Supreme Court in Hamid Vs. Rashid @ Rasheed and Ors., (2008) 1 SCC 474 wherein it was opined:
"6. We are in agreement with the contention advanced on behalf of the complainant appellant. Section 482 Cr.P.C. saves the inherent powers of the High Court and its language is quite explicit when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A procedural Code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the Page 17 of 30 administration of which alone it exists or to prevent abuse of the process of the Court. .............."
40. In Sunita Jain Vs. Pawan Kumar Jain & Ors., (2008) 2 SCC 705 it is stated:
"In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."
41. In State of Orissa & Anr. v. Saroj Kumar Sahoo [(2005) 13 SCC 540], this Court stated the law, thus "11. As noted above, the powers possessed by the High Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
XXX XXX XXX
14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors. [(1992) 3 SCC 317], it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved."
42. After taking into consideration various decision, the Supreme Court in the case of R Kalyani Vs. Janak C. Mehta & Page 18 of 30 Ors., (2009) 1 SCC 516 on the exercise of inherent power of High Court under Section 482 CrPC held at para 9:
"9. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
43. An excerpt from the complaint may be reproduced hereinbelow for consideration of the facts of the present case and judgments referred by the learned senior counsel for the petitioner:
"Being unable to contact the accused persons I was compelled to visit Kolkata and went to the Branch Office of Guiness Securities Ltd where I was informed that my account was in a debit to the tune of Rupees thirty-six lacs.
Thereafter I went to Kolkata and a meeting was held with Kamal Kumar Kothari, Deepak parakh, Prabir chatterjee, Babulal Nolkha and Mrs Suneeta Kothari who are the persons in charge and responsible for the day to day running of the business of the Guiness Securities Ltd. and all the employees and representatives of Guiness act in terms of the directives given by them. During such meeting all of them admitted that certain unauthorized transactions were made in my account and sought for some time to reconcile the issue. Mr. Kamal Kumar Kothari personally assured me that he would look into the matter but till date there is no response from Kamal Kumar Kothari or any of them and they are avoiding me in some pretext or the other. In the reply of Guiness Securities Ltd. to my Advocate's letter they have denied to acknowledge me as their client. Little did I realize that this stance of Kamal Kumar Kothari, Deepak parakh, Prabir Chatterjee, Babulal Nolkha and Mrs Sunetha Kothari was a motivated one in order to prevent me from approaching the Court of law.
It is there for clear that Vivekananda Modak in collusion and conspiracy with Kamal Kumar Kothari, Deepak parakh, Prabir Chatterjee, Babulal Nolkha and Mrs Sunetha Kothari from the inception of the transaction made false and fraudulent representations and induced myself to part with substantital sums of money and thereby cheated me to the tune of Rupees Thirty six lacs."Page 19 of 30
44. In the police report, i.e. in the charge sheet submitted by the investigating agency some of the findings of the agency may be reproduced, which are as under:
"That, the Guniess Securities Ltd. replied that SMS service in share related business was introduced on 05/03/2010 by National Securities Depository Limited (NSDL) and the last transaction by client (complainant) was on 28/07/2009. (as per seized document vide sl. No. 3 of the seizure list dated 08/04/2011). But as per further seized document found the SMS service in share related business was introduced on 01/06/2009 by NSDL and the last transaction by client (complainant) was made on 28/07/2009. So Guiness Securities Ltd. gave the false information to the Investigating Agency, only to shield their ill motive. (as per seized document vide Sl. No. 11 of seizure list dated 15/11/2014).
That, as per seized document of Sl. No. 8 of seizure list dated 19/04/2012 namely "Contract Notes cum Bill of Joydeep Roy Barman w.e.f. 03/12/2008 to 28/07/2009 total 2030 pages", the entire amount of the complainant was lost in share business participated through the company namely Guiness Securities ltd. which was done in frequent manner without the consent of the complainant and without taking into consideration of the interest of the complainant.
That, subsequently the complt. brought to the matter to National Stock Exchange of India Ltd. (NSEIL) filed arbitration case against Guiness Securities ltd. in writing as per Arbitration and Conciliation Act 1996. Accordingly, on 23/09/2010 the case went to National Stock Exchange of India ltd. Committee for arbitration and suggested to settle the matter by compensating the Complainant with 25% of the total deposited amount. This is clearly indicates adoption of malpractice by the accused firm and the accused persons in trading of shares of the complainant. But the complainant refused to settle the matter and file the FIR in P.S. (as per seized document vide Sl. No.4 of seizure list dated 27/09/2011).
That, as per seized document of Sl. No.3 of seizure list dated 08/04/2011 namely "Letter of Authority" was given to Subir Chakraborty by the Complainant Joydeep Roy Barman for operation of Share Trading Account (Demat) with his consent. But the accused firm and the accused persons operated the demat account without the consent of the complainant for their gain.
That, Guiness Securities Ltd. violating the terms and conditions of national Stock Exchange of India ltd. (NSEIL) as described in the seized document dated 08/04/2011. In the member client Agreement Form. (as per seized document vide Sl. No. 3 of seizure list dated 08/04/2011).
That, as per Financial Statement (Account Code:03TYJ508) vide seized document/CD of Sl. No.6 of seizure List dated 07/01/2012, down fall in the trading business was passed on, since 17th December, 2008 onwards. But as per company's opinion they dispatched Balance Confirmation letter since 5th January, 2009 onwards by way of following dates on 05/01/2009, 12/01/2009 & 10/07/2009. Moreover, we asked for official correspondence as a proof of evidence to dispatch the balance confirmation letter to the client. In response, GSL handover a document (seized document of Sl. No.19 of seizure list dated 08/06/2015) in which it was mentioned that the Balance Confirmation Letter was sent on 05/01/2009), 12/01/2009 & 10/07/2009 to the client Joydeep Roy Barman along with other 4/5 clients Balance Confirmation Letter through "Certificate of Posting" (Indian Postal Service) (now discontinued vide Circular Order G. Posts No.2-4/2008-PO dated 23/02/2011). In this regard, I have examined Shri Radheshyam Saha (59) S/o Lt. Harendra Kr. Saha of South Indranagar, PS-East Agt. I/C Post Master, Public Relation Inspector of Agartala Head Post Office, Agartala, West Tripura and Smt. Manjushree Roy Chowdhury (59) w/o Dr. Bidya Sankar Roy Chowdhury of Dhaleswar-2, PS East Agt., Page 20 of 30 I/C, Sub Record Officer, RMS, CR Road, Agartala-1, West Tripura and recorded their statements U/S 161 CrPC. They have examined the seized documents vide Sl. No. 19 of the seizure list dated 08/06/2015 and said that in a Certificate of Posting, records of GSL, total 5/6 letters were sent to the different clients, but postage of Rs.6/- was posted in the receipt register letter as well as 2/3 round seals were used which was not correct. As per rules for 3 (three) letters, in Certificate of Posting postage stamp of Rs.5/- was supposed to be affixed on the Receipt Register letter. In a case of 5/6 letters, the postage stamp of Rs.10/- was supposed to be affixed on the Receipt Register letter. But postage of Rs.6/- was affixed which is not correct. Therefore, the documents handed over to CID are not genuine document.
Xxxxxxxxxxxxxxxxxxxxxxx But Guiness Securities Ltd. did not inform the complt. (their client) time to time about the share trading on behalf complt. All transaction made by the broking house (Guiness Securites Ltd.) are in gross violation of the SEBI, CDSL, NSDL, BSE & NSE rules which clearly postulate that, it is obligatory on the part of the broking house (Guiness Securities Ltd.) to inform their client (Complt.) on whose behalf, they are transacting regarding each transaction appertaining to the customers' accounts.
That, thus, it is clear that the money entrusted with the accused persons were unlawfully and unauthorizedly invested without the consent of the complainant and true and correct reflection of such investment were never communicate to the complt. And as a result he has suffered wrongful losses through such transactions and the accused person gained wrongfully by way of earning commission for repeated trading. The complt. Was always kept in dark regarding the investment made on behalf of him. Wherever, the Compt. Contacted with the staffs of Guiness Securities Ltd. they always assured him that his money was safely invested.
That, initially the complt. is able to contact with officials of Guiness Securities Ltd. and after some day later even the complt. unable to contact with the officials of Guiness Securities Ltd. Being unable to contact the officials of Guiness Securities Ltd. the complt was compelled to visit the Branch Office of Guniess Securities Ltd., Deshapriya Park, Kolkata where he came to know that no amount was available in the concerned account of the complainant. Thereafter, a meeting was held with Kamal Kr. Kothari, Mrs. Suneeta Kothari etc. who were the Board of Directors and Members of Guiness Securities Ltd., Kolkata with the complt. but they failed to give any redress to the complainant.
That, subsequently, the complt. brought to the matter to NSE in writing. Accordingly on 23/09/2010 the case went to the National Stock Exchange of India Ltd. Committee for arbitration case and suggest for settle the matter by compensate the 25% of the total deposited amount. But complainant refuses to settle the matter and went to the court.
Under the above circumstances, a prima facie charge U/S 419/120(B)/406/420/109 IPC has been well established against the FIR named a/p namely 1) Vivekananda Modak, (non official Agent) s/o Lt. Benu Ranjan Modak C/o Manoranjan Modak of Shibnagar, Masjid Road, PS East Agt, West Tripura & permanent address :
Highland Park, 1925 Chak Garia, Cape Tower Flat No. 18C/2, 18th Floor PS East Jadavpur, Kolkata-700094. West Bengal and U/S 120(B)/406/420/109 IPC has been well established against the a/p namely 2) Subir Charkaborty (sub-Branch Manager, now resigned) s/o Hemchandra Charkborty of P-116A, Sector-EA, Metropolitan Housing Co-Operative Society Ltd., Kolkata-700105, South 24 Parganas, Near SBI Chingrighata Branch, PS Tilizala, West Bengal
3) Kamal Kumar Kothari (Managing Director) S/o Lt. Jhanwar Lal Kothari of 10, Canning Street, 3rd Floor, Kolkata-700001, Post office GPO, Ps-Hare Street, West Bengal, 4) smt. Sunita Kothari (Director, now resigned) W/o Sri Kamal Kumar Kothari of do, 5) Dharmendra Kothari (43) S/O Lt. Janwarlal Kothari, Director, Guniess Securities Ltd., 18, Deshapriya Bark Road, Ground Floor + 1st Floor, Kolkata-
700026, West Bengal, 6) Dipak Rudra (75) S/o Padmini Bhushan Page 21 of 30 Rudra, Director, Guiness Securities Limited, CL-129, Salt Lake City, Kolkata-700091, West Bengal. The a/p sl. NO.3 to 6 were the board of directors of the time of incident, i.e. from 01/12/2008 to 28/07/2009. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In view of the evidences discussed under, I do hereby submit charge sheet vide West Agt. P.S. C/S No. 44/15 date 26/06/2015 U/S 419/120(B)/406/420/109 IPC against the accused person namely, 1) Vivekananda Modak, (non official Agent) s/o Lt. Benu Ranjan Modak C/o Manoranjan Modak of Shibnagar, Masjid Road, PS East Agt, West Tripura & permanent address : Highland Park, 1925 Chak Garia, Cape Tower Flat No. 18C/2, 18th Floor PS East Jadavpur, Kolkata-700094, West Bengal and U/S 120(B)/406/420/109 IPC against the a/p namely 2) Subir Charkaborty (sub-Branch Manager, now resigned) s/o Hemchandra Charkborty of P-116A, Sector-EA, Metropolitan Housing Co-Operative Society Ltd., Kolkata-700105, South 24 Parganas, Near SBI Chingrighata Branch, PS Tilizala, West Bengal 3) Kamal Kumar Kothari (Managing Director) S/o Lt. Jhanwar Lal Kothari of 10, Canning Street, 3rd Floor, Kolkata-700001, Post office GPO, Ps-Hare Street, West Bengal, 4) Smt. Sunita Kothari (Director, now resigned) W/o Sri Kamal Kumar Kothari of do, 5) Dharmendra Kothari (43) S/O Lt. Janwarlal Kothari, Director, Guniess Securities Ltd., 18, Deshapriya Bark Road, Ground Floor + 1st Floor, Kolkata-700026, West Bengal, 6) Dipak Rudra (75) S/o Padmini Bhushan Rudra, Director, Guiness Securities Limited, CL- 129, Salt Lake City, Kolkata-700091, West Bengal showing absconding and accused persons to face trial in the open court of law for justice. WPA may kindly be issued against the absconding accused persons to bind down them for appearance before the Ld. Court during trial. The witnesses noted in column No.13 in the Charge Sheet may kindly be summoned who will prove the case, the FIR named accused persons noted in Column No. 12 in the Charge sheet may kindly be discharged for their liabilities of the case as FIR named accused."
45. After perusal, I am of the opinion that, here, the accused person had full dominion over the property being indisputably they were the Board of Directors. They denied that Vivekananda was never their agent. If that be so, then, how the invested money of Rs.30 lacs was deposited to the account of GSL and that apart, why the petitioners had accepted the draft through Vivekananda Modak. It is not the case of the petitioners that they did not utilize the amount in course of trading.
(emphasis supplied)
46. Further, in the light of discussion made here-in-above, this Court, prima facie, is satisfied that the charge under Section 120B of IPC may sustain since enough evidence surfaces to put the Page 22 of 30 said charge on trial. In a recent decision, the Apex Court in State vs. Arup Kumar Srivas tava, (2017) 15 SCC 560 has held thus:
"26. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do."
47. Further, as per contract the company will take consent from the investor/complainant before transaction but they made the transaction without the complainant being taken into confidence which acts, according to me, tantamount to dishonest inducement.
48. Moreover, it is true that the petitioners did not induce the respondent No.2 directly but Vivekananda was engaged as agent who was acting on behalf of them. Vivekananda received the said money from the complainant-respondent No.2 to invest in GSL, the company of which the respondents were the Board of Directors. So, the accused-petitioners received the said sum of Rs.30 lacs from Vivekananda and deposited the said sum of Rs.30 Lacs to the account of their company, the Guinness Securities Limited and thus, utilized the entire amount for their business. The respondents were entrusted with the Money of the respondent No.2 who also had the dominion over the invested amount. Page 23 of 30
49. The respondents have submitted a written argument which also was submitted by the learned senior counsel. The crux is that the respondent No.2 was never influenced by the respondents in any manner to satisfy the ingredients required for bringing home a charge under Section 420IPC.
50. Expressing his strong reservation of framing charge under Section 406 IPC, learned senior counsel has contended that neither there was any entrustment upon the respondents nor the respondents had any dominion over the money that was handed over to Vivekananda Modak; the respondents had not dishonestly misappropriated or converted the investment of the complainant to their own use and he also has not converted or disposed of the investment in violation of any direction of law prescribing the mode in which such trust is to be discharged or there is no violation of any legal contract which the respondents has made in discharge of such trust upon them by the complainant.
51. As many as 19 sets of documents have been seized to substantiate the prosecution case. More so, prima facie it is revealed that Vivekananda approached the complainant and on his persuasion the complainant invested the money which was deposited in the account of the GSL when the petitioners were at the helm of its affairs and responsible for all activities and transactions of the company. If the respondents being the Board of Directors of the GSL had no relation, then how the money was deposited in the bank account of GSL, which, however, has not been clarified by the learned senior counsel for the petitioners. Page 24 of 30
52. In the present case in hand, in the final police report, i.e. the charge sheet, the investigating agency has come to a prima facie conclusion that a charge under Section 419/120/406/420/109 IPC has been well established against the petitioners. The petitioners were the Board of Directors of the GSL at the time of incident, i.e. from 01.12.2008 to 28.07.2009 and are responsible and liable for all transactions. There is clear allegation that the transactions have been made keeping the complainant wholly in dark and no consent was taken from the complainant Joydeep Roy Barman regarding purchase of share/share trading causing the complainant huge loss.
53. The GSL informed in writing to the complainant that they received the money invested by the complainant to the tune of Rs.33,00,000/- by cheques and DD in the respective banks. Entrustment was also lying with them. After evaluation of materials and documents, this Court finds the elements to proceed with the trial. The position of law is settled and no more res integra that the court in exercising its inherent power cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused-petitioners. Further, from the document seized, it was found that the accused persons on many occasions represented their case falsely. I find there is direct allegation against the petitioners. The learned Magistrate has framed charges vide order dated 11.06.2018 being prima facie satisfied with the materials on record.
Page 25 of 30
54. The relevant portion of the order is reproduced hereinbelow:
"....................
Today was fixed for framing of charge against the present accused persons of this case.
Accordingly, I have framed a charge against the accused persons namely Subir Chakrborty, Kamal Kr. Kothari, Sunita Kothari, Dharmendra Kothari & Dipak Rudra, U/S 406/420/120B/109 of IPC, read with Section 420 of IPC and it was read over to the present accused persons in the open Court of law, to which all of them pleaded not guilty and claimed to be tried.
Now, the case will be listed for recording of evidence of the prosecution witnesses of this case.
Learned Counsel Mr. K. Roy for the accused persons prayed to fix the date for recording of evidence of the PWs during the month of August, 2018.
The fact also remains that the Hon'ble High Court in this case has been pleased to direct the Chief Judicial Magistrate-cum-Civil Judge (Sr.Div.), West Tripura District to dispose the case as early as possible and a time frame has already been fixed by the Hon'ble High Court in this respect.
I also find that the instant case is an old pending one and all necessary expeditious steps must be taken for its early disposal, keeping in mind the kind direction of the Hon'ble High Court and the kind time frame given by the Hon'ble High court.
Office is directed to issue fresh summons upon the below noted witnesses fixing the below noted dates...................."
After saying so, the calendar was fixed for recording evidence with effect from 11.07.2018 to 02.08.2018 of the prosecution witnesses.
55. The order of the learned Magistrate of framing of charges, being challenged, the learned Addl. Sessions Judge while passing the order dated 06.08.2018 has held that prima facie materials are available in the police report against the petitioners. The learned revisional court has placed reliance on the decision of the Apex Court in State of Orissa Vs. Debendra Nath Padhi reported in AIR 2005 SC 359, para 18, where it was observed:
"...............Further, at the stage of framing of charge robbing and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the court"Page 26 of 30
56. It was further observed at the end of the said para 18 that, "................At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
57. The manner and way the learned Magistrate took up the proceeding, which was affirmed by the learned Addl. Sessions Judge cannot be termed to be an abuse of the process of court in the facts of the present case. There is no material to justify that grave miscarriage of justice will be caused to the petitioners if the present criminal proceedings are allowed to be put in trial and for doing complete justice to the parties to the lis.
58. The Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. & Ors. Vs. Central Bureau of Investigation, AIR 2018 SC 2039, referring to the decision of the Constitution Bench in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 observed:
"100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227,228,239,240,241,242 and 245 Code of Criminal Procedure, has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the Accused. The court has to see as to whether the material brought on record reasonably connect the Accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the Accused further. (Vide State of Karnataka V. L. Muniswamy [MANU/SC/0143/1977:
(1977) 2 SCC 699], All India Bank officers' Confederation v. Union of India [MANU/SC/0020/1989 : (1989) 4 SCC 90], Stree Atyachar Virodhi Parishad V. Dilip Nathumal Chordia [MANU/Sc/0573/1989: (1989) 1 SCC 715] State of M.P. v. Krishna Chandra Saksena [MANU/SC/1749/1996 : ((1996) 11 SCC 439 and State of M.P. V. Mohanlal Soni [MANU/SC/0434/2000: (2000) 6 SCC 338]."
59. In para 33 of Asian Resurfacing of Road Agency Pvt. Ltd. & Ors. (supra) the Apex Court has observed thus: Page 27 of 30
"33. If the contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re- appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases. ................"
60. Again in para 36 of Asian Resurfacing of Road Agency Pvt. Ltd. & Ors. (supra) the Apex Court has declared the law as under:
"36. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court Is not barred irrespective of the label of a petition, be it under Sections 397 or 482 of the Code of Criminal Procedure or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. ..........."
61. In the said case, Hon'ble Justice Rohinton Fali Nariman, while supporting the above view expressed his opinion separately to the fact that, "it is well settled law that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised as a "cloak of an appeal in disguise" or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice."
62. In the light of the aforesaid legal position, I can hold that the power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Code of Criminal Procedure or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As Page 28 of 30 indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise.
63. I reiterate that I find no apparent error in the orders of the learned Magistrate as well as the learned Addl. Sessions Judge, which they passed in exercise of their jurisdiction under the Code. Factually, I find that there is no patent error to justify any correction of the said orders and the present case does not fall within the category of rarest of rare cases where the inherent jurisdiction of this Court under Section 482 of the CrPC can be exercised.
64. Since I have already observed that the learned Magistrate has fixed the calendar on day to day basis it would be prudent for the petitioners to face the trial for expeditious disposal of the case.
65. The issue No. 3 deals with whether the petitioners can be held vicariously liable for being the Board of Directors of the company under the provisions of IPC when the Company by itself has not been made an accused in this case.
66. As I have already held that there are direct allegations against the Board of Directors and in a simplest manner this Court can resolve the issue by taking recourse to Section 319 CrPC where the power has been given to the Court or to the prosecution to consider the necessity of incorporating the GSL as a company which itself can be tried together with the accused-petitioners of Page 29 of 30 the present case. For convenience, Section 319 of CrPC is reproduced hereinbelow:
"319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-
section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
67. By virtue of the said Section, it is clear that during the course of trial, if it appears from the evidence that any person not being the accused has committed any offence for which such person can be tried with the accused, court may proceed against such person for the offence which he appears to have been committed. In my considered view, if this is a defect, that defect can be cured even at the stage of trial.
68. In the present case only charge has been framed and the evidence is yet to be recorded. So, there will be no bar to incorporate the company, and the proceedings may continue. If it is so done, there would be no miscarriage of justice caused towards the petitioners.
Page 30 of 30
69. Having regard to the facts in issue raised in this petition in the backdrop of the reasonable sequitur propounded in the above authorities of law, I find no merit in the present petition filed under Section 482 of the Cr.PC. No case is made out to exercise the inherent power of this Court under Section 482 CrPC.
Hence, the petition is dismissed.
JUDGE lodh