Karnataka High Court
M/S Parle Agro Private Limited vs State Of Karnataka on 13 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
CRL.P No. 7961 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7961 OF 2020
BETWEEN:
1. M/S PARLE AGRO PRIVATE LIMITED
A COMPANY REGISTERED UNDER
COMPANIES ACT, 1956
REPRESENTED BY ITS AUTHORIZED REP
MR. MUSHEDULLA KHAN
HAVING ITS REGISTERED CORPORATE
OFFICE AT OFF WESTERN EXPRESS HIGHWAY
SAHAR-CHAKALA ROAD, PARISWADA
ANDHERI(E), MUMBAI-400099
HAVING ITS PLANT AT PLOT NO.32-46
& 46-63, ADAKANAHALLI INDUSTRIAL AREA
NANJANGUD TALUK, MYSORE DISTRICT
...PETITIONER
(BY SRI. SANDESH J. CHOUTA, SENIOR ADVOCATE FOR
SRI ASIM MALIK, ADVOCATE)
Digitally signed by
PADMAVATHI B K
Location: HIGH AND:
COURT OF
KARNATAKA
1. STATE OF KARNATAKA
BY NANJANGUD P.S., MYSURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001
2. BEN AND GAWS PVT LTD
A COMPANY REGISTERED UNDER
-2-
CRL.P No. 7961 of 2020
COMPANIES ACT, 1956
REPRESENTED BY ITS
MANAGING DIRECTOR
MR. DWAIPAYAN DUTTA
HAVING ITS CORPORATE OFFICE AT
12/6C, PLOT NO.17
GURUKUL INDUSTRIAL AREA
FARIDABAD, HARYANA-121 003
3. SRI DWAIPYAN DUTTA
S/O SRI SWAPAN KUMAR DUTTA
AGED ABOUT 35 YEARS
M.D. OF BEN AND GAWS PVT LTD
R/O NO.105/90
BHUBAN MOHAN ROY ROAD
BARISHA RAHA COLONY
KOLKATA, WEST BENGAL-700008
4. SRI SWAPAN KUMAR DUTTA
S/O SRI KALIPADA DUTTA
AGED ABOUT 69 YEARS
DIRECTOR OF BEN AND
GAWS PVT LTD
R/O NO.105/90
BHUBAN MOHAN ROY ROAD
BARISHA RAHA COLONY
KOLKATA, WEST BENGAL-700008
5. SMT. JAYANTHI DUTTA
D/O SRI SHANTI BHUSHAN MITRA
AGED ABOUT 64 YEARS
DIRECTOR OF BEN AND
GAWS PVT LTD, R/O NO.105/90
BHUBAN MOHAN ROY ROAD
BARISHA RAHA COLONY
KOLKATA, WEST BENGAL-700008
...RESPONDENTS
(BY SMT. K P YASHODHA, HCGP FOR R-1;
SRI BINU.M, ADV. FOR SMT.APEKSHA LODHA, ADV. FOR
R2 & R3,
SRI MILIND DONGE, ADV. FOR R4 & R5)
-3-
CRL.P No. 7961 of 2020
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 29.10.2020 IN
CRL.R.P.NO.349/2019 PASSED BY THE II ADDITIONAL
SESSIONS JUDGE, MYSURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question order dated 29-10-2020 passed by the II Additional Sessions Judge, Mysuru in Criminal Revision Petition No.349 of 2019.
2. Heard Sri Sandesh J.Chouta, learned Senior counsel appearing for the petitioner, Smt. K.P. Yashodha, learned High Court Government Pleader appearing for respondent No.1, Sri M.Binu, learned counsel appearing for respondent Nos.2 and 3 and Sri Milind Donge, learned counsel appearing for respondent Nos.4 and 5.
3. Sans details, facts in brief, are as follows:-
Petitioner is the complainant and respondent Nos.2 to 5 are accused 1 to 4. The petitioner/complainant and the 2nd respondent/Ben & Gaws Private Limited, a company registered under the Companies Act, 1956 (for short 'the Company') entered into a transaction pursuant to which, the petitioner -4- CRL.P No. 7961 of 2020 purchased modular tanks having capacity of 1500 cubic meters for storage of raw materials. In furtherance of the said transaction, a letter of intent was issued by the petitioner for the purchase of the said tanks and agreed to pay 90% of the amount on certain terms and conditions which were agreed upon. In furtherance of terms and conditions so agreed upon, on 24.11.2017, a sum of Rs.17,15,000/- was paid towards purchase of two modular tanks and a sum of Rs.45,63,000/-
was paid towards complete purchase of modular tanks from the hands of accused No.2/Company.
4. It appears that the tanks began to mal-function despite repeated repairs. This generated certain dispute between the petitioner and the Company and when a sustainability test was undertaken by the accused, the first tank itself failed its sustainability test and the tank which was filled with water exploded resulting in the death of one person by name Arun Kumar and inflicted injuries to 7 other workmen who were in the close proximity to the tank.
5. On the said incident, a complaint comes to be registered by the associates of Arun Kumar in Crime No.243 of -5- CRL.P No. 7961 of 2020 2018 for offences punishable under Section 304A of the IPC. During the pendency of investigation, a private complaint is registered by the petitioner/complainant against the 2nd respondent/Company and other accused for offences punishable under Sections 420, 405, 120A, 120B and 304A of the IPC. This was referred for investigation at the hands of jurisdictional Police by the learned Magistrate under Section 156(3) of the CrPC.
6. In the meantime, in the crime registered by the associates of Arun Kumar, the deceased in Crime No.243 of 2018, the Police conduct investigation and file a 'B' report before the concerned Court. The Investigating Officer to whom the private complaint had been referred under Section 156(3) of the Cr.P.C. also files a 'B' report on the ground that both the complaints arose out of the same incident. The learned Magistrate on considering the 'B' report in the private complaint so filed, records sworn statement of the petitioner and takes cognizance of the offences punishable under Sections 120B, 406 and 420 of the IPC against the accused in the case that arose in P.C.R.No.1 of 2019 and fails to take cognizance of the offence under Section 304A of the IPC. The petitioner -6- CRL.P No. 7961 of 2020 challenges the said order of the learned Magistrate in leaving out Section 304A IPC from the array of offences in Criminal Revision Petition No.349 of 2019. The learned Sessions Judge sets aside the order of taking cognizance and directs the learned Magistrate to proceed from the stage of receiving the report from the hands of the Investigating Officer. Though the complainant succeeds before the learned Sessions Judge, he has called the order in question on the ground that even taking of cognizance of offences under Section 120B, 406 and 420 IPC is set aside by the learned Sessions Judge though the challenge was only to the exclusion of Section 304A IPC.
7. The learned Senior counsel Sri Sandesh J.Chouta appearing for the petitioner would contend that the learned Sessions Judge fell in error in setting aside the order which takes cognizance of the offences on a confusion that the concerned Court had not taken cognizance and therefore, had directed filing of a protest petition on a 'B' report so filed. The protest petition was not the issue brought before the Sessions Judge at all as it was preferred by the accused and not the complainant. Therefore, he would submit that the revision -7- CRL.P No. 7961 of 2020 petition requires re-consideration at the hands of the learned Sessions Judge.
7.1. On the other hand, the learned counsel representing the respondents would seek to submit that the very initiation of proceedings against them are erroneous and have to be obliterated.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
9. The afore-narrated facts are not in dispute. Two proceedings emerge from a solitary incident of death of Arun Kumar on explosion of tank - one in P.C.R.No.1 of 2019 which is referred by the learned Magistrate for conduct of investigation and the other in Crime No.243 of 2018. In Crime No.243 of 2018, the police file a 'B' report. The Investigating Officer investigating the reference in P.C.R. No.1 of 2019 also files a 'B' report on the ground that 'B' report is already filed in Crime No.243 of 2018. The learned Magistrate on receipt of 'B' report in the matter that was referred to for investigation proceeds to record sworn statement, takes cognizance of the -8- CRL.P No. 7961 of 2020 offence punishable under Sections 120B, 406 and 420 IPC but drops Section 304A from the array of offences. The entire order is called in question by the respondents/accused before the learned Sessions Judge in Criminal Revision Petition No.349 of 2019. The learned Sessions Judge passes the following order:
"15. One of the grounds of challenge to the correctness of this order is that on the receipt of the report the Complainant did not lodge the protest Petition and instead directly the sworn statement is recorded and after recording the sworn statement the cognizance is taken. The counsel for the Complainant submitted when the Court has proceeded to record the sworn statement it amounts to the taking of the cognizance of the offence.
16. The arguments of the learned counsel for the Complainant would have been accepted, if there was no order of taking cognizance in the impugned order dated 5.10.2019 which was passed after the recording of the sworn statement. There is no necessity that the words cognizance is taken has to be specifically used to say that the learned Magistrate has taken cognizance of the offence. In this case as there is a specific order of taking cognizance after the recording of the sworn -9- CRL.P No. 7961 of 2020 statement it has to be held that the learned Magistrate has not taken cognizance before the recording of the sworn statement which is not a correct procedure.
17. As per Section 200 of Cr.P.C. the Magistrate has to first take cognizance if there are materials to take cognizance of any of the offences and thereafter, proceed to record the sworn statement and later after examining the records if there are sufficient grounds to proceed against the Accused can issue process under Section 204 of Cr.P.C. or if there are no grounds can dismiss the complaint as per Section 203 Cr.P.C.
18. There are rulings of the Hon'ble Supreme Court in Criminal Appeal No. 1015 Of 2019 between Vishnu Kumar Tiwari vs. State Of Uttar Pradesh Through Secretary Home, Civil Secretariat Lucknow And Another and of Our Hon'ble High Court in the case of Veerappa And Others vs Bhimareddappa decided on 26 July, 2001 reported in 2002 CriLJ 2150, ILR 2002 KAR 1665, 2001 (5) KarLJ 391 wherein the procedure that has to be followed in the cases of this type, is laid down.
19. The Magistrate has to take cognizance of the offence as per Section 190 of Cr.P.C. In this case though the Police report does not make out any case
- 10 -CRL.P No. 7961 of 2020
to take cognizance, the Magistrate could examine the complaint and if there are materials, can take cognizance on the basis of the private complaint filed by the Complainant. Therefore, it can be safely held that the learned Magistrate can take the cognizance of the offence only on the basis of the private complaint as per Section 190(1)(a) if in the opinion of the Magistrate the said complaint contains the facts which constitute the offence. The Trial Court has to proceed with the matter as per Chapter-XV of the Cr.P.C. unless the Court directs the further investigation.
20. The Complainant should have filed the formal protest Petition against the report of the Investigating Officer. The Court should have then examined the report of the Police Officer, the protest Petition and the complaint and should have proceeded to take cognizance if there are sufficient materials and later to record the sworn statement. Hence, this Court is of the opinion that the impugned order is incorrect and calls for interference by this Court.
21. As the order is set aside on mere procedural lapse, this Court is not expressing any opinion on the merits of the case regarding the issue of process. It is for the Trial Court to again reconsider the matter and proceed with the same as
- 11 -CRL.P No. 7961 of 2020
per law. Hence, this Court holds that the impugned order passed by the learned Magistrate is incorrect and calls for interference by this Court. Hence, this point is answered in the Affirmative.
POINT NO.2
22. In the result, this Court proceeds to pass the following;
ORDER The Criminal Revision Petition filed by the Petitioner under Section 397 of Cr.P.C., is allowed.
The Order dated 5.10.2019 in PCR.No.1/2019 (C.C.No.48/2019) on the file of Hon'ble Senior Civil Judge & JMFC., at Nanjangud is set aside.
The learned Magistrate shall proceed with the case as follows:
The learned Magistrate shall close the case in C.C.No.48/2019 in CIS and also in the register No.III on the basis of this order.
The learned Magistrate shall take back the complaint on his file in its original number PCR.1/2019.
- 12 -CRL.P No. 7961 of 2020
The learned Magistrate shall proceed with the case from the stage of receiving the report from the Investigating Officer and grant an opportunity to the Complainant to file the protest Petition to the said report and proceed with the case as per provisions of Chapter-XV of Cr.P.C.
The Revision Petitioners / Accused shall have the right to participate in the proceedings before the learned Magistrate only if the process is issued against them as per Section 204 of Cr.P.C.
Office to send the copy of this Order to the Trial Court along with the Trial Court Records." The learned Sessions Judge directs the learned Magistrate to proceed in the manner depicted hereinabove. The learned Sessions Judge directs that the learned Magistrate shall proceed with the case from the stage of receiving the report from the Investigating Officer, grant an opportunity to the complainant to file the protest petition to the said report and the accused shall have a right to participate in the proceedings before the learned Magistrate only if the process is issued against them in terms of Section 204 of the Cr.P.C. It requires
- 13 -
CRL.P No. 7961 of 2020to be noticed that the criminal revision petition was filed by the accused and not the complainant. The issue was naturally with regard to protest petition or otherwise. The challenge in the revision petition was to the entire order of taking cognizance of offences punishable as afore-quoted. Issuing of summons was what was challenged before the learned Sessions Judge. The learned Sessions Judge appears to have generated obfuscation and directs a protest petition to be filed by the complainant. That stage was already over as sworn statement was recorded and summons were issued to the accused after taking cognizance of offences punishable under Sections 120B, 406 and 420 though Section 304A was excluded by the order taking cognizance. That being the issue, the learned Sessions Judge has misdirected himself on the challenge and, therefore, the matter requires reconsideration at the hands of the learned Sessions Judge.
10. For the aforesaid reasons, I pass the following:
ORDER i. Criminal petition is allowed.
ii. The order dated 29-10-2020 passed in Criminal Revision Petition No.349 of 2019 by
- 14 -CRL.P No. 7961 of 2020
the II Additional Sessions Judge, Mysuru stands quashed.
iii. The matter is remitted back to the learned Sessions Judge to re-consider Crl.R.P.No.349 of 2019 on the merit of the matter without giving scope to further obfuscation.
iv. All the contention of both parties are kept open.
Sd/-
JUDGE VM List No.: 1 Sl No.: 56