Karnataka High Court
Mr Ravi Chandra Adusumalli vs State Of Karnataka on 18 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.6420/2017
BETWEEN:
MR RAVI CHANDRA ADUSUMALLI
S/O LATE MR SUBBARAO ADUSUMALLI,
AGED ABOUT 41 YEARS,
SHOWN IN THE COMPLAINT
AS HAVING HIS ADDRESS AT
ROBEMALL APPARELS PRIVATE LIMITED,
1ST FLOOR, BPL COMPLEX,
SY NOS.20/1,20/2 ADN 20/3,
11TH K.M ARAKERE
BANGALORE-560076
ACTUALLY RESIDING AND HAVING
HIS ADDRESS AT:
1045 QUARRY MOUNTAIN LANE,
PARK CITY, UTAH,
UNITED STATED OF AMERICA-84098
... PETITIONER
(BY SRI.SRINIVASA RAGHAVAN V, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH THE SENIOR
LABOUR INSPECTOR,
BENGALURU - 560029
REPRESENTED BY SPP,
HIGH COURT BUILIDING,
BANGALORE - 560001
... RESPONDENT
(BY SRI. SANDESH J .CHOUTA, SPP)
2
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING QUASH THE IMPUGNED ORDER DATED
21.5.2016 PASSED BY THE M.M.T.C.-V, BENGALURU IN
PCR NO.43/2016 (SUBSEQUENTLY NUMBERED AS
C.C.NO.6458/2016) AT ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri.Srinivasa Raghavan V., learned Counsel appearing for petitioner and Sri.Sandesh J. Chouta, learned HCGP appearing for respondent-State. Perused the records.
2. Respondent filed a complaint under Section 200 Cr.P.C. r/w Section 22-A of the Minimum Wages Act, 1948 (hereinafter referred to as 'the Act' for short) alleging that petitioner herein has committed an offence punishable under Section 22-A of the Act. Said complaint came to be presented before the jurisdictional Court on 08.02.2016. Learned Magistrate in exercise of power vested under Section 22-B of the Act took cognizance of the offence and ordered for issue of summons to accused (petitioner) vide order dated 3 21.05.2016. Being aggrieved by the same, petitioner is before this Court.
3. Sri.Srinivasa Raghavan, learned Counsel appearing for petitioner has primarily raised two contentions; (i) that learned Magistrate without applying judicial mind has in a mechanical manner taken cognizance of the offence; (ii) the company which is alleged to have not complied with the statutory requirement is not made a party to the proceedings; amongst other grounds.
4. Per contra, Sri.Sandesh J. Chouta, learned HCGP appearing for respondent/State would support the order under challenge and contends that irregularity, if any, would not come in the way of learned Magistrate taking cognizance of said offence and allegations made in the complaint would disclose that there are violations of statutory provisions of the Act and as such, trial Court has rightly taken cognizance of the offence and issued summons to petitioner. Hence, he prays for rejection of the petition. 4
5. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that learned Magistrate has taken cognizance of offence on 21.05.2016 by the following order:
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JA.JA.n.¹-5 5
6. In the case of M/s. PEPSI FOODS LTD. AND ANOTHER vs. SPECIAL JUDICIAL MAGISTRATE AND OTEHRS reported in (1998) 1 SCC 749 Hon'ble Apex Court has held that "exercise of power under Section 204 of Cr.P.C. to summon a accused in a criminal case is a serious matter and process of criminal law cannot be set into commission in mechanical manner". It has also been held that order of summoning the accused must reflect that Magistrate has applied his mind to the facts of the case and law governing the issue. It has been held:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in brining charge home to the accused. It is not 6 that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
7. Under similar circumstances, this Court in the case of YOGESH DESAI AND OTHERS vs. THE STATE OF KARNATAKA reported ILR 2016 Kar. 4820 has held that "where there is no speaking order at the stage of application of provision of Section 190 or 204 of Cr.P.C., there must be sufficient indication of application of mind by the Magistrate to the facts constituting the commission of offence so as to proceed against the offender(s), since summoning of accused in a criminal case being a serious matter, which may curtail the individual right." As such petition came to be allowed and matter came to be remitted back to the Magistrate.
7
8. Keeping the above principles in mind when the facts on hand are examined, it requires to be noticed that respondent herein has filed a complaint under Section 22-A of the Minimum Wages Act, 1948 alleging that petitioner has committed an offence punishable under Sections 18 and 29 of the Act read with Rules 23, 29-B and 30-A of the Rules. A bare reading of the complaint does not indicate or disclose about the role of the petitioner in committing the alleged offences. The allegations in the complaint does not disclose that at the time of the alleged offence being committed, petitioner was incharge of and/or was responsible to the company for the conduct of its business, so as to hold him guilty of the alleged offence for being punished. In the absence of such averments and the fact that accused No.2 and 3 having already appeared before the trial Court on 05.05.2017 and pleaded guilty and convicted for the offence punishable under Section 22-A of the Act by ordering to pay a total fine of ` 20,000/-, there is no need or necessity for the proceedings being continued against the petitioner. 8
9. Further, allegations made in the complaint and the material relied upon by the complainant in support of the same neither discloses the commission of any offence and they do not make out a case against petitioner. In fact, the intriguing factor which cannot go unnoticed is the company has not been arraigned as an accused in the complaint - Annexure-B, which is the condition precedent to fix vicarious liability on the petitioner as the Director of said company. On this ground also, prosecution cannot be continued against the petitioner. In the absence of allegation or averment in the complaint that offence is committed by the company or petitioner was in-charge and responsible to the company for conduct of its business at the time offence was committed, it would not attract penal provision and Section 22-C of the Minimum Wages Act mandates that proceedings can be initiated against such persons as specified therein viz., persons responsible for committing such offence. The complaint in question does not disclose that alleged offences were committed by the company with the knowledge of the 9 petitioner or with his consent or due to his neglect offence had been committed or he had failed to exercise due diligence to prevent the commission of the alleged offence or had failed to present the same. In that view of the matter, proceedings initiated against petitioner cannot be sustained.
For myriad reasons aforestated, order taking cognizance of the offence and issuance of process against the petitioner in the instant case cannot be sustained.
Hence, for the reasons aforestated, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Order dated 21.05.2016- Annexure-A taking cognizance of offence under Section 22-B of Minimum Wages Act 1948 and issuing summons to petitioner is hereby set aside.
SD/-
JUDGE *sp