Karnataka High Court
Ganesh And Ors vs The State Of Karnataka And Anr on 28 June, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.200704/2022
Between:
1. Ganesh S/o Kishan Rao,
Age: 35 years, Occ: CEO,
PKPSN, Village Manhalli,
R/o: # 294, Village Manhalli,
Tq. & Dist. Bidar-585403.
2. Prabhakar S/o Kashappa,
Age: 58 years, Occ: Manager,
Karnataka State Marketing
Federation, Gandhi Gunj, Bidar
R/o: 17-4-266, Mallalli Road,
Kailash Layout, Bidar-585403.
3. Samaresh Das
S/o Swapan Kumar Das,
Age: 44 years, Occ: Compliance Officer,
Manager (DAP), PARADEEP PLANT,
IFFCO LTD., PRADEEP, ORISSA,
R/o: C-103, IFFCO Township Paradeep,
Paradeep, Jagatsinghapur,
Odhisha-754142.
... Petitioners
(By Sri Avinash A. Uploankar, Advocate)
2
And:
1. The State of Karnataka
Represented by Addl. SPP
High Court of Karnataka,
Kalaburagi Bench-585107.
2. The Government of Karnataka
Department of Agriculture,
Represented by the
Agriculture Officer and Fertilizer
Inspector, RSK Bidar (S)
O/o Assistant Director of Agriculture,
Tq. & Dist: Bidar.
... Respondents
(By Sri Gururaj V.Hasilkar, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to exercise inherent powers under Section
482 Cr.PC, examine the records and quash the taking
cognizance in CC No.2595/2018 (Private Complaint
No.177/2018) dated 27.08.2018, for the offence
punishable under clause 19(A) Fertilizers Control Order
1985 and under Section 7(i) a(ii) of Essential Commodities
Act 1955, pending before II-Addl. Civil Judge and JMFC-II
at Bidar, against the petitioners.
This petition coming on for Orders this day, the
Court passed the following:
3
ORDER
The petitioners who are arrayed as accused Nos.1 to 3 in C.C.No.2595/2018 (P.C.No.177/2018) on the file of learned II-Additional Civil Judge and JMFC-II, Bidar, (hereinafter referred to as 'Trial Court') are before this Court invoking inherent power of this Court under Section 482 of Cr.P.C., seeking to quash the order of taking cognizance dated 27.08.2018 for the offence punishable under clause-19(A) of the Fertilizers Control Order, 1985 (for short 'FCO, 1985') and under Section 7(i) a(ii) of the Essential Commodities, Act, 1955 (for short, hereinafter referred to as 'the Act').
2. Brief facts of the case are that the State represented by the Agricultural Officer, RSK Bidar (S) Cum Fertilizer Inspector, office of Director of Agriculture, Bidar, filed Private Complaint before the II-Additional Chief Judicial Magistrate First Class-II, Bidar, against accused Nos.1 to 3 alleging that accused No.1 is the CEO of Prathamika Krushi Pattina Sahakari Sangha Niyamitha, 4 Manhalli, accused No.2 is the Manager of Karnataka State Marketing Federation, Gandhi Gunj, Bidar and accused No.3 is the Compliance Officer, Manager of Di-ammonium phosphate manufacturing unit in Orissa, which is involved in manufacturing of substandard fertilizers. When the samples were drawn from the premises of accused No.1, it was found that the same were substandard. Thereby, the accused have committed offence under Clause-19(A) of the FCO, 1985 and under Section 7(i) a (ii) of the Act. Accordingly, he requested the Trial Court to take cognizance of the offences and to try both the accused.
3. The learned Magistrate took cognizance of the offences, registered the private complaint as criminal case and issued summons to accused Nos.1 to 3. This order is under challenge by accused Nos.1 to 3.
4. Heard Sri Avinash A. Uplaonkar, learned counsel for the petitioners and Sri Gururaj V. Hasilkar, learned High Court Government Pleader for the respondents-State. Perused the materials on record. 5
5. Learned counsel for the petitioners submitted that Section 10 of the Act is not complied with and therefore, cognizance could not have been taken by the learned Magistrate. On the sole ground, he prays for allowing the petition and quashing the criminal case.
6. Per contra, learned High Court Government Pleader opposing the petition submitted that petitioners are representing the company and therefore, there is compliance of Section 10 of the Act and the Criminal Case cannot be quashed by exercising inherent power under Section 482 of Cr.P.C., and accordingly, he prays for dismissal of the petition.
7. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned order of taking cognizance and criminal case is liable to be quashed invoking inherent 6 power under Section 482 of Cr.P.C.? What order?"
My answer to the above point is in 'Affirmative' for the following:
REASONS
8. Section 10(1) of the Act reads as under:
"10. Offences by companies.--
(1) If the person contravening an order made under section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:"
(emphasis supplied)
9. Bare reading of the section makes it clear that if the person contravening the order made under Section 3 is a company, the person incharge and responsible to the affairs of the company in conduct of the business as well 7 as company being deemed to be guilty of contravention are liable to be prosecuted. Admittedly, in the present case, the manufacturer i.e., IFFCO Ltd., Paradeep, Orissa, is not made as a party in the Private Complaint as well as in the Criminal Case. The learned Magistrate has lost sight of the mandatory provision of Section 10 of the Act. Therefore, I do find considerable force in the submission of the learned counsel for the petitioners.
10. The learned counsel for the petitioners has drawn my attention to the order passed by this Court in Criminal Petition No.200186/2022 wherein vide order dated 26.05.2022, criminal proceedings initiated against the accused therein was quashed, after quashing the order of taking cognizance by the Trial Court, on similar set of facts.
11. I have gone through the order passed in the said case. Even in the said case, the accused were arrayed alleging commission of the offence. But, the 8 Company was not made as one of the accused. It was held that there is non-compliance of Section 10 of the Act.
12. When it is obligatory on the part of the prosecuting agency to launch prosecution against the Company which is responsible for contravention of any of the provisions of the Act and has failed to array the Company as one of the accused, the prosecution must fail. Accused No.3 is the compliance officer representing the manufacturer of substandard fertilizer. For obvious reasons, Company is not made as one of the accused which is bad under Section 10 of the Act. Therefore, criminal proceedings initiated against the present accused is liable to be quashed. However, liberty is to be reserved in favour of the complainant to cure the defect and proceed against the accused in accordance with law.
13. In view of the above, I answer the above point in the affirmative and proceed to pass the following:
ORDER The petition is allowed.9
The impugned order dated 27.08.2018 passed by the Trial Court taking cognizance of the offence in Private Complaint No.177/2018 and registration of C.C.No.2595/2018 is quashed.
However, liberty is reserved with the complainant to cure the defect and proceed against the accused in accordance with law, if he is advised to do so.
Sd/-
JUDGE NB* Ct: SMP