Orissa High Court
Court Of The Special Judge (Vigilance) vs State Of Odisha (Vigilance) ...... ... on 23 September, 2022
Author: Satrughana Pujahari
Bench: Satrughana Pujahari
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO.2272 OF 2021
In the matter of an application under Section 482 of the Code of
Criminal Procedure challenging the Charge-sheet No.04 dated
30.03.2012, filed by Balasore Vigilance P.S. in VGR Case No.23 of
2011, corresponding to T.R. No.16 of 2012, registered in the
Court of the Special Judge (Vigilance), Keonjhar as well as the
order of cognizance dated 21.11.2012 passed by the learned
Special Judge (Vigilance), Keonjhar.
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Md. Mofazzalur Rahman & another. .......Petitioners
-Versus-
State of Odisha (Vigilance) ...... Opp.party
-------------------------------------------------------------------------------------------- Advocate(s) who appeared in this case through Hybrid mode:
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For Petitioners - M/s. Pranaya Kumar Dash, V. Mohapatra, G. Khanna, S. Mohanty, Advocates.
For Opp.party - Mr. Srimanta Das,
Sr. Standing Counsel (Vig.)
PRESENT:-
THE HON'BLE SHRI JUSTICE SATRUGHANA PUJAHARI
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Date of judgment:-23.09.2022 S. PUJAHARI, J. This is an application filed by the petitioners under Section 482 of the Code of Criminal Procedure (for short the "Cr.P.C.") seeking for quashing of the Charge-sheet dated 30.03.2012 filed in Balasore Page 1 of 30 // 2 // Vigilance P.S. Case No.55 of 2009 (VGR Case No.23 of 2011), corresponding to T.R. No.16 of 2012 in the court of the learned Special Judge (Vigilance), Keonjhar, the order dated 21.11.2012 passed by the said learned Court taking cognizance of the offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short the "P.C. Act") and under Sections 201, 420, 379, 120-B of IPC, Section 21 of the MMDR Act, 1957 and Section 2 of the Forest (Conservation) Act, 1980 against the petitioners and co-accused persons, and the consequential proceedings.
2. Heard the learned counsel for the petitioners and Mr. Srimanta Das, the learned Sr. Standing counsel appearing for the Vigilance Department.
3. The F.I.R. in this case appears to have been lodged by the Deputy Superintendent of Police, Vigilance Cell, Unit Office, Bhubaneswar on the basis of Vigilance enquiry conducted by the Vigilance Team on 10.11.2009 and 11.11.2009 in respect of Balada Block Iron Ore Mines of M/s. Serajuddin & Co. over an area of 829.27 acres / 335.594 Hect. at village-Balada under Barbil Page 2 of 30 // 3 // Tahasil, District- Keonjhar, on the allegation of illegal mining activities of the said company. Pursuant to the said report, a case was registered by the Superintendent of Police, Vigilance, Balasore Division, Balasore, and on completion of investigation, charge-sheet was laid for the offences indicated above against fourteen accused persons including the present petitioners, who are the Partners of the aforesaid firm, namely, M/s. Serajuddin & Co., i.e., the mining lease holder in respect of Balada Iron Ore Mines. On the basis of the charge-sheet so submitted, the learned Special Judge (Vigilance), Keonjhar has taken cognizance of those offences and issued process to the petitioners and the co-accused persons. Hence, the present application.
4. The petitioners have sought for quashing of the Charge-sheet, the impugned order of cognizance and the consequential proceeding on the grounds, inter-alia, that the very inception of the prosecution is unauthorized, inasmuch the Vigilance Police had no authority to conduct the joint enquiry or verification prior to issuance of the Notification No.IV(A)SM-101/209-307/SM dated Page 3 of 30 // 4 // 27.01.2010 which devolved limited power on police for the purpose of detection, seizure and search into the alleged Mining activities. Admittedly, the F.I.R. in the present case has been drawn on the basis of a Vigilance enquiry report said to have been conducted on 10.11.2009 and 11.11.2009, i.e., prior to issuance of the aforesaid Notification. It is the further contention of the petitioners that the charge-sheet as submitted against them is also bereft of any factual or legal basis, and that the learned trial Court has passed the impugned order of cognizance without application of judicial mind. The allegation wise counter submissions made by the petitioners vide their application at hand may be broadly outlined as under:-
(i) It is alleged by the prosecution that the Mining leaseholder had disproportionately despatched a quantity of 4,283.723 MT of Iron Ore from 4.290 ha. of forest area without any forest clearance and the cost of the same comes to Rs.21,41,862.00 @ Rs.500/- per ton approximately. It is further alleged that there Page 4 of 30 // 5 // was illegal excavation and despatch of a quantity of 80,262 MT of Iron Ore to the tune of Rs.10,43,40,600/- by the Lessee-company from the DLC forest land without forest clearance. It is also alleged by the prosecution that the Lessee-company had developed quarries in between virgin land in Block-D and Block-E and also developed benches in Block-D within the virgin of DLC Forest and Plot Nos.1 and 2 of village- Nayagarh, and thereby illegally produced Iron Ore of 55,429.669 MT by excavating 92,903.048 cubic meter in the DLC virgin forest without forest clearance, and the cost of the same amounts to Rs.7,02,20,963/-.
As against these allegations, it is the submission of the petitioners that pursuant to the order dated 21.04.2014 of the Apex Court in W.P.(C) No.114 of 2014, the State Government had submitted a list of 51 Iron Ore and Manganese Leases which had reportedly carried out mining operations in violation of Page 5 of 30 // 6 // the Forest (Conservation) Act, 1980, and that the Lessee - M/s. Serajuddin & Co. was not shown in the said list as a violator, and hence the allegation brought vide the present charge- sheet against the Lessee-company regarding violation of any of the provisions of the Forest (Conservation) Act, 1980 is wholly unwarranted and erroneous. It is further submitted by the petitioners that the Mining lease that was granted to the Lessee on 15.11.1960 was subsequently renewed from time to time and it was only on 06.01.1998 some portions of the Mining leases in the State of Odisha including that of the present Lessee-company were identified as DLC Forest pursuant to the order dated 12.12.1996 passed by the Apex Court in W.P.(C) No.202 of 1995. It is pointed out by the petitioners that nothing has been indicated in the present charge-sheet showing any specific period during which the Lessee-company allegedly carried out Mining operation in any Page 6 of 30 // 7 // DLC Forest area of the leasehold area. It is further contended by the petitioners that even if it is assumed for sake of argument that there was any violation of the aforesaid Act by the Lessee-company, the prosecution brought for any such violation is not maintainable, inasmuch as no complaint has been filed by the Authorized persons in view of the provisions of the said Act, much less after issuing the requisite show-cause notice to the alleged violators. The petitioners have submitted a list of 51 violators of Forest (Conservation) Act, 1980, which was submitted by the State Government to the Central Empowered Committee, as Annexure-6 of the application.
(ii) It is alleged by the prosecution that during the Vigilance enquiry, it was found that there was discrepancy of 51,043.17 MT of size Iron ore and 1,06,996 MT of Iron Ore Fines between the physical balance and the book balance, leading Page 7 of 30 // 8 // to the conclusion that the aforesaid quantities of the produce were sold clandestinely without any payment of royalty and sales tax and that, thereby the State Exchequer incurred loss of Rs.86,50,015/-. In this context, it is submitted by the petitioners that as per the statutory returns filed by the Lessee-company, the closing balance for the seized Iron Ore and Iron Ore Fines were 4,47,154.6 MT and 11,09,256 MT respectively as opposed to balance of 4,50,534.04 MT of sized iron ore and 11,88,879.29 MT of Iron Ore Fines as alleged in the charge-sheet. It is pleaded by the petitioners that even assuming the physical balance as alleged by the prosecution to be correct, the variation in stock comes to 0.4% only which is miniscule in nature considering the huge amount of stock handled by the Lessee over the period of around fifteen years. It is further pleaded that variation in stock even if calculated on the basis of the physical Page 8 of 30 // 9 // balance as alleged in the charge-sheet, would amount to around 0.5% of the entire stock handled from 1996 onwards by the Lessee which is also a miniscule figure compared to the huge amount of Ore handled by the Lessee. The allegation is also found fault with by the petitioners on the ground that the procedure of measurement of stock, i.e., Chain or Tape measurement as adopted in this case is susceptible to an error of a substantial nature, and therefore, the allegation regarding pecuniary advantage is baseless. The petitioners have also made a reference to the policy decision taken in the Review meeting dated 31.05.2011 held by the Minister, Steel & Mines and Industries, Government of Odisha for adopting an uniformed procedure across the State for ensuring correct verification of the facts regarding stock measurement. It was decided in the said meeting that Geometrical stacking be followed and the necessary Page 9 of 30 // 10 // anomalies, such as, compaction factor, void, density etc. be taken into consideration while carrying out the stock measurement. It is submitted that in the present case, the aforesaid directions have not been followed, for which the discrepancy shown by the prosecution between physical balance and book balance cannot be accepted to be correct. The petitioners have produced a copy of the Minutes of the aforesaid Review meeting at Annexure-7 of the application.
(iii) The prosecution has further alleged that the Lessee-company carried out production in excess of the estimated production as provided under the approved IBM plan and thereby committed theft by illegal selling the excess produce. As against this allegation, the petitioners submit that the limits mentioned in the Mining plan are always considered to be the tentative annual production targets for a five years period, rather than the maximum Page 10 of 30 // 11 // production which can be carried out by the Lessee. In this context, the petitioners invite a reference to the Manual published by the Indian Bureau of Mines (IBM) on Appraisal of Mining plan in 2014 which states that the limits mentioned in the Mining plan are only tentative in nature. The relevant extracts of the said Manual have been submitted by the petitioners at Annexure-8 of the application. The petitioners have also referred to the report dated 16.10.2014 submitted by the Central Empowered Committee before the Apex Court in W.P.(C) No.114 of 2014 wherein it has been specifically stated that the total production target provided in the Mining plan should be taken as a criteria for determining the performance of the Lessee rather than the annual production targets within five year periods. The relevant extract from the said report has been submitted by the petitioners at Annexure-9 of the application. It is further Page 11 of 30 // 12 // contended by the petitioners that as per the judgment dated 02.08.2017 passed by the Apex Court in the matter of Common Cause vrs. Union of India and others, in W.P.(C) No.114 of 2014, no culpability can be attributed to the Lessee for having committed any offence under the MMDR Act, 1957 or the Indian Penal Code for any production in excess of the approved quantity under the Mining plan, inasmuch as for any such indulgence, the concerned Lessee becomes liable to pay compensation under Section 21 of the MMDR Act, 1957, equal to the price of the Ore already sold by such Lessee. According to the petitioners, liability to pay compensation cannot be equated with penal liability.
(iv) It is further alleged by the prosecution that the Lessee-company evaded payment of sales tax to the tune of Rs.13,06,50,441/- by submitting fabricated statements on quality and value of Iron Ore. As against this allegation, it is the Page 12 of 30 // 13 // submission of the petitioners that the basis of the assessment made by the Vigilance Team leading to such allegation being faulty and misconceived, such an allegation is not sustainable in law. According to the petitioners, the prosecution has placed reliance on the market rate of the OMC as the actual price, although the Lessee has sold as per the prices shown in its sale register and paid sales tax as applicable on such sale. The petitioners have also placed reliance on the clearance certificate issued by the Sales Tax Authorities vide Annexure-10 to the application. According to them, there was no default on the part of the Lessee-company in the face of the said Clearance Certificate and hence, the allegation made on this count is baseless.
5. Besides the contentions as above, the petitioners have also relied on certain subsequent events to contend that the launching of the present prosecution Page 13 of 30 // 14 // is not sustainable in law. It is averred by him that the Multi-Disciplinary Committee constituted by the State Government on 05.11.2016 comprising Director of Mines, Odisha, Representatives of Director, Vigilance, Representative of Principal Secretary, Forest & Environment Department, Regional Controller of Mines, Indian Bureau of Mines and Director of Geology re- examined the Vigilance cases in relation to Mining leases including the present case by holding several meetings in the year 2017 and it has been observed, inter-alia, by the said Committee that the allegations made by the Vigilance vide the charge-sheet in the present case are not correct. The petitioners further submit that in the aftermath of the judgment dated 02.08.2017 of the Apex Court in W.P.(C) No.114 of 2014, in the case of Common Cause vrs. Union of India, the Special Investigation Team (Black Money) observed that a fresh look may be given by the Multi-Disciplinary Committee, and that the Enforcement Directorate should be a part of the said Committee, for taking a fresh decision. In the light of the judgment of the Apex Court dated 02.08.2017 the Page 14 of 30 // 15 // Vigilance cases in relation to Mining lease were re-visited by the Committee and the said Committee vide its subsequent report dated 06.12.2018 reiterated its views given in the earlier report. The Committee has found the allegations made by the Vigilance to be based on misconception and incorrect facts and figures. It is ultimately submitted by the petitioners that in view of the reports of the aforesaid Multi-Disciplinary Committee, nothing survives to be decided in the present Vigilance case, and hence, the same should be quashed to prevent further abuse of the process of the Court.
6. It is further submitted by the learned counsel for the petitioners that, the procedures contemplated under the MMDR Act having not been followed in the present case, and the Vigilance Department being not competent to launch the prosecution in terms of Section 22 of the MMDR Act, and no complaint as required by the said Act having been made by the Authorized Officer, the charge brought under the said Act is not sustainable in law. It is his further submission that the Lessee- company having already been exonerated from the Page 15 of 30 // 16 // charge of violation of the provisions under the Forest (Conservation) Act in the civil proceedings before the Apex Court in W.P.(C) No.114 of 2014, no criminal proceeding for violation of the said Act could have been initiated. In this context, the petitioners have placed reliance on a decision of the Apex Court in the case of Radheshyam Kejriwal vrs. State of West Bengal, reported in (2011) 3 SCC 581, wherein it has been held that a person exonerated in civil adjudication should not be proceeded against for the same wrong in a criminal case, the underlying principle being the higher standard of proof in criminal proceedings. The aforesaid view has been reiterated by the Apex Court in the case of Ashoo Surendranath Tewari vrs. CBI, reported in (2020) 9 SCC 636.
7. Referring a Three Judge Bench decision of the Apex Court in the case of State of Orissa vrs. Debendra Nath Padhi, reported in (2005) 1 SCC 568, the learned counsel for the petitioners submitted that the documents of unimpeachable character can be taken into consideration by the High Court for quashing of a Page 16 of 30 // 17 // criminal proceeding in exercise of power under Section 482 of Cr.P.C. The said principle has been reiterated in a later decision of the Apex Court in the case of Rukmini Narvekar vrs. Vijaya Satardekar, reported in (2008) 14 SCC 1. The principle settled by the said Authorities is that although at the stage of framing of charge the accused has no scope to produce any evidence before the trial Court, in a proceeding taken therefrom under Section 482 of Cr.P.C., the High Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. Needless to mention that the said principle can also be applied to a proceeding under Section 482 of Cr.P.C. for quashing of the order of cognizance and the consequential proceedings. The learned counsel has also placed reliance on a decision of the Apex Court in the case of Anita Malhotra vrs. Apparel Export Promotion Council, reported in (2012) 1 SCC 520, in which it was held that if on the face of a document which is beyond any suspicion and placed on record by the accused, it is discovered that the allegation Page 17 of 30 // 18 // / charge against the accused cannot stand, it is incumbent on the High Court to look into those documents which have the bearing on the matter, even at the initial stage and grant relief to the accused, in exercise of the jurisdiction under Section 482 of Cr.P.C.
8. The learned counsel also emphasized that since the entire allegation by the prosecution has been directed against the Lessee-company, i.e., M/s. Serajuddin & Co., the petitioners, who are the partners of the said company, could not have been charge- sheeted in absence of any specific allegation against them much less any evidence showing or suggesting them to have acted independent of the will or interest of the company. In support of his such contention, he has placed reliance on the decisions of the Apex Court in the cases of Sunil Bharti Mittal vrs. CBI, reported in (2015) 4 SCC 609, Sharad Kumar Sanghi vrs. Sangita Rane, reported in (2015) 61 OCR (SC) 551 and Ravindranath Bajpe vrs. Mangalore Special Economic Zone Ltd. and others, reported in AIR 2021 SC 4587 and some other authoritative pronouncements. Page 18 of 30
// 19 //
9. The learned counsel for the petitioners has also placed reliance on a single Bench decision of this Court rendered in a batch of cases vide CRLMP No.35 of 2022, CRLMP No.36 of 2022 etc. (decided on 18.02.2022), to submit that in similar fact situations, the prosecution has been quashed in those cases.
10. Per contra, the learned Sr. Standing counsel appearing for the Vigilance Department submits that present being not a stage of the proceeding to make any threadbare analysis of the materials placed by the prosecution, and what all that is necessary being to find out as to whether or not there are prima-facie materials against the accused to be proceeded with for the offences alleged, the contentions advanced by the petitioners do not deserve to be looked into. According to him, there are enough materials on record showing involvement of the petitioners in criminal conspiracy and other offences as indicated above, and that technical flaws, if any, in the prosecution set up should not come in the way of doing substantial justice. It is his further submission that the contentions raised by the petitioners being in the nature Page 19 of 30 // 20 // of their defence plea to be substantiated through evidence at the stage of trial, this Court at the threshold of the proceeding should not interfere with the impugned order in exercise of its inherent jurisdiction.
11. With regard to the scope of exercise of inherent power by the High Court to quash a criminal proceeding, the Apex Court in the case of R.P. Kapur vrs. State of Punjab, reported in AIR 1960 S.C. 866, held as under:-
"xxxxx It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against Page 20 of 30 // 21 // an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in Page 21 of 30 // 22 // support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. xxxxxxxx"
12. Further, in the case of State of Haryana vrs. Bhajan Lal, reported in 1992 Supp.(1) SCC 335 the Apex Court also illustrated certain circumstances, under which the High Court can exercise its power under Section 482 of Cr.P.C. to quash a criminal proceeding at the threshold, if continuance of the proceeding is found to be tantamount to abuse of the process of the Court.
13. In the case at hand, the documents relied on by the petitioners do not appear to have been disputed by the Vigilance Department. It further appears from the charge-sheet and other papers on record that the entire allegation is directed against the Lessee-company, i.e., M/s. Serajuddin & Co.. There is hardly any allegation in Page 22 of 30 // 23 // specific against the petitioners regarding their involvement in any of the alleged offences, independent of the will, intent or interest of the Lessee-company. The allegation against the Lessee-company appears to be essentially regarding alleged violation, illegalities etc. in relation to Mining activities, attracting the provisions of the MMDR Act. Needless to mention that no prosecution for any offence under the said Act can be initiated except on a complaint by the Authorized Officer in view of Section 22 of the said Act. A complaint is also required for launching a prosecution under the Forest (Conservation) Act, 1980. Thus, statutory requirements have not been followed in the present case.
14. In the case of Sunil Bharti Mittal (supra) the Apex Court held as follows:-
"42. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy.Page 23 of 30
// 24 // However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision."
15. In the case of Sharad Kumar Sanghi (supra) the Apex Court held as under:-
"9. The allegations which find place against the Managing Director in his personal capacity, as we notice, are absolutely vague. When a complainant intends to proceed against the Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. In Maksud Sajyad vs. State of Gujarat (2008) 5 SCC 668, it has been held, thus:
"where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any Page 24 of 30 // 25 // provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein (2008) 5 SCC 668 were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligator on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."
10. The same principle has been reiterated in S.K. Alagh v. State of UP (2008) 5 SCC 662, Maharashtra State Electricity Distribution Company Ltd. v. Datar Switchgear Ltd. (2010) 10 SCC 479; and GHCL Employees Stock Opinion Trust v. India Infoline Ltd. (2013) 4 SCC 505.
13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the Page 25 of 30 // 26 // considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant."
16. In the case of Pradeep S. Wodeyar vrs. The State of Karnataka, reported in 2021 S.C. 503 the Apex Court held as under:-
"80 Vicarious liability and Section 23 of MMDR Act A-1 submitted that the charge-sheet does not ascribe any role to A-1 and hence the process initiated against him must be quashed. The appellants in support of their argument relied on Sunil Bharati Mittal (supra), Shiva Kumar Jatia v. NCT of Delhi60, Sunil Sethi v. State of Andhra Pradesh61 and Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd.62 In Sunil Bharati Mittal (supra), a three- judge Bench of this Court observed that the general rule is that criminal intent of a group of people who undertake business can be imputed to the Company but not the other way around. Only two exceptions were provided to this general rule: (i) when the individual has perpetuated the commission of offence and there is sufficient evidence on the active role of the individual; and (ii) Page 26 of 30 // 27 // the statute expressly incorporates the principle of vicarious liability. Justice Sikri writing for a three-
judge Bench observed:
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision."
17. In the case of Ravindranatha Bajpe (supra) the Apex Court also held as follows:-
"27. As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy Page 27 of 30 // 28 // General Manager and Planner & Executor. Merely because they are Chairman, Managing Director / Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot be held vicariously liable for the offences committed by A1 & A6.
28. From the order passed by the learned Magistrate issuing the process against the respondents herein - accused nos.1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie case against respondent nos.2 to 5 and 7 & 8. Merely because respondent Nos.2 to 5 and 7 & 8 are the Chairman / Managing Director / Executive Director / Deputy General Manager / Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against respondent nos.1 to 8 herein - original accused nos.1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC."Page 28 of 30
// 29 //
18. In view of the well settled principle of law, as apparent from the decisions quoted above, the prosecution launched against the petitioners is found to be legally not sustainable, although the petitioners are admittedly Partners of the Lessee-company. Further, for the discussion made hereinbefore, the offence of criminal conspiracy and other offences as alleged, are found to be not made out against the petitioners, especially when there is no specific allegation in that regard against them either as an individual or a partner of the Lessee- company. Hence, this Court finds merit in the contention of the petitioners that continuance of the criminal proceeding against them will amount to abuse of the process of the Court. The CRLMC, therefore, deserves to be allowed.
19. In the result, the CRLMC is allowed, and the impugned order passed in T.R. No.16 of 2012 in the court of the learned Special Judge (Vigilance), Keonjhar qua the petitioners as well as the consequential proceedings against them stand quashed. Page 29 of 30
// 30 //
20. Urgent certified copy be granted on proper application.
( S.Pujahari ) Judge Orissa High Court, Cuttack.
The 23rd day of September, 2022/MRS Page 30 of 30