Gauhati High Court
Ram Narayan Sharma & 2 Ors vs The State Of Assam And 2 Ors on 30 November, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
CRIMINAL PETITION NO. 513/2015
1. Ram Narayan Sharma,
S/O Late Gopal Sharma
R/O Gandhibasti, Chandmari,
P/S Chandmari, Guwahati-781003
Kamrup(M), Assam.
2. Sone Kalita,
C/O M/S Brahmaputra Valley,
Regional Handloom Weavers,
Cooperatives Society Ltd., Ambari,
Guwahati, Assam.
3. M/S Brahmaputra Valley Regional
Handloom Weavers Cooperatives Society
Ltd., Ambari, Guwahati, Assam.
----- Petitioners
- VERSUS -
1.State of Assam
2. Shri BVP Rao,
Secretary to the Government of Assam,
(Political Department)
3. S.P, CBI, ACB, Guwahati.
----- OppositeParties
BEFORE
Hon'ble Mr. Justice Hitesh Kumar Sarma
Advocate for the Petitioners : Mr. AK Bhuyan.
Advocate for Respondent No. 3 : Mr. SC Keyal, learned Standing
Counsel, CBI.
Date of hearing :26th of October, 2017.
Date of Judgment: 30th of November, 2017.
Criminal Petition No. 513 of 2015 Page 1 of 9
JUDGMENT & ORDER (CAV) By way of this application under Section 482 of the Code of Criminal Procedure (Cr.PC), the petitioners Sri Ram Narayan Sharma and Sri Sone Kalita pray for quashing of the order dated 28.04.2015 passed by the learned Special Judicial Magistrate, Assam at Guwahati in C.R Case No. 2617/1998.
[2] The fact necessary for adjudication of the present application may be set forth as follows;
[3] On 27.06.1994, an FIR was registered by the Central Bureau of Investigation (CBI) being RC 6(S)/94-SIU.VIII under Section 120B/420/468/471 of Indian Penal Code (IPC) read with Section 13(2) and 13 (1)(d) of the Prevention of Corruption Act, 1988. It was alleged in the FIR that during the period of 1990-1992, one Mr. Jagannath Sharma (since deceased), Managing Director of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam, manipulated the accounts of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. thereby amassing huge wealth. On completion of the investigation, a charge- sheet was laid against M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. and one Jagannath Sharma (since deceased) for offences under Section 120B/420/468 of (IPC). [4] In response to the summons issued by the learned Special Judicial Magistrate, Jagannath Sharma (since deceased), appeared before Criminal Petition No. 513 of 2015 Page 2 of 9 the Court and after complying with the necessary formalities charges were framed against Jagannath Sharma (since deceased) for commission of the offences under Section 120B/420/468 of (IPC) to which he pleaded not guilty and claimed trial. The trial proceeded and after examination of as many as 78 witnesses prosecution closed its evidence. Jagannath Sharma (since deceased), was then examined under Section 313 of CrPC. It may be pointed out that examination of Jagannath Sharma (since deceased), was recorded on the basis of questionnaire by way of affidavit as he could not attend Court due to certain terminal illness. Jagannath Sharma (since deceased), had prayed for adducing defence witnesses which was allowed. But even before he could adduce defence evidence he died.
[5] Thereafter, the CBI submitted a report on 28.04.2015 that after the death of Jagannath Sharma (since deceased), the day to day activities of petitioner No. 3 is looked after by the petitioner herein as Chairman and Sri Sone Kalita as Vice Chairman. Acting on the said report of the CBI, the learned trial Court issued summons to the petitioner No. 1 & 2 making them accused in the case. It is this order of the learned Special Judicial Magistrate, which has been challenged in the present proceedings.
[6] I have heard Mr. A.K. Bhuyan, learned Counsel for the petitioners. I have also heard Mr. S.C. Keyal, learned Standing Counsel, CBI.
Criminal Petition No. 513 of 2015 Page 3 of 9 [7] For better appreciation of the matter in hand the impugned order is reproduced below:-
"28.4.15 CBI is duly represented.
Seen the report submitted by the CBI regarding functioning of the Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. In the report the CBI had (sic) submitted that after expiry of the then representative of (sic) J.N. Sharma, currently, Sri Ram Narayan Sharma, Chairman is representing the firm, The name of Mr. Sone Kalita, Vice Chairman, is also mentioned in the report. Considering the same issue summon to the said two persons, namely, Mr. Ram Narayan Sharma & Mr. Sone Kalita, directing them to appear on the next date fixed.
Fixing 16/6/15 for appearance."
[8] It would be apparent from a reading of the impugned order, reproduced above, that the order does not reveal any reason as to the impleadment of the present petitioners as accused persons in the case.
[9] Coming to the records annexed with the petition, Annexure C is the copy of Charge-sheet which reveals that in the charge-sheet there were two accused persons, namely, M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam and Mr. Jagannath Sharma (since deceased), Managing Director of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam. [10] Annexure-D is the charge form which reveals that charge was framed only against Sri Jagannath Sharma (since deceased), M.D, B.V.R.H.W Coop. Society. There is nothing on record to show that Criminal Petition No. 513 of 2015 Page 4 of 9 charge was framed against M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam, the other charge-sheeted accused. On record, therefore, M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam is not an accused undergoing trial in the case since no charge has been framed against it. So being the case, keeping aside the issue of legal permissibility, the question of substitution of Jagannath Sharma (since deceased), Managing Director, by the newly substituted Chairman and Vice Chairman does not arise.
[11] This apart, Annexure C, the copy of charge-sheet, also reveals that there were personal accusations against the then Managing Director, Jagannath Sharma (since deceased). Hence, he was not charge- sheeted for the mere reason of his holding the post of Managing Director rather; he was charge-sheeted because there were evidence that he was involved in the manipulation of facts and figures and embezzlement of money. The impugned order does not reveal that there is/are personal allegations against the petitioners herein. Hence, they have been summoned as accused for the only reason that they are now holding the post of Chairman and Vice Chairman of M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd.
[12] The question is-assuming that M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd were an accused Criminal Petition No. 513 of 2015 Page 5 of 9 against whom charge was framed would it have been permissible for the Court to summon the petitioners as accused in the manner as reflected in the impugned order?
[13] It is a settled law, as on date, that a corporation can be prosecuted also for crimes requiring mens rea. In the case of Iridium India Telecom Ltd. v. Motorola Inc., reported in (2011) 1 SCC 74, the Hon'ble Supreme Court has held that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The Hon'ble Supreme Court further held that mens rea is attributed to corporations on the principle of "alter ego" of the company.
[14] It was further held in Iridium India (supra), that a company/corporation cannot escape liability for a criminal offence merely because the punishment prescribed is that of imprisonment and fine.
[15] Since M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. is a juristic person it can be prosecuted for Criminal Petition No. 513 of 2015 Page 6 of 9 offences requiring mens rea. Now, Section 63 of Cr.PC lays down the manner in which summons shall be served on corporation. It provides as follows:-
"Section 63. Service of summons on corporate bodies and societies.-- Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Explanation.--In this section, "corporation" means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860)."
[16] Once the summons is served upon a Corporate body the question would be who would represent the Corporation. In this regard Section 305 Cr.PC provides as follows:-
"305. Procedure when corporation or registered society is an accused.--(1) In this section, "corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).
(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.Criminal Petition No. 513 of 2015 Page 7 of 9
(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.
(4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply.
(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.
(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court."
[17] A conjoint reading of Section 63 and Section 305 of Cr.PC would show that after the process is served in the manner provided in Section 63 Cr.PC, the Corporation may appoint a representative for the purpose of the inquiry or trial as provided in Section 305(2) Cr.PC. It is, Criminal Petition No. 513 of 2015 Page 8 of 9 thus, evident that when the accused is a corporate body it is not for the Court to decide who shall represent the Corporate body. The Court can issue the process in the manner as provided under Section 63 Cr.PC and the representative will be appointed by the Corporate body for the purpose of representing the Corporate body during trial. [18] In the present case, even if it is assumed that M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam is an accused, it was not permissible for the Court to summon the petitioners as accused rather; the proper course would have been to issue notice to M/S Brahmaputra Valley Regional Handloom Weavers Co-operative Society Ltd. Ambari, Guwahati, Assam for appointment of a new representative on the death of Jagannath Sharma (since deceased).
[19] The procedure adopted by the learned Special Judicial Magistrate in summoning the petitioners as accused persons in the case, that too without assigning any cogent reasons, suffers from serious legal infirmity and hence calls for an interference as the impugned order, if allowed to stand, would amount to abuse of process of the Court. [20] The impugned order is, therefore, set aside and quashed.
JUDGE Nilakhi Criminal Petition No. 513 of 2015 Page 9 of 9