Dhirendra Agrawal vs State Of U.P. And Another on 8 February, 2017

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Allahabad High Court

Dhirendra Agrawal vs State Of U.P. And Another on 8 February, 2017

Bench: Vijay Lakshmi





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
 A.F.R.                                                 
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 41403 of 2014
 

 
Applicant :- Dhirendra Agrawal
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Avijit Bhushan,Arjun Singhal
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the entire proceedings of Criminal Case No.287 of 2012 arising out of Case Crime No.287/2012, including the charge sheet No.19/14 submitted on 23.2.2014, against the applicant under Sections 409,420,418,467,468 and 120-B of I.P.C. and Section 3/7 Essential Commodities Act. The legality of the order dated 03.3.2014, whereby cognizance has been taken on the said charge-sheet by learned First Additional Chief Judicial Magistrate, Saharanpur, is also under challenge in the instant application.

Affidavits have been exchanged between the parties.

Heard Sri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Ms. Saumya Chaturvedi and Mr.Prashant Vyas, on behalf of the applicant, learned A.G.A. representing the State and Sri. Ravindra Singh, learned counsel appearing for O.P. No.2-Secretary Cane Development Council.

Some background facts in brief are that the applicant, an ex-member of Parliament, is the owner and director of Daya Sugar Mills, a unit of Daya Engineering works (Sleeper Ltd.) situate at District-Saharanpur. On 15.11.2010, a tagging order was issued by the District Magistrate, Saharanpur (copy whereof has been filed as Annexure No.7 to the affidavit filed in support of this application) to ensure payment of dues to the Sugar cane farmers for crushing season 2010-11, whereby the occupier of sugar mill was required to pledge the entire sugar produced during the season with the bankers as a security of taking advance money from the bank. In the tagging order, it was directed that 85% of the advance money received from the bank was to be kept in a separate bank account which was to be used for payment of cane dues to the cane farmers and for payment of commission to the cane development societies. In the said tagging order, the bankers were also directed to ensure the deposit of money as per above direction and inform the Cane Development Council. The tagging order further provided that the violation of any such direction would be deemed to be an offence under Section 22 of U.P. Sugar Cane (Regulation of Supply and Purhcase) Act, 1953 (hereinafter referred to as the "U.P. Sugar Cane Act, 1953").

However, when the Sugar Mill failed to comply with the tagging order, a show cause notice vide letter dated 15.1.2011 was issued by the Collector, Saharanpur to the "occupier" of the mill to explain within a week that why prosecution be not initiated for deliberate violation of the tagging order. Prior to issuance of show cause notice, several meetings had been called by the District Cane Officer, Saharanpur during the crushing season for resolving the issues, but no one even attended the meetings on behalf of the Sugar Mill. When despite continuous efforts, the sugar factory failed to execute the tagging order, a recovery certificate was issued by the Cane Commissioner on 20.4.2011 for recovery of Rs.725.24 lacs towards outstanding cane price, society commission with interest @ 15% per annum.

Prior to issuance of the recovery certificate, applicant sugar mill had preferred a writ petition before the Lucknow bench of this Court and the same was disposed off by this court vide order dated 02.5.2011 which is quoted below:

"Heard the learned counsel for the petitioner Sri Rajesh Tewari, Sri K.S. Pawar for the opposite parties nos. 3 and 4 and the learned State Counsel.

At the outset, learned counsel for the petitioner on the basis of instructions, stated that the petitioner is not disputing the liability of the amount which is under demand but he seek some time for making the deposit.

Learned counsel for the respondents say that they do not have any objection, if reasonable time is granted to the petitioner and the petitioner assures that the entire amount including the interest etc. will be deposited within the time provided by the Court.The petitioners agree to do so.

We, under the circumstances, dispose of the writ petition finally with a direction that the petitioner shall deposit the entire amount as asked for by 15th of June, 2011.In the meantime petitioner's representation be considered and disposed of by the Central Government but the direction aforesaid would not in any way mean that the petitioner would not make the payment, as directed above.

The petition is disposed of accordingly.

Order Date:-2.5.2011"

After issuance of the recovrery certificate, another writ petition was preferred by the petitioner sugar mill, and the same was dismissed on 17.06.2011, the order is quoted as under;

"We are informed that the petitioner had already filed a writ petition, bearing no.4053 (MB) of 2011 for the same subject matter, which has been disposed of by this Court, by means of order dated 2.5.2011.

Thus, the second writ petition being successive is not maintainable and the same is hereby dismissed.

Order Date:-17.6.2011"

Against the dismissal of the writ petition, petitioner sugar mill preferred the special leave petition before the Hon'ble Supreme Court and the same was disposed off with a direction to the appellant to deposit the balance amount on or before 21st July 2011, with a stipulation that no further extention shall be granted. The order dated 30.6.2011 passed by the Hon'ble Supreme Court is reproduced hereunder;

Mr. Ravi. P Mehrotra, learned counsel appears for the State. Considering the grievance expressed by the petitioner, the petitioner is permitted to deposit the balance amount with the cane commissioner on or before 21st July, 2011. Till such time, no coercive steps shall be taken. It is made clear that no further extension shall be granted.

The special leave petition is disposed of accordingly."

However, despite the order of this Court and also of Apex Court, no payment was made by the Sugar Mill. Meanwhile, the District Cane Officer wrote a reminder to Branch Manager, Indian Overseas Bank stating that despite taking mortgage of the entire sugar produced in the crushing season 2010-2011, the bank has not transferred the 85% amount in the cane accounts although the cane account runs under the bank's supervision. Thus a payment of Rs.356.74 lacs has been obstructed for which the officers of Indian Overseas Bank are prima-facie responsible and will face the criminal prosecution for violation of the tagging orders. The information regarding availability of sugar stock pledged with the bank, was also sought from Bank officials. However, when the stock was verified in presence of consortium of banks and Chartered Accountant, 15,000/- sugar bags each weighing of one quintal were found missing from the warehouse. Thereafter, an F.I.R. was lodged by Secretary, Cane Development Council, Saharanpur against the applicant and three others including the Bank Manager with allegations that the applicant in collusion with other accused has missappropriated and embezzled the loan amount which was meant to be paid to the cane growers.

In the F.I.R., it was also alleged that not only tagging order issued by the District Magistrate was openly and deliberately flouted but a large amount of sugar stock i.e. about 15000 bags (each of one quintal), were clandestinely removed by the sugar mill owner/Director and Occupier in collusion with the bankers, in whose possession were the keys of the godowns where the sugar bags were kept.

After lodging of the F.I.R., a case was registered against the applicant and 3 others, including two directors of Sugar Mill and the Senior Bank Manager of Indian Overseas Bank at Crime No.287/12 under Sections 406,409,419,420,120-B I.P.C. and 3/7 E.C. Act. However, the police after investigation, submitted charge-sheet only against the present applicant, that too only under Section 3/7 E.C. Act. The learned Magistrate, at the time of remand, found that there was sufficient prima-facie evidence against the applicant to show that offences under Sections 409, 418, 420 and 120-B were also made out against him. Accordingly, the learned Magistrate remanded the applicant to custody under the aforesaid sections also and vide order dated 03.3.2014, took cognizance under Sections 409,418,420,120-B,467,468 I.P.C. and 3/7 Essential Commodities Act.

Sri Gopal Swaroop Chaturvedi, learned Senior Counsel appearing for the applicant has assailed the legality of the charge-sheet, the cognizance order dated 03.3.2014 and the entire criminal proceedings of the case, mainly on the following grounds:

1. Violation of tagging order is not punishable under the Indian Penal Code. A specific Act i.e. U.P.Sugar Cane Act, 1953 has been enacted for regulating supply and purchase of sugar cane and all proceedings can only be initiated under the provisions of the same Act and any violation of the provisions of U.P. Sugar Cane Act 1953, will only entail penalties as provided under the said Act. As per the clear provisions of the Act, a Director of a Sugar mill can not be prosecuted for the offence relating to sugar supply and purchase, due to the reason that a specific legal entity in the form of an 'Occupier' has been carved out by the Act itself who owes responsiblity for operations of the sugar factory. The applicant had joined Daya Sugar Mill, as non-executing director on 22.1.2011 and merely 3 months after his joining, recovery certificate was issued against him in respect of arrears of cane dues for the period when the applicant was neither a director nor an occupier. Therefore, the applicant was not responsible for day to day functioning and operations of the sugar mill, which is the responsibility of a designated "occupier" as contemplated under section 2(k) of the U.P. Sugar Cane Act, 1953 and the authorities ought to have proceeded against the 'Occupier' for violation of the Act.

2. Section 10 of the Essential Commodities Act, 1955 provides for offence by the companies according to which 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. However, the company i.e. Daya Sugar Mill has not been made an accused in the present case. Hence, the entire proceedings are liable to be quashed in view of the law laid down by Honb'e Apex Court in the case of Aneeta Hada Vs. M/s. Godfather Travels & Tours Pvt. Ltd. [2012] 3 SCC (Cri) 241, in which the Apex Court has held that for maintaining the prosecution under Section 41 of the Negotiable Instruments Act, against an authorised signatory of a company, arraigning of a company as an accused is imperative. Therefore, the prosecution of the applicant without the Company being arrayed as a party is illegal and is liable to be quashed in view of the aforesaid judgment.

3. No offence under Section 409 I.P.C. is made out against the applicant because there is no evidence of any "entrustment" of a property to the applicant, which is the most essential ingredient of offence of criminal breach of trust. The submission of the learned Senior Counsel is that the farmers do not entrust the sugarcane to the owner or Director of a Sugar Mill. To the contrary, sugarcane is sold to the company by the farmers and on such purchase, the Company becomes its owner and not an entrustee. Therefore, only for the reason that the price of the sugarcane was not paid to the farmers, it cannot be said that any criminal breach of trust was committed by the applicant. Thus, the essential ingredients of criminal breach of trust being missing, no offence under Section 409 I.P.C. is made out against the applicant.

4. The offence under Sections 418 and 420 I.P.C. are also not made out against the applicant, the essential ingredients of "cheating" being missing in this case. It is contended that there is no iota of evidence in this case to show that the applicant has, ever, fradulently or dishonestly induced the farmers to deliver the sugarcane to him, whereas as per the definiton of cheating, to constitute the offence, it is necessary that the accused by deceiving any person fradulently or dishonestly, induces him to deliver any property.

5.In the F.I.R. four persons were made accused, but the police, with some ulterior motive, exonerated three of them and implicated only the applicant. The applicant being the Ex-member of Parliament, Lok Sabha for 3 terms and was going to contest the election, the entire action was taken only against the applicant due to undue political pressure. In view of the fact that there is no evidence of conspirary, Section 120-B of I.P.C. is also not made out against the applicant.

6.There is no evidence that any document was ever forged by the applicant. There is even no such allegation against the applicant that he, dishonestly manufactured, executed or transmitted any valuable security without authority or used any false document or electronic record with intention to commit fraud. Hence, the essential ingredients of "forgery" being missing in this case, no offence under Sections 467 and 468 of the I.P.C. are made out against the applicant.

7.After the order pased by Hon'ble Apex Court in SLP No.16553 of 2011, the applicant in confirmation with all the other directors tried to sell the sugar mills on several occasions and he was sincerely trying to find out the purchasers so that the amount asked by the Cane Commissioner, at least be paid with protest, to end the controversy and in an effort for the same, the applicant also made payments through RTGS for an amount of Rs.3 crores. Learned counsel has submitted that the applicant was undertaking efforts to make the balance payments despite the fact that the mill was sealed by the district administration in the year 2011 itself and the applicant was struggling hard to arrange the funds, when the police arrested him.

On the basis of the aforesaid grounds, it has been prayed that the entire proceedings of this case may be quashed.

Per contra, learned A.G.A. and Sri. Ravindra Singh, learned counsel representing the Cane Development Council, U.P./O.P. No.2, have vehemently opposed the application on the following grounds:

1. That the applicant is not mearly a Director of Daya Sugar Mills, but he is the owner of it, which itself is evident from the name of the company "Daya Sugar Mills", based on the name of the applicant, whose full name is Dhirendra Daya Agarwal, as is clearly evident from a perusal of annexure No.1 (Form 32) filed by the applicant himself. Moreso, the applicant has nowhere disputed this fact that he is the owner of Sugar Mill.

2.The applicant after his arrest, had moved a bail application before this court and during the hearing of bail application, he had assured the court that he will deposit the entire amount which was at that time Rs.Nine Crores Eighteen Lakhs and Twenty Four Thousand with interest as directed by this Court earlier, within 30 days. While drawing the attention of this Court towards paragraph nos. 55 and 56 of the bail application, wherein applicant has shown his willingness and readiness to pay the sugar cane dues and has also given some options for such payment, learned counsel for informant has submitted that this fact itself demonstrates that the applicant is the ultimate authority having overall control on the Sugar Mill, otherwise he would not have given assurance for payment of sugar cane dues. The assurance to pay such huge amount can be given only by a person who is in control over the sugar mill or who is the owner of it. It is contended that the applicant being the owner and Managing Director of the Daya Sugar Mills, having ultimate control on the affairs of sugar mill, was liable to pay the aforesaid cane dues to the cane growers and the concerned cane co-operative societies, but he did not pay the aforesaid amount despite the order passed by this Court. Hence, he is liable for criminal prosecution.

3. The Explanation attached to the definition of "Occupier" as provided under section 2(k) of the Act of 1953 starts with a non-obstante clause and includes the owner of a factory in the definition of "Occupier".

4. It is next contended that the applicant being the owner of Mill and also a member of Parliament, has made several attempts to scuttle the criminal proceedings initiated against him. The case diary reveals that the aplicant, instead of cooperating with the authorities, had absconded and he had been successful in avoiding the proceedings initiated against him for several years. The record reveals that various places including Kolkatta, Patna, Gaya, Ranchi, Hunterganj and New Delhi were searched and raided. The news was flashed by print media as well as visual media. Pamphlets were published and distributed and even "look out" notice was also issued, but the applicant did not surrender before the court. The Additional Chief Judicial Magistrate issued Non-bailable warrant and process under section 82 Cr.P.C. but applicant failed to honour the orders of the court. It is not his case that the applicant was not aware of proceedings against him. He invoked jurisdiction of this Court at every step and challenged every order passed by the courts but when no relief was granted to him he absconded.

5. The applicant is also facing two cases of similar category registered against him as Case crime no. 207/2010, under sections 405, 418,420, 120-B IPC and section 5/8/12 of Sheera Sammati Adhiniyam and Case crime no. 141/2011 under section 405, 418, 420, 120 B IPC and section 5/8/12 of Sheera Sammati Adhiniyam.

6.The F.I.R. in this case had been challenged by the applicant by means of writ petition no.10987 of 2013 before this court. At that time, the balance of cane dues arrears along with interest was Rs. Nine crore eighteen lacs twenty four thousand. Considering the facts and circumstances, this court, vide order dated 31.5.2013 disposed it of that in case the petitioner deposits the aforesaid amount within 30 days alongwith bank advices, he shall not be arrested till submission of police report. The amount was not denied by the petitioner before this court and the same wsas not challnged by the applicant before the Hon'ble Apex Court.

7.The applicant had moved a bail application before this court which was rejected by a detailed order dated 06.5.2014 by this Court. 8. The applicant had preferred the Special Leave to Appeal (crl) No(s) 6591/2014 against the aforesaid order dated 06.05.2014 passed by this Court, rejecting the bail application, in which he had taken almost the same pleas as taken in the instant application. However after some arguments, the Appeal was withdrawn by him and it was dismissed as withdrawn without granting any liberty to approach this Court by means of the instant application. (The copy of the aforesaid order dated 01.9.2014, passed by Apex Court has been filed by the applicant as Annexure No.20.) In view of the above, the instant application is not maintainable as no permission has been granted by the Apex Court while permitting the applicant to withdraw the aforesaid special leave petition vide judgment and order dated 01.09.2014.

Considred the rival submissions advanced by the parties.

From the perusal of the impugned orders and record it appears that all the disputes involved in the present case are factual in nature and as per the well settled legal position, the minute intricacies in respect of factual disputes cannot be looked into by this court in the proceedings under Section 482 Cr.P.C. Whether the applicant had already deposited some part of amount due on him or not; what was the exact amount due to be paid by him, whether he had any role in embezzlement of 15,000 quintals of sugar or not, what were the actual terms of contract between the applicant and the Banks, all these are disputed questions of fact which cannot be considered by this Court in proceedings under section 482 Cr.P.C. The Hon'ble Apex Court in a catena of judgments and recently in the case of A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348, has reiterated the law that the High Court being the superior court of the State, should refrain from analysing the materials which are yet to be adduced and seen in their true perspective by the trial court. The inherent jurisdiction of the High Court should not be exercised to stifle a legitimate prosecution.

In the case of Radhey Shyam Khemka Vs. State of Bihar (1993) 3 SCC, 54, the Apex Court has held as under:

"The High Court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial court. The power under section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed."

In view of the above, even no opinion can be expressed at this stage by this Court regarding the factual controversies involved in this case.

Learned counsel for the applicant has vehemently argued that the controversy involved in this case is not confined only to factual disputes but an important legal issue is also involved in this case, on the basis of which the entire proceedings are liable to be quashed. It has been contended that in all the cases involving offences by Companies, Company is the principal offender and the directors working under it are vicariously liable for the acts of Company. Therefore, Company is a necessary party, in all such cases. However, in the present case, the Company has not been made an accused. Hence, the company being not impleaded as an accused in this case, the applicant cannot be held vicariously liable. In this regard, learned counsel for the applicant has placed reliance on Aneeta Hada's case (supra).

I have carefully gone through the judgment rendered by Hon'ble Apex Court in Aneeta Hada's case and in my considered view, the law laid down by the Hon'ble Apex Court in Aneeta Hada's case (supra), is not applicable to the present case, because the facts of the case in hand are entirely different from the facts of Aneeta Hada's case.

In Aneeta Hada's case (supra), the appellant, Anita Hada, an authorised signatory of International Travels Limited, a company registered under the Companies Act, 1956, had issued a cheque dated 17th January, 2011 for a sum of Rs.5,10,000/- in favour of the respondent, namely, M/s. Godfather Travels & Tours Private Limited, which was dishonoured as a consequence of which the said respondent initiated criminal action by filing a complaint before the concerned Judicial Magistrate under Section 138 of the Negotiable Instruments Act. In the complaint petition, the Company was not arrayed as an accused. However, the Magistrate took cognizance of the offence against Aneeta Hada the appellant.

Being aggrieved by the said order, she invoked the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing of the criminal proceeding and the High Court, considering the scope of Sections 138 and 139 of the N.I. Act and various other factors, opined that the ground urged would be in the sphere of defence of the accused/applicant and would not strengthen the edifice for quashing of the proceeding. While assailing the said order before the two-Judge Bench, the substratum of argument was that, as the Company was not arrayed as an accused, the legal fiction created by the legislature in Section 141 of the Act would not get attracted. It was canvassed that once a legal fiction is created by the statutory provision against the Company as well as the person responsible for the acts of the Company, the conditions precedent engrafted under such deeming provisions are to be totally satisfied and one such condition is impleadment of the principal offender.

The Hon'ble Apex Court in the foresaid circumstances, observed as under:-

"The Company, although a juristic person, is a separate entity. Directors may come and go. The company remains. It has its own reputation and standing in the market which is required to be maintained. Nobody, without any authority of law, can sentence it or find it guilty of commission of offence. Before recording a finding that it is guilty of commission of a serious offence, it may be heard. The Director who was in charge of the company at one point of time may have no interest in the company. He may not even defend the company. He need not even continue to be its Director. He may have his own score to settle in view of change in management of the company. In a situation of that nature, the company would for all intent and purport would stand convicted, although, it was not an accused and, thus, had no opportunity to defend itself. Any person accused of commission of an offence, whether natural or juristic, has some rights. If it is to be found guilty of commission of an offence on the basis whereof its Directors are held liable, the procedures laid down in the Code of Criminal Procedure must be followed. ................

The Act is a penal statute. Unlike offences under the general law it provides for reverse burden. The onus of proof shifts to the accused if some foundational facts are established. It is, therefore, in interpreting a statute of this nature difficult to conceive that it would be legally permissible to hold a company, the prime offender, liable for commission of an offence although it does not get an opportunity to defend itself. It is against all principles of fairness and justice. It is opposed to the Rule of Law."

In Aneeta Hada's case, Aneeta Hada was merely a director/authorized signatory of the company and not the owner as in the present case. Hence, the Apex Court observed that without giving opportunity to the Company to defend itself in other words without impleading the Company, it cannot be made liable for the acts of its directors. Moreso, Aneeta Hada's case (supra) was a case under the Negotiable Instruments Act, relating to dishonour of cheque. The dispute was a private dispute between the parties, whereas in the present case, the dispute is not a private dispute, but relates to payment of sugarcane price to thousands of cane growers, affecting a large portion of the society.

The Hon'ble Apex Court time and again has expressed its displeasure and unhappiness in several cases relating to non-payment of sugarcane price to the poor cane growers. In Civil Appeal No.7508/2005, West U.P. Sugar Mills Association & Ors. Vs. State of U.P. & Ors., (2012) 2 SCC 773 and connected appeals/special leave petitions, the Hon'ble Supreme Court, by vacating all the interim orders passed by itself or any Court vide order dated 17.1.2012 has issued a general direction to all the sugar factories to ensure the payment of cane dues at the rate of SAP. The relevant portion of judgement dated 17.1.2012 is quoted hereunder:-

"In all those cases where the sugar factories and other buyers have not paid the balance outstanding principal amount to the cane growers or to the cooperative societies because of the stay orders obtained by them from this Court or from the High Court, they are now directed to pay the balance outstanding principal amount according to the SAP as fixed by the State Government from time to time. All the stay orders granted by this court or by the High Court are modified/vacated in the aforesaid terms. Let the balance outstanding principal amount be paid by the sugar factories within three months from the date of this judgment.

In case the balance outstanding principal amount, as directed by this Court, it not paid within three months from the date of this judgment then the sugar factories/buyers would be liable to pay interest at the rate of 18% per annum on the delayed payment to the cane growers or to the cooperative societies, as the case may be......."

Non-payment of sugarcane dues to the poor farmers is a matter of grave concern and is entirely distinguishable from the bouncing of a cheque amount, issued by some authorised signatory of the Company to a private party. In the present case, the defaulter is not merely an authorised signatory, but undisputedly he himself is the owner of the mill, who has admitted his liability by assuring this Court and even the Supreme Court to repay the amount.

The definition of "Occupier" provided under Section 2 (K) of U.P. Sugarcane Act, 1953 is quoted below:

"[2(k) 'Occupier' in relation to a factory or a gur, rab or khandsari Sugar Manufacturing Unit, means the person (including a company, firm or other association of individuals) who, or the authority which, owns or has the ultimate control over the affairs of such factory or unit and where the said affairs are entrusted to a Managing Agent or a Director or other officer of such person or authority, includes such Managing Agent, Director or other officer:

Explanation.-Notwithstanding that the affairs of a factory or unit are entrusted to a Managing Agent or a Director or other officer, the liability under Section 17 of the person, who or the authority which, owns or has the ultimate control over the affairs of the factory or unit shall remain unaffected;] The applicant being the owner, having ultimate control over the affiairs of factory, cannot be absolved from liability only on a technical ground that sugarcane mill/company has not been impleaded as an accused. Quashing of the entire proceedings of the criminal case in this case would mean to provide further opportunity to the applicant to avoid payment of sugarcane dues for several years. The record shows that the applicant is a chronic defaulter and he has already successfuly avoided the payment of huge amount of sugarcane dues to the poor farmers for several years, by absconding to various places despite the orders of this court and also of the Hon'ble Apex Court. Therefore, to quash the entire proceedings in this case only for such technical reason would certainly amount to failure of justice. Moreso, the technical flaw in the complaint/F.I.R. that had occurred perhaps due to carelessness or ignorance of the first informant, can be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the parties and to make formal amendments so as to implead the sugar mill/company also.

Recently, in Criminal Appeal Nos.271 of 2016, Standard Chartered Bank Vs. Sate of Maharashtra & Ors, the Supreme Court has gone extensively into various judgments pertaining to vicarious liability and has held that when there is specific averments in the complaint as to the role of every person in the commission of the offence, the process cannot be quashed.

"Sugarcane" is an essential commodity as defined in Section 2(b) of the Essential Commodities Act, 1955. In the leading decision Tika Ramji v. State of Uttar Pradesh & Ors., (1956) 1 SCR 393 : AIR 1956 SC 676, Apex Court has held that the Essential Commodities Act included within the definition of "essential commodity" "food-crops" which would include sugarcane. Again, in A.K. Jain v. Union of India & Ors. (1970) 1 SCR 673 : AIR 1970 SC 267, following Tika Ramji, Apex Court held that Section 2 of the Essential Commodities Act provided that sugarcane would be an "essential commodity" within the meaning of the Act and hence cultivation and sale of sugarcane could be regulated by law. The object of enactment was stated in its bill as follows:

"The bill is being introduced in order to provide for a rational distribution of sugarcane to factories, for its development on organised scientific lines, to protect the interest of cane-growers and of the industry." It is a social welfare law and the purpose of the Act will be frustrated if the Sugar Mill owners will be allowed to play with the law on such technical grounds that the Company has not been named as an accused in the F.I.R.

It is also to be kept in mind that as per the settled legal position, the F.I.R. is not an encyclopaedia and it is not necessary to name each and every person in the F.I.R. Sometimes, F.I.R. is lodged against unkown persons and not even a single person is named in it. In such cases, where, after investigation, the charge-sheet is filed only against some of the accused persons, the court has ample power to summon anyone as an additional accused at appropriate stages, i.e. when the court takes cognizance and at any stage in course of inquiry or after commencement of trial under Section 319 Cr.P.C. If the court in the present case, finds it necessary, it is open for it to direct the prosecution to implead the company as an accused or it suo motu may summon the Company under Section 319 Cr.P.C. as an additional accused. In view of the above, the F.I.R. or the entire consequent proceedings, cannot be quashed only on the ground of failure of first informant to mention the name of Company as an accused in the F.I.R.

The impugned order dated 03.3.2014, whereby cognizance has been taken, in this case, can also not be quashed in view of the recent pronouncement of Hon'ble Apex Court. A three judges' bench of the Hon'ble Apex Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609 has held as under:

"Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.

Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code."

For the aforesaid reasons, there does not appear any good ground to quash the entire proceedings of this case.

The instant application under Section 482 is accordingly rejected.

Order Date :- 08-2-2017 SB A.F.R. Court No. - 53 Case :- APPLICATION U/S 482 No. - 41403 of 2014 Applicant :- Dhirendra Agrawal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Avijit Bhushan,Arjun Singhal Counsel for Opposite Party :- Govt. Advocate Hon'ble Mrs. Vijay Lakshmi,J.