Karnataka High Court
K. Madhusudan S/O K Krishnaiah vs The State Of Karnataka on 23 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.101295/2019
C/W.
CRIMINAL PETITION NO.101763/2019
CRIMINAL PETITION NO.102306/2019
CRIMINAL PETITION NO.102415/2019
IN CRL.P.NO.101295/2019
BETWEEN:
K. MADHUSUDAN S/O K KRISHNAIAH
AGED: 54 YEARS,
R/O: G-12, RAJEEV NAGAR,
HOSAPETE-583203, DIST: BALLARI,
KARNATAKA.
...PETITIONER
(BY SHRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE.)
AND:
STATE OF KARNATAKA
THROUGH DEPUTY RANGE FOREST OFFICER,
REGINAL FOREST ZONE,
HOSAPETE,
REP. BY ITS STATE PUBLICE PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
FIR NO.11/2012-13(330890) DATED 19.11.2012, SUBSEQUENT
CHARGE SHEET NO.8/2016-17 DATED 12.04.2017 AND THE ENTIRE
PROCEEDINGS IN C.C.NO.888/2017, REGISTERED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 24(A), (D), (F), (G), (GG),
(H), 80, 82, 82(B) & 109 OF THE KARNATAKA FOREST ACT READ
WITH SECTION 144 AND 165 & SEC. 4(1), 4(1)(A) AND 21 OF MMDR
ACT, PENDING ON THE FILE FO THE PRL. CIVIL JUDGE & JMFC
COURT, HOSAPETE INCLUDING FIR, INSOFAR AS IT RELATES TO THE
PETITIONER, ETC.,.
IN CRL.P.NO.101763/2019
BETWEEN:
SMT.RASHMI SHRENIK KUMAR
W/O SHRI.SHRENIK KUMAR BALDOTA,
AGED ABOUT: 43 YEARS,
R/O: "CHINAR",
BALDOTA COLONY, DAM ROAD
HOSAPETE-583201, DIST: BALLARI,
KARNATAKA.
...PETITIONER
(BY SHRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE.)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS
DEPUTY RANGE FOREST OFFICER,
REGIONAL FOREST ZONE,
HOSAPETE.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
FIR NO.11/2012-13 DATED 19.11.2012 LODGED AGAINST THIS
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
24(A), (D), (F), (G), (GG), (H), 80, 82, 82(B) AND 109 OF
KARNATAKA FOREST ACT READ WITH RULES 144 & 165, VIDE
ANNEXURE-A, SUBSEQUENT CHARGE SHEET NO.08/2016-17 DATED
12.04.2017 VIDE ANNEXURE-A1 AND THE FURTHER PROCEEDINGS
PURSUANT TO IMPUGNED ORDER DATED 16.10.2018 PASSED BY THE
PRL. CIVIL JUDGE & JMFC COURT, HOSAPETE, IN C.C.NO.888/2017
INCLUDING FIR, INSOFAR AS IT RELATES TO THE PETITIONER, ETC.,.
IN CRL.P.NO.102306/2019
BETWEEN:
SHRI MEDA VENKATAIAH S/O LATE OBAYYA
AGED ABOUT: 73 YEARS,
R/O: 2ND CROSS, M.J. NAGAR,
HOSAPETE-583201, DIST: BALLARI,
KARNATAKA.
...PETITIONER.
(BY SHRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE.)
AND:
STATE OF KARNATAKA
THROUGH DEPUTY RANGE FOREST OFFICER,
REGIONAL FOREST ZONE, HOSAPETE.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
4
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
FIR NO.11/2012-13 DATED 19.11.2012, LODGED AGAINST THE
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
24(A), (D), (F), (G), (GG), (H), 80, 82, 82(B) AND 109 OF THE
KARNATAKA FOREST ACT READ WITH RULES 144 AND 165, VIDE
ANNEXURE-A, SUBSEQUENT CHARGE SHEET NO.08/2016-17 DATED
12.04.2017 VIDE ANNEXURE A1 AND FURTHER PROCEEDINGS
PURSUANT TO THE IMPUGNED ORDER DATED 16.10.2018 IN
C.C.NO.888/2017 PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT,
HOSAPETE INCLUDING FIR INSOFAR AS IT RELATES TO THE
PETITIONER HEREIN, ETC.,.
IN CRL.P.NO.102415/2019
BETWEEN:
1. NARENDRAKUMAR A BALDOTA
S/O LATE ABHERAJ H BALDOTA
AGE: 73 YEARS, OCC: DIRECTOR,
R/O: CHINNAR, BALDOTA COLONY,
HOSAPETE-583201, DIST: BALLARI
KARNATAKA.
2. RAHUL KUMAR
S/O SHRI.NARENDRAKUMAR A BALDOTA,
AGE: 73 YEARS, OCC: DIRECTOR,
R/O: CHINNAR, BALDOTA COLONY,
HOSAPETE-583201, DIST: BALLARI,
KARNATAKA.
3. SHRENIK KUMAR
S/O SHRI.NARENDRAKUMAR A BALDOTA,
AGE: 73 YEARS, OCC: DIRECTOR,
R/O: CHINNAR, BALDOTA COLONY,
HOSAPETE-583201, DIST: BALLARI,
KARNATAKA.
4. MADHAVA RAVINDRA
OCC: DIRECTOR,
R/O:FLAT NO.1-B,
5
PGP MANOR,
NO.29, BARNABY ROAD, KILPAUK,
CHENNAI-600010, TAMIL NADU.
5. RAMAKRISHNA HEMAPPA SAWKAR
OCC: DIRECTOR,
R/O: 292, 5TH BLOCK, 38TH CROSS,
JAYANAGAR, BENGALURU-560041
KARNATAKA
...PETITIONERS.
(BY SHRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE.)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS
DEPUTY RANGE FOREST OFFICER,
REGINOAL FOREST ZONE,
HOSAPETE.
REP. BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
FIR NO.11/2012-13 DATED 19.11.2012, LODGED AGAINST THE
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
24(A), (D), (F), (G), (GG), (H), 80, 82, 82(B) AND 109 OF THE
KARNATAKA FOREST ACT READ WITH RULES 144 AND 165 VIDE
ANNEXURE-A, SUBSEQUENT CHARGE SHEET NO.08/2016-17 DATED
12.04.2017 VIDE ANNEXURE A1 AND FURTHER PROCEEDINGS
PURSUANT TO THE IMPUGNED ORDER DATED 16.10.2018 IN
C.C.NO.888/2017 PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT,
HOSAPETE, INCLUDING FIR INSOFAR AS IT RELATES TO THE
PETITIONER HEREIN, ETC.,.
6
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 7.2.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioners in all these petitions are before this Court calling in question proceedings in C.C.No.888 of 2017 pending before the Principal Civil Judge (Junior Division) and JMFC, Hosapete for offences punishable under Sections 24(a), (d), (f),
(g), (gg), (h), 80, 82, 82(B) and 109 of the Karnataka Forest Act r/w Rules 144 and 165 of the Karnataka Forest Rules, 1969 and Sections 4(1), 4(1A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1958.
2. The petitioners in these petitions are all different accused in a common Criminal Case No.888 of 2017 registered for offences punishable under the afore-quoted sections and therefore the petitions are taken up together and disposed of by this common order.
3. Brief facts leading to the filing of the present petitions, as borne out from the pleadings, are as follows: 7
The petitioners are all employees of MSPL Limited ('the Company' for short), a company registered under the Companies Act having its operations PAN India. The company deals with iron ore and is in possession of a valid licence to operate the same in accordance with law from 14-11-2002 to 13-11-2022. The Deputy Director, Department of Mines and Geology, Hospet conducts a survey, demarcates the area and identifies the lease boundary in terms of his report dated 18-07- 2003. Since then it is the claim of the Company that it is working within the boundary identified by the Deputy Director of Mines and Geology. The lease deed and the survey sketch along with the sketch of the area of operation are also appended to the petition. The issue with regard to the boundaries, working of mining companies and grant of mining leases was before this Court and ultimately before the Apex Court which had appointed a Central Empowered Committee ('CEC' for short) to give a factual report with regard to mining activities at Hospet.
4. The Apex Court on the basis of CEC report which was based upon the survey report, classified mining leases into three categories - Categories A, B & C. Companies which had 8 not encroached any part were categorized as Category-'A' and companies which had encroached less than 10% of the forest land were categorized as Category-'B' and others who had encroached more than 10% were categorized as Category-'C'. This categorization was by the CEC. The Apex Court accepted the said categorization and directed that companies should be permitted to operate only after certain conditions fulfilled as obtaining in the CEC report. In terms of the CEC report and the sketch, the Company was categorized as Category-'B' which would mean that the violation is less than 10% for which normal fine was directed to be imposed by the CEC. Accordingly, the Apex Court passed a final order accepting the report of the CEC which reads as follows:
"47. We make it clear that we have not understood the above statement as an admission on the part of the Federation and it is on a consideration of the totality of the facts placed before us that we accept the findings of the survey conducted by the Joint Team constituted by the orders of this Court and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All 9 proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by anybody or authority"
(Emphasis added)
5. In terms of the order passed by the Apex Court following the recommendation of the CEC penalty was imposed upon the company and the area was demarcated as per the sketch prepared by the CEC. This came into effect from 18.04.2013. The recommendations insofar as Category-'B' is concerned by the CEC read as follows:
"30......(V) In respect of the mining leases falling in "CATEGORY-B" (details given at Annexure- R10 to this Report) it is recommended that:
i) the R&R plan under preparation by the ICFRE, after incorporating the appropriate changes as per the directions of this Hon'ble Court, should be implemented in a time bound manner by the respective lessees at his cost. In the event of his failure to do so or if the quality and/or the progress of the implementation of the R&R Plan is found to be unsatisfactory by the monitoring Committee or by the designated officer(s) of the State of Karnataka, the same should be implemented by the State of Karnataka through appropriate agency (ies) and at the cost of lessee;10
ii) for carrying out the illegal mining outside the lease area, exemplary compensation/penalty may be imposed on the lessee. It is recommended that;
(a) For illegal mining by way of mining pits outside the leases area, as found by the Joint Team, the compensation/penalty may be imposed at the rate of Rs.5.00 crore (Rs.Five Crore only) for per ha. Of the area found by the Joint Team to be under illegal mining pit; and
(b) For illegal mining by way of over burden dump(s) road, office, etc. outside the sanctioned lease area, the compensation/penalty may be imposed @ Rs.1.00 crore (Rs. One Crore only) for per ha.
Of the area found to be under illegal over burden dump etc.
(iii) Mining operation may be allowed to be undertaken after (a) the implementation of the R&R Plan is physically undertaken and is found to be satisfactory based on the predetermined parameters (b) penalty/compensation as decided by this Hon'ble Court is deposited and
(c) the conditions as applicable in respect of "Category-A" leases are fulfilled/followed.........."
6. The mining activities which had been stopped pursuant to an interim order of the Apex Court dated 29-07- 2011 was resumed only after 16-05-2013 and in between there were no mining activities. The boundaries were fixed as per the directions of the Apex Court in the afore-extracted order but while categorizing the company a penalty of Rs.19.84 crores 11 was directed to be deposited and pursuant to the said deposit, operations were resumed with necessary permissions.
7. During the pendency of the aforesaid proceedings before the Apex Court, an FIR had been registered against the petitioners on 19-11-1992 alleging that the Company had committed offences under the Karnataka Forest Act, 1963 and the lease holder, the company had violated the lease boundaries. The further violation that was indicated was that it is contrary to the ECE approved report of the Apex Court. Pursuant to the FIR being registered and investigation ordered after about 5 years a final report is filed on 12-04-2017 in No.8 of 2016-17 which is now numbered as CC 888 of 2017 for the aforesaid offences. It is at that juncture the petitioners have knocked the doors of this Court in the subject petitions. This Court having entertained these petitions granted an interim order on 8-11-2019 and the same is in operation as on date.
8. Heard Shri Shivaprasad Shantanagoudar, the learned counsel appearing for the petitioner and Shri Ramesh Chigari, the learned HCGP appearing for the respondent State. 12
9. The learned counsel appearing for the petitioners in all these cases would vehemently argue and contend that the petitioners who are either office bearers or Directors of the Company have been brought under the ambit of these criminal proceedings without at the outset making the Company a party and in terms of Section 82B the Company ought to have been made a party to these proceedings, without which the complaint or the proceeding itself is not maintainable. He would further submit that while filing the charge sheet the Government itself was of the opinion that there is no violation made by the Company and it was in tune with the survey and demarcation sketch and it is only after the report of the CEC, the charge sheet is now filed alleging that there has been violation. He would submit that under the old FIR the allegation was different; the charge sheet filed after investigation is now again different from what it was filed. He would place reliance upon the following judgments viz., SUNIL BHARTI MITTAL v. CENTRAL BUREAU OF INVESTIGATION - (2015) 4 SCC 609; SHIV KUMAR JATIA v. STATE OF NCT OF DELHI - (2019) 17 SCC 193 and RAVINDRANATHA BAJPE v. MANGALORE 13 SPECIAL ECONOMIC ZONE LIMITED - (2021) SCC OnLine SC 806.
9.1. On the other hand, the learned High Court Government Pleader would vehemently refute and contend that the prosecution had to be initiated against the petitioners as the Apex Court had clarified in a subsequent occasion that categorization would not mean that prosecution for violation of the Factories Act should not be initiated and, therefore, it is for the petitioners to come out clean in the trial but would admit the fact that the Company is not made an accused in all these proceedings.
10. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
11. The afore-narrated facts are not in dispute and, therefore, not reiterated. The company-M/s MSPL Limited held a valid licence to mine up to 14-03-2022. The lease was granted and operations started by the Company in terms of survey and demarcation sketch that was issued by the Department of Mines 14 and Geology. These operations became subject matter of petitions before the Apex Court. The Apex Court appointed a Committee to submit a factual report. The committee bifurcated the violations or the violators into three categories A, B and C. the Company was declared to be in Category-'B' which would be in the encroachment of 10% and was imposed a penalty of Rs.19.84 crores to commence the operations. The petitioners have contended that penalty had been paid to commence the operations. An interlocutory application was filed before the Apex Court seeking clarification with regard to prosecution. For this clarification the learned High Government Pleader places reliance upon the order dated 15-09-2014 passed by the Apex Court on the application which reads as follows:
In its first step, violations were sought to be categorized. The classification was recorded by this Court in Samaj Parivartana Samudaya and others vs. State of Karnataka and others (2013) 8 SCC 154 as under:
"IV. CLASSIFICATION OF LEASES IN DIFFERENT CATEGORIES ON THE BASIS OF THE LEVEL OF ILLEGALITIES FOUND.
27. CEC, based on the extent of illegal mining found by the Joint 15 Team and as appropriately modified by CEC in its Proceeding dated 25th January, 2012 and after considering the other relevant information has classified the mining leases into three categories namely "Category-A", "Category-B"
AND "Category-C",
28. "Category-A" comprises of : (a) working leases wherein no illegality/marginal illegality have been found and (b) non working leases wherein no marginal/ illegalities have been found. The number of such leases comes to 21 & 24 respectively.
29. "Category-B", comprises of : (a) mining leases wherein illegal mining by way of (i) mining pits outside the sanctioned lease areas have been found to be up to 10% of the lease areas and/ or (ii) over burden/waste dumps outside the sanctioned lease areas have been found to be up to 15% of the lease areas and (b) leases falling on interstate boundary betweens Karnataka and Andhra Pradesh and for which survey sketches have not been finalized. For specific reasons as mentioned in the statement of "Category-B", leases, M/s.S.B. Minerals (ML No. 2515), M/s.
Shantalaxmi Jayram (ML No. 2553), M/s. Gavisiddeshwar Enterprises (ML No.80) and M/s.
Vidhutigudda Mines (Pvt.) Ltd. (ML No. 2469) have been assigned in "Category-B". The numbers of 16 such leases in "Category-B" comes to 72.
30. "Category-C" comprises of leases wherein (i) the illegal mining by way of (a) mining pits outside the sanctioned lease area have been found to be more than 10% of the lease area and/or (b) overburden/waste dumps outside the sanctioned lease areas have been found to be more than 15% of the lease areas and/or (ii) the leases found to be involved in flagrant violation of the Forest (Conservation) Act and/or found to be involved in illegal mining in other lease areas. The number of such leases comes to 49."
The first step was to determine what was the extent of violation so as to place the defaulters in the categorization expressed hereinabove. Consequent upon the arduous efforts made by this Court, demarcations were carried out. Its finality was expressed by this Court in the aforesaid judgment, relevant extract whereof is being reproduced hereunder:
"47. We make it clear that we have not understood the above statement as an admission on the part of the Federation and it is on a consideration of the totality of the facts placed before us that we accept the findings of the survey conducted by the Joint Team constituted by the orders of this Court and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or 17 Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by any body or authority."
The issue that concerns us now is, whether the violators can be dealt with in terms of the statutory provisions? Our attention has been invited to the different orders passed by the Karnataka High Court wherein, prosecution was quashed merely on account of intervention of this Court, in adopting the regulatory measures referred to hereinabove. It is therefore that I.A No.215 came to be filed in this Court seeking inter alia the following reliefs:
"A) Direct initiation of prosecution of Category A, B and erstwhile Category C lessees for violation of relevant laws with respect to encroachment of forest area;
B) Direct the CEC to make
suitable recommendations for
investigation of illegalities after taking into consideration the averments and evidences supplied by the Petitioners in the present application and in IA 140 and following submissions dated 20-02-2013, 7-3-2013 and 21-3-2013."
In disposing of the aforesaid prayers made in the I.A, we consider it just and appropriate to 18 clarify, that the measures adopted by this Court, at no stage, should be considered to be indicative of the fact, that prosecution shall not be initiated against those who had violated penal provisions of law. The instant order should not be treated as one whereby prosecution should now be initiated even against minor violators. We would feel that such of the lessees, which have now been classified as 'Category-A' shall be treated as minor violators, and unless there is some blatant abuse of power, no prosecution should be initiated against them.
12. The Apex Court made it clear that at no stage the measures adopted should be considered to be indicative of the fact that the prosecution shall not be initiated against those who have violated penal provisions of law and therefore, FIR that was registered was sought to be taken to its logical end by the State. While doing so, it cannot be considered that there can be proceedings initiated in violation of law. Section 82(B) of the Karnataka Forest Act, 1963 reads as follows:
"82B. Offence by Companies etc.--(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of the commission of the offence shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any such person liable to any punishment if he proves that the offence was 19 committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1) where an offence under this section has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, secretary or other officer of the Company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purpose of this section,--
(a) "Company" means anybody corporate and includes a firm or other association of individuals; and
(b) "Director" in relation to a firm, means a partner in the firm."
13. Section 82B deals with offences by companies and fixes vicarious liability on the officers of the Company Board. Therefore the Company ought to have been made an accused to these proceedings. Non-arraigning of the Company as an accused is fatal to the proceedings. The law in this regard is no longer res integra as the Apex Court in the case of ANEETHA HADA v. GOT FATHER TOURS AND TRAVELS has while interpreting Section 141 of the Negotiable Instruments Act 20 which is in pari materia with Section 82B of the Forest Act has held as follows:
53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.
56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company.
The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context.
59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the 21 prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 51. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove."
14. The said judgment is followed by a Bench of three Judges of the Apex Court in Sunil Bharti Mittal (supra) where in it is 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. 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 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 22 where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 :
(2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.
15. In the light of the judgments rendered by the Apex Court as afore-quoted and the facts obtaining being undisputed, the Company not being made a party, the proceedings do get vitiated as it is in violation of Section 82B of the Act. The other submission that is made by the learned counsel appearing for 23 the petitioners is that when the FIR was registered against the petitioners in the year 2017 what transpires in the interregnum assumes significance and merits consideration. While filing the charge sheet on the FIR the observation insofar as the Company is concerned reads as follows:
ªÉÄ: JAJ¸ï¦J¯ï UÀtU  ÀÄwÛUÉ ¸ÀASÉå: 2416 UÀtÂUÀÄwÛUzÉ ÁgÀgÀÄ PÀª æ ÀħzÀÝ ªÀÄvÀÄÛ PÀıÀ® vÁAwæPv À ¬ É ÄAzÀ PÁ£ÀÆ£ÁvÀäPª À ÁV CgÀtå ¥Àzæ ÃÉ ±Àz° À è UÀtU  ÀÄwÛUA É iÀÄ°è survey and demarcation £ÀPÉëAiÀÄ ¥ÀPæ ÁgÀ UÀtU  ÁgÀjPÉ ªÀiÁrzÁÝg.É
16. The report of investigating agency filed before the Court discloses that at the time when the lease was granted the operations were carried out by the petitioners strictly in accordance with the survey and demarcation sketch. The boundaries in the forest area were changed in terms of the CEC report and the direction of the Apex Court. It is here they find that there is violation and encroachment coming within 10% and is categorized as Category-B. The final report having been filed before the Court, the learned Magistrate has taken cognizance of the offences punishable as noted supra. The FIR which was registered on 19-11-2012 had resulted in opining that the petitioners had not committed violation of the sketch. 24 The charge sheet is filed for offences basing the observations upon re-investigation of the CEC as there was alteration in the boundaries. The order taking cognizance by the learned Magistrate on the Forest Act reads as follows:
"This charge sheet is filed by the IO for the offence punishable under Section 24(a), (d), (f), (g), (gg), (h), 80, 82, 82B and 109 of the Karnataka Forest Act r/w Rules 144 and 165 and Section 4(1), 4(1A) and 21 of MMDR Act.
As per the judgment of the Hon'ble High Court of Karnataka in Crl.P.No.679 of 2017 between Vivek and another v. The State of Karnataka and another, it is held that -
"when final report is filed for the offence under the MMRD Act and penal laws, the magistrate has to take cognizance of the offences under the IPC except the offence under MMRD Act and KMMC Rules."
In view of the said order, this Court can take cognizance only for the offence punishable under the Forest Act.
Accordingly cognizance is taken only for the offence punishable under Section 24(a), (d),(f),
(g),(gg), (h), 80, 82, 82B and 109 of the Karnataka Forest Act r/w Rules 144 and 165.
Issue summons to A1 to A8 and for appearance of A9 to A11."
17. Therefore, the trial that has to be conducted is for the offences punishable under the Forest Act. If the trial has to 25 be conducted, the Company has to be an accused. The Company not being an accused is fatal to the proceedings is what the Apex Court in the afore-extracted judgment has held. Therefore, the offences under the Forest Act cannot be tried without the Company being made a party. There are no allegations against the directors or officers of the company individually made in the case at hand, these are offences against the company. Wherefore, the complaint, FIR or the charge sheet that is filed in the absence of the Company as a party cannot be sustained in law.
18. The reliance placed on the order of the co-ordinate Bench in the case of S.V. SRINIVASALU AND OTHERS v. STATE OF KARNATAKA - Criminal Petition No.101627 of 2014 decided on 12th February 2016 would not be applicable to the facts of the case as the issue that is considered in the case at hand was not the issue before the coordinate Bench in the said order. Therefore, in the light of the judgments rendered by the Apex Court, this order relied on becomes inapplicable. 26
19. For the aforesaid reasons, I pass the following:
ORDER
i) The criminal petitions are allowed.
ii) The proceedings in C.C.No.888 of 2017 pending before the Principal Civil Judge and JMFC, Hosapete, stands quashed against the petitioners.
Sd/-
JUDGE Mrk/-