Punjab-Haryana High Court
Dow Agro Science India Pvt. Ltd vs Central Bureau Of Investigation on 19 August, 2013
Author: Sabina
Bench: Sabina
Criminal Misc. No.25244 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Misc. No.25244 of 2012 (O&M)
Date of Decision: August 19,2013
Dow Agro Science India Pvt. Ltd. ...........Petitioner
Versus
Central Bureau of Investigation ..........Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr. R.S.Rai, Senior Advocate with
Ms. Shikha Tandon,Advocate
for the petitioner.
Mr. Sumeet Goel,Advpcate for the respondent
**
Sabina, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 challenging order dated 10.7.2012 whereby authorized representative of the company was directed to furnish bail bonds.
Learned senior counsel for the petitioner has submitted that the authorized representative of the Company was not an accused and was to merely appear and watch the interest of the Company. Hence, the authorized representative of the Company could not be directed to furnish bail bonds. Learned counsel has placed reliance on Sri Hiralal Gupta vs. Republic of India and Others 2010 (Supp.-1) OLR-518 wherein it has been held as under:-
"Sub-Section(3) of Section 305 in essence lays down that Raj Kumari 2013.08.23 10:45 I attest to the accuracy and integrity of this document Criminal Misc. No.25244 of 2012 (O&M) 2 charges should be read over and explained to the representative of the Company, the evidence should be recorded in his presence and he should be examined under Section 313 of the Code, for and on behalf of the Company. The provision has been enacted to overcome practical difficulties in trial of a Corporation. In that situation, his representative is to be examined, charge has to be explained etc., It is also very clear that the Parliament have not used the word accused to describe the representative of the Company. Hence, a representative of the Company is not an accused and,therefore, there is no need to him for surrender in the Court and go on bail.
This question can also be seen from another angle. Section 436 speaks of the duty of the Court to release the accused on bail in case he is arrested etc., for offences which are bailable in nature. Section 437 provides that when any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of the police station or appears or is brought before the Court other than the High Court or Court of Sessions, he may be released on bail subject to certain conditions. So, the question of bail arises only when(i) any person is a accused of or suspected of the commission of bailable or non-bailable offences and
(ii) he is arrested by the police officer or he appears or Raj Kumari brought before the Court. There is no dispute regarding the 2013.08.23 10:45 I attest to the accuracy and integrity of this document Criminal Misc. No.25244 of 2012 (O&M) 3 assertion that the Company, DITCO is the accused and H.P.Gupta is its representative. The representative appointed under Section 305 Code is not a person accused of or suspected of commission of offence nor he has been arrested or detained without warrant. So, there is no necessity of his applying for bail."
Learned counsel for the respondent, on the other hand, has opposed the petition and has submitted that the authorized representative of the Company was required to furnish bail bonds so as to ensure his presence before the trial Court.
Section 305 Cr.P.C. reads as under:-
"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.
(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 Raj Kumari 2013.08.23 10:45 I attest to the accuracy and integrity of this document Criminal Misc. No.25244 of 2012 (O&M) 4 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."
Thus, as per the above provision, where a Company is an accused then, it may appoint a representative during trial to represent it. As per 305(4) Cr.P.C. where the representative of the Company fails to appear then 305(3) shall not apply. Thus, in that situation, the proceedings in the trial Court shall be carried out in the Raj Kumari 2013.08.23 10:45 I attest to the accuracy and integrity of this document Criminal Misc. No.25244 of 2012 (O&M) 5 absence of the representative. Thus, a representative of the Company is not to be equated as an accused. The said representative of the Company is not liable for punishment. The said representative merely represents the Company during trial to watch its interest. Since the representative of the Company is not an accused, then he cannot be asked to furnish bail bonds.
In these circumstances, this petition is allowed. The part of the impugned order dated 10.7.2012 whereby the representative of the Company was directed to furnish the bail bonds/surety bonds is set aside.
(SABINA) JUDGE August 19, 2013 arya Raj Kumari 2013.08.23 10:45 I attest to the accuracy and integrity of this document