Gujarat High Court
Pest Control (India) ... vs Bloom Dekor Ltd & 6 on 11 July, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/SCR.A/339/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 339 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PEST CONTROL (INDIA) PVT.LTD.-THRO'MANDAR KULKARNI
(DIVISION....Applicant(s)
Versus
BLOOM DEKOR LTD & 6....Respondent(s)
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Appearance:
MR DC SEJPAL, ADVOCATE for MR RC SEJPAL, ADVOCATE for the
Applicant(s) No. 1
MS AMRITA AJMERA, ADVOCATE for the Applicant(s) No. 1
MR TEJAS P SATTA, ADVOCATE for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1 , 7
MS CM SHAH, APP for the Respondent(s) No. 6
THAKKAR AND PAHWA ADVOCATES, ADVOCATE for the Respondent(s)
No. 2 - 3 , 5
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
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Date : 11/07/2017
ORAL JUDGMENT
1. RULE. Learned APP Ms.C.M.Shah waives service of Rule on behalf of respondent No.6 and learned Advocate Mr.Thakkar waives service of Rule on behalf of respondent Nos.1, 2, 3 and 5.
2. This petition is filed under Articles 226 /227 of the Constitution of India and Section 482 of the Criminal Procedure Code with prayer as under:-
"13. (b) To issue directions to the investigating officer to comply with the order passed by the Ld.Addl. Sessions Judge, in Criminal Revision Application No.18 of 2008 dated 25/03/2008 and thereby investigate as far as the Managing Director and other Directors of the company are concerned as well as mudamal articles are concerned.
(c) Issue directions to the Ld. Chief Judicial Magistrate to comply with the order in Criminal Revision Appl. No.18/2008 by the Ld. Addl.
Sessions Judge, Himmatnagar dated 25/03/2008 and thereby issue summons and frame charges against the Managing Director as well as other Directors of the Company;"
3. The facts in brief are as under:-
3.1 The petitioner, a registered Private Limited company, filed criminal complaint before the Court of Page 2 of 13 HC-NIC Page 2 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT Judicial Magistrate at Prantij, Dist. Sabarkantha against respondent No.1 company and four of its Directors. The gist of the allegations made in the complaint was that the complainant company was, as a part of one of its businesses, was giving fumigation services and issuing of a recognized fumigation certificate for the consignments which were to be exported out of India. The fumigation service is carried out under the Certificate of Accreditation of Fumigation Operator issued by the Ministry of Agriculture, Government of India. 3.2 As is a custom of the trade, the importing entity from other country would require certification of fumigation work being carried out as per their requirement and such importing entity may insist on the fumigation being carried out and requisite certificate be issued by the companies which are registered with the authorities of importing country. The complainant company is one such company.
3.3 The accused company had exported a consignment and along with export documents, certificate of fumigation, purportedly issued by the complainant company, was also sent. The destination of the export was Australia and the importing entity from Australia, when cross verified, it came to surface that the certificate of fumigation accompanying the export Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT document of the consignment, was not issued by the complainant company. However, details like number, etc. of the fumigation certificate were identical to the certificate actually issued by the complainant company to the accused company for export of consignment to USA.
Apparently, the certificate being a false and fabricated document, the company filed the aforementioned criminal complaint on 09.05.2017. On the same day, JMFC, Prantij passed an order under Section 202, Cr.PC calling upon Prantij Police Station to inquire and submit a report within a period of 30 days.
3.4 The report as ordered was submitted on 19.10.2007 by the Police Inspector, Prantij Police Station and in the report, it was mentioned that one of the employees of the complainant company, whose responsibility was to send the fumigation certificate along with consignment, had, by mistake, send the certificate and therefore, when the consignment reached Australia and the certificate was demanded by the importing entity, such employee with good intention to save image of the accused company prepared such certificate and sent it to the importing entity in Australia. On the basis of this report, JMFC, Prantij issued process under Section 204, Cr.PC for offences under Sections 420, 465, 467, 468, 471 and 472 of the Page 4 of 13 HC-NIC Page 4 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT Indian Penal Code.
3.5 The complainant company preferred Criminal Revision Application No.18 of 2008 contending that the report filed pursuant to order under Section 202, Cr.PC was filed in casual manner without really making an inquiry as is necessary to file report after the order is passed by the Magistrate Court. What was the basis of report was a confessional statement of one particular employee of the company taking upon his head the responsibility and recording stereotype statements of other responsible persons of the company. 3.6 Appreciating the submissions made in revision application, 2nd Additional Sessions Judge, Sabarkantha passed an order dated 25.03.2008 allowing the revision application and issuing certain directions to the Investigating Officer to complete inquiry by taking pointed steps contained in the order. The revisional Court also directed the Investigation Officer to submit a report within a period of one month after carrying out investigation, considering the pointed directions in this order. The Police Inspector, Prantij Police Station submitted a report dated 25.05.2010 and reiterated the story which had already formed part of previous report.
3.7 The case therefore is now at a standstill after
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filing of this report purportedly under the order of the revisional Court.
4. Learned Advocate for the petitioner, while taking this Court through the report dated 19.10.2007, order of the revisional Court dated 25.03.2008 and the subsequent report dated 25.05.2010, submitted that the inquiry carried out pursuant to the order passed under Section 202, Cr.PC was merely an eyewash. Apparently, the respondent company and its officials got together and decided to put blame on one of the employees and thereby escaped their own criminal liability. He submitted that the revisional Court has correctly appreciated the need for free and fair inquiry, which, in the opinion of the revisional Court, was not at all done and therefore, had given specific direction in which the inquiry was to proceed. Despite this, subsequent report dated 25.05.2010 is merely reiteration of the previous report without adding anything and just to make a show of having followed the direction of the revisional Court. In the subsequent report, only mention is made about typewriter machine, which according to the respondent company was disposed of one and half years back.
4.1 Learned Advocate for the petitioner submitted that considering the direction of the revisional Court to submit report within a period of one month, the inquiry Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT report is filed after two years and in the meanwhile, an important evidence of typewriter machine was permitted to evaporate, which shows the Inquiry Officer to have acted in hand-in-glow with the respondent company and its officers. He submitted that all that was required for the Inquiry Officer to carry out the inquiry as per the direction of the revisional Court. Instead, after the order of the revisional Court, even statements of the Directors have not been recorded and mere reiteration of the previous report has frustrated the direction given in the revisional Court's order. Moreover, there is no investigation on the point as to what monetary benefit was ultimately gained by the respondent company, which is the motive behind committing the offence. 4.2 Learned Advocate for the petitioner also submitted that the petition deserves to be allowed as the order dated 25.03.2008 passed by the revisional Court has attained finality and nobody, including the respondent company and its Directors have challenged such order. He submitted that obviously, the respondent company and its Directors will not challenge the order as they were confident enough about the report which was to be filed after the order of the revisional Court. This act would otherwise suggest complacency of the Inquiry Officer that too after the order of the revisional Court. He Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT therefore submitted that the order of the revisional Court is now required to be complied with in letter and spirit and thereafter, the Magistrate is required to proceed further.
5. As against this, learned Advocate Mr.Thakkar on behalf of the respondent company and respondent Nos.2, 3 and 5 submitted that the petition itself is not manipulatable as the directions issued by the revisional Court have been duly complied with. He submitted that there is no reason to doubt the findings of the Inquiry Officer submitted in the report which has been done on two occasions at different period of time and that against the real accused person, who is an employee and has admitted his negligence or offence, report is filed and process is issued. Learned Advocate submitted that the order in the revision itself is required to to be set aside on the ground that before the revisional Court, the respondent company and its Directors were not made respondents and therefore, without hearing and behind their back, an adverse order having been passed, should not be permitted to operate.
5.1 He relied upon following judgments to substantiate his argument that where a complaint has been dismissed under Section 203, Cr.PC, against which the complainant approaches higher forum, in that case, Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT hearing of the proposed accused in the complaint dismissed under Section 203 is now mandatory:-
I. In the case of Mohit Alias Sonu & Anr. Vs. State of U.P., reported in AIR 2013 SC 2248.
II. Priyanka Srivastava & Anr. Vs. State of Uttar Pradesh & Ors., reported in (2015) 6 SCC, 287.
5.2 Learned Advocate for the respondents submitted that in the instant case also, a same situation has arisen as the complaint, so far as the respondent company and its other Directors is concerned, no process has been issued and therefore, the facts are akin to dismissal of complaint under Section 203.
6. Learned Advocate Mr.Satta for respondent No.4 submitted that respondent No.4 is not a full time Director and is not responsible for day-to-day functioning and affairs of the company and therefore, he has been wrongly roped into this offence.
6.1 Learned Advocate for respondent No.4 submitted that the prayers made before the Magistrate Court, which is for passing an order under Section 156(3) of Cr.PC, suggest of malafide intention of the complainant company Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT to get the investigation done by the police so that the Directors who are reputed persons in society are harassed.
6.2 Adopting the arguments made on behalf of the respondent company, he also submitted that on two different occasions, inquiry has been carried out and report has been filed and in fact, the order of the Magistrate Court as well as revisional Court has been complied with. He further submitted that issuance of the objectionable certificate, which is alleged to be fabricated document, has not given any benefit to respondent No.4, for which he is required to be proceeded against. He therefore prayed for dismissal of the petition.
7. Considering the rival submissions of the parties, this Court is of the view that the order passed by the learned 2nd Additional Sessions Judge dated 25.03.2008 in Criminal Revision Application No.18 of 2008, which is not challenged by the affected parties, is required to be followed in letter and spirit. In the instant case, it appears that the revisional Court has given a direction to the investigation. The Investigating Agency has not complied with such direction, not only in terms of submitting a report within the stipulated period but also not investigating Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT into the direction contained under the order of the revisional Court. In fact, the investigation has permitted the evidence to evaporate, which of course, would be beneficial to the respondent company.
8. There is absolutely no investigation in the direction as to what benefit the accused company has received as an outcome of the alleged offence, which is the duty of the Investigating Agency to find out. This Court also finds that the report submitted pursuant to the direction of the revisional Court is merely reiteration of the earlier report as if the Investigating Agency has concluded that who is to be roped in as an accused and even after direction of the revisional Court, the same stand is maintained.
9. Insofar as contention of the respondents for hearing to the respondents (accused company) before passing of the order by the revisional Court, this Court is of the view that after the Court passing order under Section 202, Cr.PC, receives a report of inquiry, option available to such Court is either to accept the report and issue process or dismiss the complaint. The Court may also further postpone issuance of process, calling upon the Investigating Agency to make further prob and submit a report. The order, therefore, of the revisional Court is pertaining to a stage where the process under Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT Section 204 is not issued nor complaint under Section 203 is dismissed. Therefore, in this situation, contention of the respondents at this stage cannot be entertained.
10. This Court is conscious of the fact of long lapse of time and the damage which is already caused to the investigation. However, this fact will not preclude the Court from issuing direction to the Investigating Agency to comply with the directions issued by the revisional Court in its order dated 25.03.2008 in letter and spirit and submit a report afresh in compliance with the order of the revisional Court. Upon receipt of the report, the Judicial Magistrate First Class, Prantij to proceed under the provisions of Cr.PC after forming an opinion on the basis of the report submitted.
11. The contention of learned Advocate Mr.Satta for respondent No.4 deserves consideration for the fact that respondent No.4 was only a part-time Director and that not responsible for day-to-day functioning and administration of the respondent company. This fact being relevant to the investigation, will, of course, be borne by the Investigating Agency while carrying out inquiry and submitting the report.
12. The petition stands disposed of with the aforesaid directions. Rule is made absolute to the Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Aug 20 16:32:07 IST 2017 R/SCR.A/339/2011 JUDGMENT aforesaid extent.
Sd/-
(A.Y. KOGJE, J.) SHITOLE Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Aug 20 16:32:07 IST 2017