Document Fragment View

Matching Fragments

11. The scheme of Section 10 of the Act calls for a somewhat closer analysis for its true construction. The word 'company' employed therein as has already been noticed, includes within its sweep a partnership firm and the 'director in relation to such a firm means a partner of that firm. Sub-section (1) creates a deeming legal fiction whereby every person who is in charge of or responsible to the firm for the conduct of its business becomes automatically guilty of the off nee committed by such a firm and is liable to be proceeded against and punished accordingly. No other overt act or direct commission of the offence by such a person is necessary barring the fact of being in charge of the partnership firm or responsible thereto for the conduct of its business. As already noticed, this was by virtue of the deeming fiction under Sub-section (1) of Section 10 of the Act. The basic liability for the offence alleged or established may well be against the partnership firm as such. Once the allegation is levelled or established, then by a fiction of the law every person, including a partner in charge of or responsible to the firm for the conduct of its business, is in the eye of law, deemed as much guilty of the offence as the partnership firm itself.

13. Analysed as above, Section 10 (1) spells out a deeming fiction of vicarious liability and also a rule of evidence laying the burden of proof on persons in charge of and responsible to the company for the conduct of its business.

14. Once it is held as above, the somewhat dubious argument of Mr, Sahay, the learned Counsel for the petitioners, falls in its place and stands conclusively repelled. It is settled beyond cavil that rules of evidence and deeming fictions are not to be expressly spelt out and pleaded. They are matters, which are for consideration and application in the course of the trial. To require that the complaint itself must plead a rule of evidence or, in terms, spell out a deeming fiction provided by the Statute therein is an argument bordering on hypertechnicality. One must always keep in mind the broader perspective that the administration of criminal law is more a matter of substance than of form and it should not be allowed to be pettifogged by obscure technicality. This argument seems now to be wholly well covered and concluded by the recent Full Bench judgments of this Court in Ram Kripal Prasad and Ors. v. The State of Bihar and Ors. 1985 (33) B.L.J.R. 240; Mahmud AH v. The State of Bihar (supra) and Badri Prasad Gupta v. The State of Bihar, (supra). Therein also in the context of Section 14 of the Employees Provident Funds Scheme, 1952 and Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 35 of the Bihar Shops and Establishment Act, 1953, it was argued that the petition of complaint must in terms plead each and every relevant fact and, indeed, in terms in pari materia with the respective Statutes. Such a doctrinaire stand, however, was categorically rejected in all the aforesaid three Full Benches. In particular, it was concluded in Mahmud AH v. The State of Bihar as under:

19. When closely viewed, Sub-section (2) is clearly indicative of the fact that it is both a rule of evidence and yet again a deeming fiction for vicarious culpability. Perhaps, the one crucial aspect herein is the use of the word 'proved' in the earlier part of the Sub-section. It comes into play only at the stage of the availability of adequate proof that the offence has been committed with the consent, connivance or neglect or the principal or other officers of the company. The usual and the normal rule of criminal law is that the charge must be brought home directly to the offender without any reasonable doubt. However, Sub-section (2) lightens the burden by providing that even if it is proved that the principal officers were guilty of consent or connivance or negligence with regard to the offence committed by the company or a partnership firm, they would be within the net of culpability. This has been effectuated by an express deeming fiction that if any of the aforesaid ingredients is established, then the officials concerned will be held guilty of that offence and be punished accordingly. Sub-section (2) may truly come into play during the course of the trial and even at its conclusion when it is proved that the offence has been committed with the consent, connivance or neglect or the company's or the firm's principal officers or partners. Thus, the stringent rule in Sub-section (I) in a way even provide; a second line of defence for the prosecution. Even where the case set up is that the offence has been directly and willfully committed by the company or partnership and its officers or partner, but the same cannot be established to the hilt, this Sub-section provides that such officer, who would still be guilty if the relatively lower culpability of even consent or mere connivance or neglect is laid at his door. This is probably and patently due to the difficulties of proving the charge beyond reasonable doubt in cases of vicarious liability for offences committed by the legal and artificial persons as compared to natural persons. It bears repetition that this Sub-section is also a rule of evidence for fastening the guilt when consent, connivance or neglect is proved against the persons named therein; and a deeming fiction of law for vicarious liability for the crimes committed by the company or partnership firm itself.

20. Now, once it is held as above, it does not need any elaboration that rules of evidence or deeming fictions of law are not to be pleaded as such. No principle warrants that either in a complaint or in a first information report the literal words of the statute must be incorporated or what is even more important the rule of evidence with regard to the burden of proof and a deeming fiction of guilt should be quoted at the foundational stage. Therefore, to require that the complaint or the first information report must inflexibly plead consent, connivance or negligence of the officers at the threshold stage is, to my mind, patently fallacious. Seen broadly, the deeming fiction is primarily one of evidence and proof and not of the literal formalities of pleading, which are foreign to the criminal law. I deed, it must be noticed that in a particular case the prosecution charge maybe one of direct or deliberate or wilful commission of the offence by the company or partnership or its officers or partners. In such a situation to require that they should plead at the outset that it was only by way of connivance or neglect would be an absuraity or indeed, destructive or contrary to the case set up. Again, as has been noticed above, Sub-section (2) applies independently and notwithstanding anything contained in Sub-section (1). Therefore, to require that the pleading of consent, connivance or neglect must be incorporated even in regard to the guilt under Sub-section (1), which is absolute pertaining to the person is charge of and responsible to the company, is in a way rather more fallacious.