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Lachhi Ram (Laxminarain) and ors. Vs. Inspector, Insecticides, Sri Ganganagar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Appeal No. 124 of 1978
Judge
Reported in1979WLN16
AppellantLachhi Ram (Laxminarain) and ors.
Respondentinspector, Insecticides, Sri Ganganagar and anr.
DispositionApplication allowed
Cases ReferredR.P. Kapoor v. The State of Punjab
Excerpt:
.....the offence under section 33 and are liable to be proceeded against, in respect of such persons, written consent should be obtained under section 31.;where a written consent is a condition precedent, in my opinion, the authority competent to give consent, is required to apply its mind as to who is the perpetrator of the crime. the application of mind is not only required to be made as to what offence is committed, but also as to woo has committed the same and who is to be prosecuted. without such application of mind the very object of section 31 would be defeated. the consent for specified prosecution, as observed by their lordships of the supreme court, would mean only us to what offence has been committed and by whom.;(b) criminal procedure code - section 482--inherent..........of the licence punishable under section 29(3) of the act. before presenting the complaint a written consent was obtained from the dy. director (plant protection), rajasthan, jaipur, who is a person authorised by the state government under section 31(1) of the act. this consent was for the prosecution of messrs thakur dass and sons.3. a point was raised before the chief judicial magistrate that the consent obtained under section 31 of the act is invalid in as much as the consent was not obtained against the accused persons, but was only obtained against m/s. thakur dass and sons. the learned chief judicial magistrate, after hearing the parties, held that the prosecution of lachhi ram, mohanlal and thakur dass, prima facie, appears to be proper. it may be mentioned that during the.....
Judgment:

M.C. Jain, J.

1. Lachhi Ram and Mohanlal have presented this application under Section 482, Cr.P.C., for quashing the proceedings against them under 18(2) 29 of the Insecticides Act, 1968 (46 of 1968)(hereinafter referred to as 'the Act') on a complaint presented by Harbans Singh, Insecticides Inspector before the Chief Judicial Magistrate, Sri Ganganagar.

2. Briefly, the prosecution case, as stated in the complaint is the that accused persons, namely, Thakur Dass, Shvam Sunder son of Thakur Dass, residents of Sri Ganganagar for firm Thakur Dass and Sons and ac used Mohanlal are carrying on the business of sale of insecticides at shop No. 168, Jawahar Market, Sri Ganganagar, for which they have no licence, though they had licence to carry on the said business at shops Nos. 211 and 212, Railway Road, Sri Ganganagar. There was a sign-board for the sale of insecticides out side the shop No. 168. The complainant visited shop No. 168 on 13.9.1976 and found insecticides medicines displayed for sale. On inquiry from the sales man it was found that the shop is of Messrs. Thakur Diss and Sons. After some time the sales man called Lachhi Ram son of Thakur Das,who also informed that the shop is of Messrs. Thakur Dass and Sons and produced licence No. 18. The said licence was not for shop No. 168. Thus, there was a contravention of the licence punishable under Section 29(3) of the Act. Before presenting the complaint a written consent was obtained from the Dy. Director (Plant Protection), Rajasthan, Jaipur, who is a person authorised by the State Government under Section 31(1) of the Act. This consent was for the prosecution of Messrs Thakur Dass and sons.

3. A point was raised before the Chief Judicial Magistrate that the consent obtained under Section 31 of the Act is invalid in as much as the consent was not obtained against the accused persons, but was only obtained against M/s. Thakur Dass and Sons. The learned Chief Judicial Magistrate, after hearing the parties, held that the prosecution of Lachhi Ram, Mohanlal and Thakur Dass, prima facie, appears to be proper. It may be mentioned that during the pendency of the case Thakur Dass expired. However, the learned Magistrate found that Shyam Sunder is in no war associated with the business and is not shown to be a partner, so no prima facie; case is made out against him, Accordingly; he was discharged. Lachhi Ram and Mohanlal, being aggrieved against the order of the Chief Judicial Magistrate, have filed this application. It may also be mentioned that a question of limitation for instituting the complaint was also raised before the Chief Judicial Magistrate by the accused persons, but that objection has not been raised before me and the learned Counsel for the applicants submitted that in this regard objection will be raised, if necessary, after recording of the evidence. Thus, I need not consider the question of limitation in the present application.

4. Now I take up the main point in controversy in the present application. The controversy, which arises for consideration, is as to whether the present applicants Lachhiram and Mohanlal can be prosecuted on the basis ?of the consent issued by the Deputy Director, Plant Protection, Rajasthan, Jaipur, which is for the prosecution of Messrs Thakur Dass and Sons? Shri B.R. Arora, learned Counsel for the applicants, submitted that under Section 31 of the Act it is a condition precedent that there should be a written consent for the prosecution of an offence under the Act in the circumstances of this case. This provision is analogous to the provision of Section 20 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Adulteration Act') and the provision of the Adulteration Act has come up for interpretation in various decisions of the Supreme Court and the High Courts. According to the well established position emerging from those decisions, there should be application of mind by the authority giving the written consent, to the facts of the case and thereafter the consent is to be accorded and the consent has not been considered to be an empty formality. In the present case, on perusal of the written consent issued by the Deputy Director, Plant Protection, Rajasthan, Jaipur, it would be obvious that the Authority issuing the consent only gave consent for prosecution of the firm and not its partners or any other person responsible for the commission of the alleged offence. He urged that Section 33 of the Act, no doubt, deals with offences by companies and the word 'company' includes a firm, and the word 'director' means a partner in the firm, but Section 33 deals with as to and in what circumstances persons connected with the business of the company or the firm can be held responsible for the alleged offence. The question of consent has to be dealt with independently of Section 33 and persons who are responsible under Section 33 can only be prosecuted after obtaining written consent under Section 31 of the Act. In support of his contention, the learned Counsel placed reliance on a Division Bench decision of the Calcutta High Court Labchand Chhaggar v. The Sanitary Inspector Solar (1951) 6 DLR Calcutta 98. He also placed reliance on certain observations of his Lordships Chhangani, J., in case Bijai Lal v. State 1965 RLW 29.

5. The learned Public Prosecutor, on the other hand, submitted that the partners of the firm can be prosecuted even when consent is against the firm. He urged that under Section 31, the requirement is only this that there should be a written consent by the State Government or by a person authorised in this behalf by the State Government for prosecution for an offence under the Act. He submitted that there is a consent issued by the competent-authority in the present casa against the firm and in pursuance of such a consent, these who are responsible for the commission of the offence under Section 33 can be prosecuted. It is not necessary that all those persons, who are responsible under Section 33 for them consent under 31 is a prior condition. He referred to some decision in which partners and their firm have been, prosecuted and it has been examined as to whether the individuals can be held guilty under Section 33 and from those decisions, he submitted that had there been a question of consent involved in those cases such a point would have been raised. He also referred to some decisions, wherein firm has not been prosecuted and it has been held that the prosecution of the partners is bad and they cannot be held guilty. His main emphasis is that the question of consent should be examined in substance and not in its form. When consent has been issued against the firm it implies that it is a consent against all the partners of the firm and so the partners of the firm can be prosecuted under the consent obtained against the firm. The learned Public Prosecutor also raised an objection that at the present stage of the case, it-would not be proper for this Court to quash, the proceedings, in exercise of its inherent powers under Section 482, Cr.P.C.

6. Before dealing, with the respective contentions of both the sides it would be proper to have a glance at the provisions of Section 31 and 33 of the Apt, which, for, the facility of reference. I; reproduce as under:

Cogni 33. (1) No prosecution for an offence under this Actzance & shall be instituted except by, or with the written consent of,trial of the State Government or a person authorised in, this, behalf byoffences, the State Government(2). No court inferior to that of a presidency Magis-trate or a Magistrate of the first class shall try any offenceunder, this Act.Offences 33. (1) Whenever an offence under this Act has by, com- been committed by a company, every person who at the timepanies. the offence was committed, was in charge of, or was responsibleto the company for, the conduct of the business of the com-pany, as well as company, shall be deemed to be guilty of theoffence and shall be liable to be proceeded against and, puni-shed, accordingly;Provided that nothing contained in this sub-sectionshall render any such person liable to any punishment underthis Act if he proves that the offence was committed withouthis knowledge or that he exercised all the due diligence toprevent the commission of such offence.(2) Notwithstanding anything contained in Sub-section (1), wherean offence under this Act has been committed by a companyand it is proved that the offence has been committed with theconsent or connivance of, or is attributable to any neglect on.the part of, any director, manager, secretary or other officerof the company, such, director, manager, secretary or otherofficer shall also be deemed to be guilty of that offence & shallbe liable to be proceeded against and punished accordingly;Explanation. - For the purpose of this section,-(a) 'company' means any body corporate and includes a firm or other association of individuals, and(b) 'director' in relation to a firm, means a partner in the firm.

7. On perusal of the above provisions, it would be clear that Section 31 bars institution of prosecution for an offence under the Act unless the prosecution is by the State Government or by a person authorised in this behalf by the State Government or with the written consent of the State Government or with the written consent of a person authorised in this behalf by the State Government. Section 31(1) is couched in the negative language. Whenever any prosecution is made, not by the State Government or by a person authorised in this behalf by the State Government the condition precedent is, that there should be a written consent of the State Government or a person authorised in this behalf by the State Government. Unless there is such written consent, cognizance of offence cannot be taken by the court. The provision of according of written consent has a certain aim behind it and that appears to be, prevention of frivolous prosecutions. The authority issuing consent will examine the facts of the case and if in its opinion the case is found fit and proper for the prosecution, the authority will accord necessary consent. I shall be dealing with the cases in which similar provisions under the Adulteration Act have come up for consideration.

8. As regards Section 33 of the Act it may be stated that it deals with the offence by the companies and the explanation to Section 33 explains the words 'company' and 'director'. According to this explanation it can be taken that Section 33 deals with offences by the firms and their partners. According to Section 33 of the Act, whenever any offence is committed by the company, this section provides that every person who at the time the offence was committed was incharge of or 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 offence and shall be liable to be proceeded against and punished. It would appear from this provision that only those persons who are in charge of the business or who ire responsible for conduct of the business can be proceeded against and not others. It does not lay down that those who are not in charge of the business or those who are not responsible for the conduct of the business, will be deemed to be guilty and can be proceeded against. The proviso to Sub-section (1) of Section 33 further saves such persons connected with the company or the firm who prove that the offence was committed without their knowledge or that they exercised all diligence to prevent the commission of the offence. Sub-section (2) further provides liability of persons mentioned therein and it is in the nature of an over-riding provision to what is contained in Sub-section (1). Sub-section (2) provides that where art offence has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer, then they should also be deemed to be guilty. Thus, Section 33 deals as to who can be held responsible when the offence is committed by the company besides the company itself and as to when persons connected with the business of the company can save themselves from being held guilty of the offence In Sub-section (1) and (2) of Section 33 we find the expression shall be liable to be proceeded against. The question will arise, thus, whether consent will be needed for those who are liable to be proceeded against under Section 31, which bars prosecution without consent. It is true that Sections 31 and 33 require conjoint reading and on such conjoint reading, it is to be found as to whether consent against the firm is sufficient compliance of the provisions of Section 31 with regard to the persons who are individually responsible for the commission of the offence under Section 33 of the Act.

9. Sections 31 and 33 of the Act are analogous to Sections 20 and 17 of the Adulteration Act respectively. I need not reproduce these two provisions of the Act literati in Act, for it may be state that these two provisions are couched in the same language as we find in Section 31 and 33 of the Act, except that there is a proviso to Sub-section (1) to Section 20 of the Adulteration Act which confers a power on a purchaser for prosecution for an offence under the Adulteration Act, if he produces in court a copy of the report of the public analyst along with the complaint. Else, it can be said that so far as these provisions are concerned, the Adulteration Act is a statute in pari materia and the decisions relating to these provisions of the Adulteration Act may be helpful for interpreting and construing Sections 31 and 33 of the Act.

10. In the State of Bombay v. Parshottam Kanaiyalal : [1961]1SCR458 their Lordships of the Supreme Court, while dealing with the provisions of Section 20(1) of the Adulteration Act observed asunder:

The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore provides that the complaint should, be filed either by a named or specified authority or with the written consent of such authority. To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the cases and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable.

11. In Corporation of Calcutta v. Md. Omer Ali and Anr. : AIR1977SC912 their Lordships of the Supreme Court placing reliance on the earlier decision of the State of Bombay v. Parshottam Kanaiyalal (supra) observed that the authority an whom power had been conferred for giving written consent has to give his written consent to a specified prosecution and while giving the written consent, the competent authority or person has to apply his mind not to the question as to who should be authorised to file the complaint, but to the desirability and propriety of filing a particular prosecution and once that is done and the written consent is given, the requirement of Section 20(1) is satisfied. Thus, their Lordship considered the purpose and object behind the provision contained in Section 20(1) of the Adulteration Act in these decisions and the desirability and propriety of the prosecution is required to be considered by the authority giving the consent From the observations of their Lordships of the Supreme Court, it can be said-that the authority before giving the consent should satisfy as to whether there is a prima facie case against the person to be proceeded' against. The expression 'prosecution' under Section 31 of the Act was considered in Bijai Lai's case cited by Shri Arora. In Bijai Lal's case Chhangani, J., observed that the expression 'prosecution' reasonably interpreted must have reference, to specific individuals and to specific facts against them and it follows that the authority instituting the prosecution or authorising the prosecution by its consent should apply its mind to the alleged commission of an offence by the accused person and should be satisfied that the accused has to be prosecuted for the said offence. His Lordship Chhangani, J, considered that Section 20 no doubt uses the expression 'no prosecution for an offence' and not 'no prosecution for an offender', but the question, however, is whether the use of this language can be reasonably interpreted to authorise a Magistrate to take cognizance of an offence against persons whose prosecution was not initiated by the authorities specified in Section 20. In Bijai Lal's case reliance was placed on the following observations of Sankaran, C.J., speaking for the Court in City Corporation of Trivandram v. V.P.N. Arunachalum Reddiar AIR 1960 Kerala 356:

The sanction required by Section 20 is not an empty formality. The sanction must show that the authority giving the sanction had applied his mind to the alleged commission of an offence by the accuse person and was satisfied that the accused has to be prosecuted for the said offence.

Necessarily it follows that the sanction must be for the prosecution of specified individuals and for specific offence.

Chhangani, J., then observed that a Magistrate while taking cognizance of an offence under the Adulteration Act on a complaint filed against specified individual or individuals cannot issue process and initiate prosecution against other persons.

12. Labchand Chaggar's case relied upon by Shri Arora is a case on Section 15 of the Bengal Food Adulteration Act and this provision of the Bengal Act was analogous to Section 31 of the Act. In that cases Labchand Chaggar was prosecuted under Section 6 of the Bengal Food Adulteration Act and a contention was advanced that the proceedings cannot be carried on in law in the absence of a proper sanction for his prosecution under Section 15 In that case the Chairman of the District Board placed an order for prosecution against (1) Chhagmal Labchand and (2) Mulchand Chhagar under Sections 6(1)(2), 13(2) and 21 of the Bengal Food Adulteration Act. The Division Bench of the Calcutta High Court observed that Labchand Chhagar is neither Mulchand Chhagar nor Chhagamal Labchand. It appears that there is a firm which carries on business under the name and style of Chhagmal Labchand and it was observed that the firm Chhagmal Labchand cannot be considered to be identical with Labchand Chhagar, the petitioner, assuming that he is one of the partners of the firm. It was observed that assuming that the prosecution of the firm Chhagmal is in accordance with law, sanction for prosecution of that firm does not amount to a sanction for prosecution of any of the individual partners and it was held that there is in fact no order far sanction within the meaning of Section 15, for the prosecution of the petitioner for any offence under the Bengal Food Adulteration Act In the result, their Lordships quashed the proceedings against Labchand Chhagar.

13. No case has been cited by the learned Public Prosecutor wherein this controversy may have been considered that where the consent, is issued in the name of the firm, the partners of that firm can be proceeded against under that consent. If the object of obtaining the written consent is looksd into, it would be clear that the individual partners of the firm cannot be prosecuted unless there may be some nexus between them & the commission of the crime and deemed guilty. This aspect of the case is required to be considered by the authority giving the consent. There should be a case-whereby the individual persons of the partners or officers responsible for the conduct of the business of the firm may be nude liable for the commission of the offence. Then alone they can be proceeded against, otherwise not and such facts should be brought to the notice of the authority giving the consent under Section 31. The two provisions, if read together, would hoi lead to this result or conclusion that the consent may be obtained against the firm without taking notice of the fact as to who are the persons liable to be proceeded against and after obtaining such consent, the actual prosecutor or the complainant may allege facts against such persons accusing them of the commission of the offence. On the contrary the two provisions have to be read together in this manner that persons who are responsible for the commission of the offence under Section 33 and are liable to be proceeded against, in respect of such persons, written consent should be obtained under Section 31. I need not refer to the cases cited to by the learned Public Prosecutor as they do not throw any light on the controversy in question. On the contrary the two Delhi decisions cited by him, rather, helps the present applicants, as on perusal of the complaint it cannot be found that the firm has been prosecuted in the present case. Only the individuals were prosecuted, the first three, namely, Thakur Dass, Lachhiram and Shyam Sunder for Thakur Dass and Sons and fourth Mohanlal. In the body of the complaint, no where there is an allegation as to the capacity of Thakur Dass, Lachhi Ram and Shyam Sunder in relation to the firm Thakur Dass and Sons and sc far as Mohanlal is concerned there is no allegation as to how he is connected with Messrs. Thakur Dass and Sons. The learned Chief Judicial Magistrate determined the question of validity of the consent in view of the provision of Section 33 on the basis that those who are responsible under Section 33 can be prosecuted, though the consent may be against the firm. It was observed by the learned Chief Judicial Magistrate that Lachhiram was conducting the business, as borne out from the inspection memo and Mohanlal is the owner and proprietor of the firm, as evidenced by the letter written by the Assistant Commercial Taxation Officer, Sri Ganganagar, in which it is stated that from 1-4-1975 the firm was reconstituted and its sole proprietorship is of Mohanlal. It may be stated Thakur Dass and Mohan Lal may be responsible under Section 33 of the Act as persons who were incharge of the business or Were responsible for the conduct of the business, but from consent it is clear that no consent was given by the authority for their prosecution. In my opinion, both of them cannot be proceeded against and prosecuted without the requisite consent under Section 31 of the Act, and I am unable to accept the contention of the learned Public Prosecutor that the consent in question should be taken to be a valid consent against all these persons who may be incharge of or responsible for the conduct of the business of the firm. It may be mentioned that position may be different when the prosecution is by the State Govt. or by the person authorised by the State Govt. In that case, the complainant would be competent to make any allegations against any one proceeded against and whatever allegations are made, the complainant would be responsible for them and the question of consent will not arise, but in case where a written consent is a condition precedent, in my opinion, the authority competent to give consent, is required to apply its mind as to who is the perpetrator of the crime. The application of mind is not only required to be made as to what offence is committed, but also as to who has committed the same and who is to be prosecuted. Without such application of mind the very object of Section 31 would be defeated The consent for specified prosecution, as observed by their Lordships of the Supreme Court, would mean only as to what offence has b en committed and by whom and I am also in respectful agreement with the observations made by Shri Chhangani, J., in Bijai Lal's case (supra).

14. Thus, in view of what have discussed above, in my opinion, the prosecution of the present applicants Lachhi Ram and Mohanlal is liable to be quashed. However, before passing the final order in the present application, I may also refer to the objection raised by the learned Public Prosecutor that at this stage of the case powers under Section 482, Cr.P.C., may not be exercised and the matter may be allowed to be gone into by the Magistrate, who will record the evidence of the parties I do not find any substance in his contention of the learned Public Prosecutor. The objection, which is being upheld, goes to the root of the prosecution. That being so in the case of such a nature, powers under Section 482, CrPC, can legitimately be exercised.

15. Dr. Sharda Prasad Sinha v. State of Bihar : 1977CriLJ1146 his Lordships Bhagwati, J., speaking for the Court, observed as under:

It is now settled law that where the allegations set out in the complaint ofhe charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.

16. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 his lordship Untwalia, J., speaking for the Court, observed asunder:

But incase the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the end of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must ?exercise the inherent power very sparingly. One such case would be the desirability of quashing of a criminal proceeding; initiated illegally, vexatiously or as being: without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois-Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing process is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding, as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process, of the Court and or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in as appropriate case under its inherent powers.

His Lordship Untwalia, J., also referred, with approval the observations of Gajendragadkar, J., as he then was, in R.P. Kapoor v. The State of Punjab : 1960CriLJ1239 in para 11 of the reported judgment. Gajendragadkar, J., observed that:

There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to die abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution on continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category.

17. Thus I find the present case a fit one for the exercise of the inherent powers, in the light of the above observations of their lordship of the Supreme Court.

18. In the result the application is allowed and the prosecution of the present applicants is quashed.


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