1. This is a reference under Section 438, Criminal P. C., by the learned Additional Sessions Judge of Alipore recommending that the conviction of the accused Om Khosla under Section 501, Bengal Municipal Act, 1932, and the sentence passed thereunder of a fine of Rs. 50/-, in default to simple imprisonment for one month, be set aside,
2. The facts o the case are briefly as follows : The Electrical . is a limited Company occupying the premises at 136 Jessore Road within the Dum Dum Municipality. On the information that the company had erected a tin shed and a building on the premises without any . sanction from the South Dum Dum Municipality in spite of notices served on the company to stop the illegal construction, the Commissioners of the Municipality filed a compliant against the company M/s. Electrical . describing the company as represented by Om Khosla.
On receiving the complaint the Magistrate summoned Om Khosla under Section 501, Bengal Municipal Act and after trial convicted and sentenced him as described above. The learned Additional Sessions Judge has recommended his acquittal on the ground that there was no evidence to show what was the relationship between Om Khosla and the Company in question.
The learned Additional Sessions Judge pointed out that under Section 69(3), Cr. P. C. service of summons on an incorporated Company might be effected by serving the same on Secretary, Local Manager or other principal Officer of the company, but in the present case that provision of the law was not complied with.
3. Mr. Ajit Kumar, Dutt appearing in support of the reference has urged that in the absence of evidence to show the connection of Om Khosla with the company the conviction cannot be maintained.
4. Mr. J. M. Banerjee appearing for the State has urged that in effect the company was being proceeded against and that the initial order of the Magistrate, Barrackpore, summoning Om Khosla was merely an irregularity and that the company should be deemed to have been summoned in respect of the offence under Section 501 of the Bengal Municipal Act.
This irregularity might have been considered cured pvovided there was evidence on the record to show that Om Khosla was a responsible officer of the company like the Chief Officer, or Managing Director or even one of the Directors. In the absence of any evidence on the point I would agree with the learned Additional Sessions Judge in hold-ing that the conviction cannot be maintained.
5. The difficulty is caused by the circumstance that while the Indian Penal Code as well as the General Clauses Act provides that a person includes a company, and there are decisions that a company can be prosecuted for an offence punishable with fine, there is no clear provision in any law as to the proper representative of the company when a company has to be prosecuted for an offence under the Indian Penal Code or an offence under other Acts like the Bengal Municipal Act.
In view of the terms of Section 69(3), Cr. P. C., showing that summons on a company may be serv-ed on the Secretary or the Local Manager or other principal Officer it may be held by analogy that the Secretary or the Local Manager or the principal Officer of the company will represent the company in such a prosecution.
Accordingly when summons is issued against a company some competent representative like the Secretary, Local Manager or other principal Officer must be described both by name and by designation as representing the company and there must be some evidence of his representative character. Only in such a case the conviction would be Proper.
6. Accordingly, the reference is accepted and the conviction of Om Khosla under Section 501, Bengal Municipal Act and the sentence passed thereunder are set aside, but the case will go back to the learned Magistarate for issuing proper summons on the complaint of the Commissioners of South Dum Dum Municipality.
7. The fine passed on Om Khosla. if paid,will be refunded.