1996(1) ALL MR 469
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.G. VAIDHYANATHA, J.
Indofil Chemicals Company & Others Vs. Kunwarsingh Madhaosingh Mahane & Others
Criminal Application No.2863 of 1989
7th December, 1995
Petitioner Counsel: Shri. V.P.VASHI with Shri J.V. VASHI
Respondent Counsel: Smt. S.J.PINGULKAR
(A) Criminal P.C. (1973), S.469(1)(C) - Word "Person aggrieved" - He must be a person directly affected by the offence committed by accused - Insecticide Inspector is not a person who is directly affected by offence of importing insecticides without registration. - Insecticides Act (1968) Ss. 21,31 1978 Cri. L. J. 116 1986 Cri. L. J. 1218 Rel. on. (Para 8)
(B) Insecticides Rules (1971), R.28 - Duties of inspector - Periodical inspection - Minimum twice a year - Inspector cannot wait for years together and then launch prosecution. (Para 9)
JUDGMENT : This is a Petition under Section482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India, for quashing the proceedings in Criminal Case No.5310 of 1989 on the file of the Judicial Magistrate, First Class, II Court, Thane. Heard both the sides.
The allegation in the complaint is that the accused No.1 is a company and accused Nos.2 to 14 are its Directors and Accused Nos.15 and 16 are the officers of the Company. The company deals in insecticides. A company or a person engaged in the business of import or manufacture of any insecticide has to apply for registration and get it registered under the Act. The accused No.1-Company has been importing insecticides by name Dinocap since many years. The application of Accused No.1-Company given in 1972 for registration was rejected by the Registration Committee in 1982. Then Accused No.1 made a fresh application on 7.2.1983 which was granted on 11.11.1986.
It is alleged that the Inspector under the Act visited the Accused No.1-Company in 1987 and noticed that the Company had imported insecticides in 1982, 1983, 1984 and 1985 though it had not been registered under the Act. Since the accused has been dealing with the insecticides and importing the same without registration, it is alleged that the accused have committed offences mentioned above.
The learned Magistrate issued process on the said complaint. Being aggrieved by the same, the accused have come up with the present petition. The learned Counsel Shri. V.P.Vashi appearing for the Petitioners has questioned the correctness and legality of the impugned criminal proceedings. It was argued that there was no sanction to prosecute the accused as required under Section 31 of the Act and therefore, the proceedings are liable to be quashed. Then it was submitted that the complaint is filed after the long delay and beyond the period of limitation and therefore, is liable to be dismissed summarily on the ground of limitation. Then on merits it was argued that the accused have been importing the materials since many years and that they have not committed any offence. It was also submitted that at any rate the Directors-Accused Nos. 2 to 14 are not personally liable and their prosecution is not sustainable in law.
Smt. S. J. Pingulkar, learned Additional Public Prosecutor for the State refuted all the above contentions. She maintained that there is a valid sanction for the prosecution and therefore, there is no bar to continue the criminal proceedings. As far as the question of limitation is concerned, it was argued that the Inspector came to know of the offence in 1987 and within three years the complaint is filed and therefore, there was no question of limitation. On merits, it was argued that since the accused have been importing insecticides without registration, they are liable to be prosecuted under the Act.
3. As far as the question of sanction is concerned, there is no dispute that a sanction is a condition precedent for a prosecution under the Act. Section 31 of the Insecticides Act, 1968 clearly provides that no prosecution lies except with the written sanction of the State Government.
It is true that in the complaint there is no mention about obtaining sanction of the Government. However, at the time of hearing of this Petition, the learned A.P.P. produced the sanction order issued by the Government of Maharashtra in September 1989. It clearly shows that the Government has sanctioned the prosecution of the Company in question. The sanction Order is taken on record.
4. In view of this sanction order now produced, the argument on behalf of the Petitioners that the prosecution is bad for want of sanction cannot be accepted. However, it is seen that the sanction order refers to only three accused persons namely, the Company and two Officers Dr. H.D.Shroff and G. Natarajan. hence the prosecution can proceed only against these three persons namely, the Company and two Officers who are Accused No.15 and 16 in the complaint. Hence the prosecution cannot proceed against Accused Nos. 2 to Accused No. 14 for want of sanction against them.
Hence my finding is that in view of the sanction order now produced, the prosecution shall proceed only against accused No.1, 15 and 16 and prosecution against Accused Nos. 2 to 14 is liable to be quashed for want of sanction.
5. As far as second question of limitation, we find that the offence is punishable with imprisonment of two years or fine as provided in Section 29(1) of the Insecticides Act, 1968. The period of limitation is prescribed in Section 468 of the Code of Criminal Procedure which reads as follows :
" 468. Bar to taking cognizance after lapse of the period of limitation. - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be -
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years."
Sub-Clause (3) is not relevant for our present purpose.
I have already noticed that the offence under Section is punishable with imprisonment upto two years. In such a case Section 468(2)(c) is attracted and according to which the period of limitation is only three years.
Now question is as to from which date the limitation begins to run. This has been clearly provided in Section 469 of the Code of Criminal Procedure.
Section 469(1) of the Code of Criminal Procedure reads as follows:
"469. Commencement of the period of limitation.- (1) The period of limitation, in relation to an offender, shall commence,-
(a) on the date of offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier."
Sub-Clause (2) is not necessary for our present purpose.
In view of Section 469(1)(b) the period of limitation commences from the date of the offence.
6. In the present case, according to the complainant, the offence took place in 1982, 1983, 1984 and 1985. The complaint should have been filed for the offence of 1982 by 1985, for the offence of 1983 by 1986 and for the offence of 1984 by 1987 and for the alleged offence of 1985, the complaint should have been filed by 1988. But the present complaint is filed for all the four offences in different years in 1989. If the complaint is filed long after the expiry of three years of the alleged offences from the years mentioned above, it has to be held that the complaint is barred by limitation.
7. To get over this legal obstacle, the learned A.P.P. submitted that Section 469(1)(b) is attracted to this case since the Inspector became aware of the offence only in 1987 and he has filed the complaint within three years. But this sub-clause (b) is attracted when we are concerned with a complaint filed by an aggrieved person or a police officer. Admittedly, the complainant is not a police officer but he is only an Inspector under the Act. Can this Inspector be brought within the meaning of "person aggrieved by the offence" as mentioned in Section 469(1)(c) of the Code of Criminal procedure.
8. The words "aggrieved person" are not defined in the Code of Criminal Procedure. Therefore, we have to give ordinary dictionary meaning to the words used. The normal meaning of aggrieved person is that the person who is affected by the act of the accused or by the offence committed by the accused. We may get some indication to this line of reasoning if we peruse some of the provisions of Code of Criminal Procedure.
Normally anybody can set the criminal law in motion. There are certain exceptions to this Rule. One such exception is found in Section 198 of the Code of Criminal Procedure. That Section provides that no Court shall take cognizance of an offence punishable under chapter 20 of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. Then in Sub-Section (2) we get indication that as far as offences under Section 497 and 498 of the Indian Penal Code are concerned, no other person shall be deemed to be an "aggrieved person" except the husband of the woman.
Similarly, under Section 177 of the Code of Criminal Procedure it is provided that no Court shall take cognizance of defamation except upon the complaint made by some aggrieved person.
It is, therefore, clear that the aggrieved person must be a person, who is directly affected by the offence committed by the accused. In the case of defamation, the person defamed is the aggrieved person. In the case of the offence of bigamy by the husband, the wife is the aggrieved person. The learned Counsel for the Petitioners also invited my attention to the case reported in 1978(1) Cri. L. J. 116 Madras High Court ( Sulochana Vs. State of Registrar of Chits, Madras). That was a case where the Registrar of Chits had filed a complaint alleging that the accused is running a chit fund without registering herself under the Tamil Nadu Chit Funds Act. The complaint was filed beyond the period of limitation. But the Registrar filed the complaint who had come to know of the offence only recently. The question was whether the Registrar can be brought within the meaning of "aggrieved person" which finds a place in Section 469 of the Code of Criminal Procedure. It was held that the aggrieved person means a person who is personally affected by the act of the accused and the Registrar cannot be said to be person who is personally affected by the Act of the accused.
The above decision was cited and followed by a learned Single Judge of this Court in 1986 Cri. L. J. 1218 (Bombay High Court) (Navinchandra Gandhi Vs. Pushpasen Kapadia) where the same view is taken that aggrieved person is a person who is personally affected by the act of the accused.
In the present case, the Inspector cannot be said to be a person who is affected by the act of the accused. Hence it cannot be stated that the Inspector is an aggrieved person and that he filed a complaint after he came to know the offence in 1987.
The Government has framed Rules under the Insecticides Act, 1968 which is called Insecticides Rules 1971.
Rule 28 provides for the duties of Inspectors under the Act. It provides that it shall be the duty of any inspector authorised to inspect the place of manufacture of insecticides -
(i) to Inspect not less that twice a year all premises licensed for the manufacture of insecticides within the area of his jurisdiction and to satisfy himself that the conditions of the licence and the provisions of the Act or the rules made thereunder are being observed.
Therefore, the law provides that it is the duty of the Inspector to make periodical inspection every year and that too minimum twice a year. if during the course of that periodical inspection every year he comes to know of any defects, he has to report the matter and then prosecution can be launched. Inspector cannot sit at home or sit in his office for 10 years and then make inspection on one fine morning and then launch the prosecution for alleged offence committed about 8 or 10 years back. That cannot be intendment of the law. The intendment of the law is that there should be periodical inspection of not less than twice a year. If in the present case if the Inspector had visited the Petitioner's premises in 1982, he could have noticed the alleged offence and he could have filed the complaint within three years. Similarly, if he would have noticed the alleged offence if he had inspected the premises in 1983, 1984 and 1985; he cannot make one visit in 1987 and then file a complaint in 1989 for alleged offences in 1982, 1983, 1984 and 1985. If the Inspector had made periodical inspection, he could have filed complaint for the said alleged offences well within the period of limitation. That is why the Legislature has imposed a duty of periodical inspection on the inspector under Rule 28.
10. It is, therefore, seen that the prosecution launched in this case is hopelessly barred by limitation. There is undue unexplained and inordinate delay in filing the complaint. No explanation is forthcoming as to why the annual inspection was not done in these years. No explanation is coming on the question of delay except stating that during inspection of 1987 complainant came to know of the alleged offence. Even then he has taken two years to file the complaint in 1989. There is no prayer in the complaint for condonation of delay also. When there is no explanation much less satisfactory explanation, there is no question of condonation of delay at all.
Having regard to the facts and circumstances of the case I am of the opinion that the complaint in this case is hopelessly barred by limitation and therefore, the criminal proceedings are liable to be quashed.