Criminal Application [APL] No.360 of 2011

4th October, 2017.

Petitioner Counsel: Mr. A.A. NAIK
Respondent Counsel: Mr. R.S. NAYAK

Cases Cited:
Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector & another, (2011) 1 SCC 176 [Para 4,10]
GHCL Employees Stock Option Trust Vs. India Infoline Ltd., 2013 ALL MR (Cri) 4423 (S.C.)=(2013) 4 SCC 505 [Para 4]
Santanu Jagatbandhu Sinha & another Vs. State of Mharashtra, 2007 ALL MR (Cri) 3050=2007 (5) AIR Bom 740 [Para 4]
Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., 2012 ALL SCR 1424=(2012) 5 SCC 661 [Para 4,9]

JUDGMENT

JUDGMENT :- This application has been filed under Section 482 of the Criminal Procedure Code, 1973 [for short, "the Code"], challenging the order dated 3rd June, 2011 by which the learned Judicial Magistrate First Class, Court No.7, has issued process against the applicants herein for the offences punishable under Sections 58 and 38-H of the Wildlife (Protection) Act, 1972 [for short, "the said Act"].

2. The Assistant Conservator of Forests [Wildlife] on 3rd June, 2011 filed a Complaint under provisions of Sections 39, 48-A, 58 and 38-H of the said Act read with Rule 3 of the Recognition of Zoo Rules, 1992. In this Complaint, it was stated that on 5th December 1985 permission was granted to the Secretary of Sindhu Education Society, Jaripatka, to keep specified animals in its premises. Pursuant to this permission, the Society procured those animals and informed the concerned Authorities on 16th March, 1985. In the complaint, it was stated that the said animals were transported from Mumbai to Nagpur without permission, resulting in breach of Section 48-A of the said Act. Similarly, though the number of monkeys had increased due to breeding, a declaration in that regard was not given, resulting in breach of Section 39 of the said Act. Further, by recovering fees from children, a zoo was being run without obtaining necessary permission. As the Society was running Mahatma Gandhi High School, the entire body of Executive Committee was responsible. Hence, according to the complaint, the applicants were liable for being punished under Section 51 of the said Act.

3. The learned Judicial Magistrate, First Class, issued process against the present applicants for the offences punishable under Sections 58 and 38-H of the said Act. Being aggrieved, the applicants have approached this Court challenging the said order and also for having the said complaint quashed.

4. Shri A.A. Naik, learned counsel for the applicants, in support of the application, made the following submissions:-

[a] The learned Magistrate could not have issued process under Section 58 of the said Act in absence of any specific allegations as to the role of each office-bearer of the Society. It was submitted that as per the Explanation to Section 58, an association of individuals would also mean a "Company" and hence specific averments against such office-bearer were necessary. Referring to paragraph 7 of the complaint, it was submitted that it had been vaguely averred that all members of the Committee were responsible for having committed the offence. In support of this submission, the learned counsel relied on the decisions in [1] Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector & another [(2011) 1 SCC 176], [2] GHCL Employees Stock Option Trust Vs. India Infoline Ltd. [(2013) 4 SCC 505] : [2013 ALL MR (Cri) 4423 (S.C.)], and [3] Santanu Jagatbandhu Sinha & another Vs. State of Mharashtra [2007 (5) AIR Bom 740] : [2007 ALL MR (Cri) 3050].

[b] The offence being alleged to have been committed under Section 58 of the said Act and process having been issued in that regard, it was necessary to array the Society [Company] as an accused. The Complaint as filed was only against the office-bearers of the Committee and the Company was not impleaded as an accused. As the offence was allegedly committed by a Company, process could not have been issued in absence of the Company being arrayed as an accused. For said purpose, the learned counsel relied on the decision in Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd. [(2012) 5 SCC 661] : [2012 ALL SCR 1424].

[c] That, as per provisions of Section 38-H of the said Act, no zoo could be operated without being recognized by the competent Authority. Further, as per provisions of Section 2 (39) of the said Act, the place where the animals were kept could not be said to be a zoo as the animals were not kept for exhibition to the public. Hence, provisions of Section 38-H of the said Act were not attracted.

[d] The complaint was filed beyond the period of limitation, inasmuch as the alleged breach was with regard to the permission which was granted in the year 1985 and the subsequent permission granted in the year 1995 to release seven monkeys in the jungle. According to the learned counsel, as the offence was punishable with imprisonment for a period upto three years, the complaint was barred by limitation under Section 468 (c) of the Criminal Procedure Code, 1973. It was, thus, submitted that without considering these material aspects, the learned Magistrate issued process. Permitting the present proceedings to continue would result in abuse of the process of law resulting in unnecessary prosecution of the applicants and hence it was necessary to quash the same.

5. Shri R. S. Nayak, learned Additional Public Prosecutor for the respondent no.1, supported the impugned order issuing process. According to him, as the Society claimed that it was registered under the Maharashtra Co-operative Societies Act, 1961, and the Maharashtra Public Trusts Act, 1951, it was not a Company for the purposes of Section 58 of the said Act. In any event, it was submitted that necessary averments were made in paragraph 7 of the complaint and, therefore, process was rightly issued for the offence having been committed by the office-bearers.

In so far as offence under Section 38-H of the said Act is concerned, it was submitted that it would be necessary to record evidence in order to establish as to whether the animals were being displayed by way of exhibition to public. As the students and their parents were permitted to view the animals, the establishment of the applicants was a zoo and, therefore, provisions of Section 38-H of the said Act were attracted. There was no permission granted for running the zoo.

The complaint was filed within limitation in view of the fact that the inspection had been carried out on 9th January, 2011 and after noticing various breaches, the complaint was filed on 3rd June, 2011. It was, thus, submitted that the learned Magistrate rightly took cognizance of the complaint and issued process against the applicants.

6. Though the respondent no.2 was permitted to intervene in the proceedings, there was no appearance on his behalf on 3rd October, 2017. Today also, there is no appearance on his behalf.

7. With the assistance of the learned counsel for the parties, I have perused the material placed on record and I have given due consideration to the respective submissions.

8. Pursuant to the complaint filed on behalf of the respondent no.1, the learned Magistrate issued process under Sections 58 and 38- H of the said Act. Section 58 of the said Act refers to offences by Companies and where such offence is committed by a Company, every person, who, at the time of offence, was in charge and was responsible to the Company for the conduct of its business as well as the Company would be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Explanation to Section 58 refers to the expression "Company" to mean any body corporate and includes a firm or other association of individuals. The process having been issued under Section 58 of the said Act, it will have to be examined whether the legal requirements that are necessary to be complied with while proceeding against a Company for commission of an offence have been met. Section 58 (1) of the said Act reads thus:-

"58. Offences by companies.- (1) Where an offence against this Act has been committed by a company, every person who at the time the offence was committed was in charge of and 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 accordingly.

Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence."

Explanation (a) to the said Section reads thus:-

"Explanation.- For the purposes of this section,-

(a) "company" means any body corporate and includes a firm or other association of individuals; ..."

9. The aforesaid provisions are in pari materia with the provisions of Section 141 (1) of the Negotiable Instruments Act, 1881. In Aneeta Hada [2012 ALL SCR 1424] [supra], the Honourable Supreme Court while considering the said provisions has held that when the Company can be prosecuted, only then can the persons mentioned in the other categories be held vicariously liable. In pargraphs 58 and 59 of the judgment, it was observed thus:

"58 ...................we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. ........"

Proceedings therein were quashed on the ground that the same were initiated against the Directors and in absence of the Company being arrayed as an accused. Similar position arises in the case in hand, inasmuch as the accused are merely stated to be members of the Executive Committee and the "Company" has not been arrayed as a accused. The complaint having been filed alleging offence committed by the Company and process having been issued under Section 58 of the said Act, absence of the Company as an accused is fatal to the complaint itself.

10. In Pepsico India Holdings Pvt. Ltd. [supra], it was held that in a complaint against a Company and its Directors, the complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management or whether they were responsible to the Company for the conduct of its business. A mere statement that a person was a Director of the Company against whom allegations were made was not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company.

The aforesaid legal position does not admit of any doubt that it has to be specifically averred in the complaint itself as to the role of the persons accused so as to hold them liable. Perusal of the complaint and especially paragraph 7 thereof indicates that what has been averred is that the Society in question was running Mahatma Gandhi High School and, therefore, as per the bye-laws of co-operative societies, the entire Manging Committee was responsible for the illegal acts. These are the only averments made in the complaint. The same, therefore, fall short of the averments that are required to be made as per the aforesaid law laid down by the Honourable Supreme Court.

11. In so far as the challenge to the issuance of process with regard to offence under Section 38-H of the said Act is concerned, I find that it is not necessary to dwell much on this aspect as the complaint itself has been found to be defective in absence of the Company being arrayed as an accused. However, I find that the expression "zoo" has been defined under Section 2 (39) of the said Act and the question whether the captive animals were kept for exhibition to the public or not would be a matter to be considered on the basis of evidence on record. In other words, at this stage, a finding cannot be recorded that the provisions of Section 38-H of the said Act were not at all attracted on the ground that the animals were kept in the school for the benefit of the students. However, as the complaint itself has been found to be defective in the absence of the Company being arrayed as an accused, I do not find it necessary to record any finding with regard to the challenge to the issuance of process under Section 38H of the Act .

12. In so far as the challenge on the ground that the complaint was filed beyond the period of limitation is concerned, on perusal of the complaint it is seen that though necessary permissions had been sought and granted in the year 1985, the establishment was inspected on 9th January, 2011. After noticing certain breaches, the complaint came to be filed on 3rd June, 2011. The complaint is based on the inspection conducted on 9th January, 2011. The provisions of Section 469 of the Code permit the limitation to commence when the offence comes to the knowledge of such person or police officer. I, therefore, find that the complaint was lodged within the period of limitation as prescribed by Section 468 (2) (c) of the Code.

13. Thus, in view of the aforesaid discussion, I find that the applicants have made out a case for quashing the complaint. Permitting the same to continue would amount to abuse of process of law. No fruitful purpose would be served in permitting the proceedings to continue especially when the "company" has not been arrayed as an accused and the offence in question has been stated to have been committed by the "company." Hence, the application is allowed in terms of Prayer Clause [B]. Accordingly, the proceedings in Summary Criminal Case No. 13392 of 2011 stand quashed.

14. Application is allowed in aforesaid terms. No costs.

Application allowed.