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Kamal Kumar Kothari vs State Of Tripura on 11 February, 2019

HIGH COURT OF TRIPURA
AGARTALA

Crl. Petn. 58/2018

1. Kamal Kumar Kothari
Son of Late Jhanwarlal Kothari,
Resident of 10, Canning Street, 3rd Floor,
Police Station Hare Street, Kolkata-700001,
West Bengal.

2. Smt. Sunita Kothari
Wife of Shri kamal Kumar Kothari,
Resident of 10, Canning Street, 3rd Floor,
Police Station Hare Street, Kolkata-700001,
West Bengal.

3. Shri Dharmendra Kothari,
Son of Late Jhanwarlal Kothari,
Resident of 18, Deshapriya park Road,
Ground Floor + 1st Floor, Kolkata-700026,
West Bengal.

4. Shri Dipak Rudra
Son of Padimini Bhushan Rudra,
Resident of CL-129, Section -II, Salt Lake City,
Kolkata-700091, West Bengal.

—-Appellant (s)
Versus

1. State of Tripura
Represented by Secretary, Department of Home,
Government of Tripura, New Capital Complex, Agartala,
West Tripura-PIN-799006.

2. Joydeep Roy Burman
Son of Samir Ranjan Roy Barman
Residing at 38, Akhaura Road, Agartala, West Tripura,
PIN-799001.
—–Respondent(s)

For petitioner(s) : Mr. M Mukherjee, Sr. Adv.
Mr. S. Lodh, Adv.
For Respondent(s) : Mr. PK Biswas, Sr. Adv.
Mr. A Roy Barman, Addl. PP
Mr. P Majumdar, Adv.
Date of pronouncement : 11.02.2019
Whether fit for reporting : YES
Page 2 of 30

HON’BLE MR. JUSTICE ARINDAM LODH

Judgment Order

The present revisional application is filed by the

petitioners under Section 482 CrPC for exercising the inherent

power of this Court wherein the legality, propriety and correctness

of the order dated 06.08.2018 passed by the learned Addl.

Sessions Judge (Court No.5), Agartala, West Tripura in connection

with Criminal Revision No. 13/2018 arising out of case No. PRC

239/2010 thereby affirming the order dated 11.06.2018 passed by

the learned Chief Judicial Magistrate, West Tripura, Agartala

wherein the charges were framed against the petitioners under

Section 120B/406/420/109 of the IPC.

2. Facts

in a nutshell:

The present petitioners have been arrayed as accused in

connection with PRC 239/2010 pending before the learned CJM,

West Tripura which corresponds to West Agartala PS case No.

102/2010 dated 13.03.2010 for being the Directors of a Company

named and styled as M/S Guinness Securities Limited, (hereinafter

referred to as ‘GSL’), a company incorporated under the provisions

of the Companies Act, 1956 having its corporate office at Guinness

House, 18, Deshapriya Park Road, Calcutta, 700026.

3. On perusal of the order dated 06.08.2018, I find that

one Joydeep Roy Barman lodged as FIR with the Officer-In-Charge

of the West Agartala Police Station on 13.03.2010 alleging inter

alia, that in the month of November, 2008 one Vibekananda Modak
Page 3 of 30

representing himself as an agent of GSL approached him with a

proposal that if he invests in shares through GSL, then he would

ensure that the informant would get handsome returns. Upon his

assurance, the informant Sri Roy Barman investing a sum of

Rs.33,00,000/- (Thirty Three lakhs) through shares in GSL. Since

the informant, i.e. the respondent No.2 was not informed about the

details of transactions in his account he visited the office of GSL at

Kolkata wherein he was informed that his account was in debit to

the tune of Rs.36,00,000/- (Thirty Six Lakhs). The respondent No.2

held a meeting with the petitioner Nos. 1 2 and one Dipak

Parekh, Prabir Chatterjee and Babulal Nolkha were the persons in

charge and responsible for the day to day affairs of the GSL.

4. It has further been alleged that the said Vibekananda

Modak in collusion with the other persons from the inception of the

transaction, had made false and fraudulent representations, and

induced him to part with substantial sums of money and thereby

cheated him to the tune of Rs.36,00,000/- (Thirty Six Lakhs).

5. The complaint filed by the informant Joydeep Roy

Barman, being registered with the police, investigation was

conducted and after being satisfied prima facie, the investigating

agency submitted their report in final form vide charge sheet No.

44/2015 dated 26.06.2015 under Sections 419/ 420/ 120B/ 109/

406 of IPC against the petitioners.

6. After taking cognizance, the learned Magistrate was

pleased to issue summons against the petitioners. Subsequently,

the petitioners preferred an application under Section 482 of the
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CrPC before this Court praying therein for quashing the proceedings

impugned in the petition. The said application was registered as

Crl. Pet. 05/2016. It was disposed of vide order dated 02.02.2016

in the following terms:

“Crl. Pet. 05 of 2016

BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Present:

For the petitioners : Mr. K. Agarwal, Sr. Adv.
Mr. K Roy, Adv.
Mr. US Singha, Adv.
For the respondents : Mr. A Ghosh, PP.

02.02.2016

After hearing the matter for sometime, I am of the view that as
far as this petition is concerned no relief can be granted to the
petitioners to quash the criminal proceedings against them at this
stage. However, liberty is reserved to the petitioners to approach
the learned trial Court for the following reliefs:

(a) The petitioners may approach the learned trial Court
praying for their personal exemption in the case and the trial Court
shall keeping in view the age etc. of the petitioners grant them
exemption from personal appearance subject to their appearing
through counsel. However, it shall be made clear that the
petitioners will have to appear on every date when evidence is to
be recorded or when their presence is otherwise necessary for
framing charge etc.

(b) The petitioners shall also be at liberty to approach the
trial Court to argue the case on merits in accordance with law.

Petition is disposed of.

Sd/- Illegible
DEEPAK GUPTA
Hon’ble Chief Justice.”

7. Ultimately, on 11.06.2018, the learned CJM, West

Tripura, Agartala had framed charges against the petitioners to

which all of them pleaded not guilty. However, on 31st May, 2018

when the case was fixed for discussion of charge, the petitioners

had submitted an application under Section 239 of the CrPC

praying for discharging the petitioners from the liability of the case

under the given facts and circumstances of the case as narrated in

the petition itself.

Page 5 of 30

8. Being aggrieved by and dis-satisfied with the order of

framing of charge, the petitioners had preferred a revision

application which was registered as Criminal Revision No. 13/2018

arising out of PRC(WP)239/2010.

9. The learned Addl. Sessions Judge, after hearing the

parties and considering the materials on record being not found any

illegality or impropriety in the impugned orders of the learned CJM,

West Tripura, Agartala, framing charges against the revision

petitioners rejected the revision petition by his order dated

06.08.2018.

10. The said order dated 06.08.2018 passed by the learned

Addl. Sessions Judge, West Tripura, Agartala affirming the charges

framed by the learned CJM, West Tripura, Agartala by order dated

11.06.2018 is under challenge before this Court wherein the

revision petitioners have pleaded for exercising of the inherent

power of this Court under Section 482 of the CrPC.

11. In course of argument, Mr. M Mukherjee, learned senior

counsel assisted by Mr. S Lodh, learned counsel appearing for the

petitioners has urged four points in his quest to quash the charges

framed under Section 120B/406/420/109 of the IPC. These are:

i) Whether the earlier application under Section 482 of the CrPC
would be a bar in maintainability of the present application under
Section 482 of the CrPC, even though the Hon’ble Court had
rejected the earlier application bearing No. Crl. Pet. 05/2016
praying for quashing the entire proceeding?

Judgment relied on :-

a. Superintendent and Remembrancer of Legal Affairs,
West Bengal Vs. Mohan Singh Ors, (1975) 3 SCC 706

b. SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla Anr.,
(2007) 4 SCC 70
Page 6 of 30

ii) Whether the application under Section 482 CrPC is maintainable
after dismissal of a revisional application by the Court of
Sessions?

Judgment relied on :-

a. Krishnan Anr. Vs. Krishnaveri anr., (1997) 4 SCC 241

b. Shakuntala Devi Ors. Vs. Chamru Mahto Anr., (2009) 3
SCC 310

iii) Whether the petitioners can be held vicariously liable for being
the members of the Board of Directors of a company under the
provisions of the Indian Penal Code when the company by itself
has not been made an accused in the case?

Judgment relied on :-

a. SK Alagh Vs. The State of UP Ors., (2008) 5 SCC 662

b. Sharad Kumar Sanghi Vs. Sangita Rane, (2015) 12 SCC
781

iv) Whether the learned Judge committed error by affirming the
order of the learned Magistrate framing charge against the
petitioners in violation of the law laid down?

Judgment relied on :-

a. Union of India Vs. Prafulla Kumar Samal Anr., (1979) 3
SCC 4

b. Satish Mehra Vs. State NCT of Delhi Anr., (2012) 13
SCC 614

c. Vinay Tyagi Vs. Irshad Ali @ Deepak Ors., (2013) 5
SCC 762.

12. While dealing with the issue (i) whether the second

application under Section 482 CrPC is maintainable after the earlier

one was rejected by this Court, Mr. Mukherjee, learned senior

counsel has submitted that it is trite law that every case has its

unique sets of facts and before we answer this question he has

mentioned certain dates, which according to him are relevant to

decide this issue.

13. On 13.03.2010, the FIR was lodged under Section

420/406/120B/109 IPC for offence starting from 01.12.2008 and

the investigation continued for a period of 5 years and ultimately in

June, 2015 charge sheet was filed and the learned court took

cognizance of the offences on 16.09.2015. Thereafter, the
Page 7 of 30

petitioners moved and application under Section 482 CrPC praying

for quashing of the proceedings so far it related to them and this

Court by its judgment and order dated 02.02.2016 had rejected the

prayer for quashing of proceedings with the observations that, “the

petitioners may approach the learned trial Court praying for their

personal exemption in the case and the trial Court shall keeping in

view the age etc. of the petitioners grant them exemption from

personal appearance subject to their appearing through counsel.

However, it shall be made clear that the petitioners will have to

appear on every date when evidence is to be recorded or when

their presence is otherwise necessary for framing charge etc.” It

was further observed that the petitioners shall also be at liberty to

approach the learned trial court to argue the case on merits in

accordance with law.

14. According to learned senior counsel appearing for the

petitioners, the order dated 02.02.2016 itself makes it clear that

liberty was given to the present petitioners to agitate on merits

before the learned trial court, and on the strength of this order they

moved an application under Section 239 CrPC praying for discharge

of the petitioners. It is submitted that after copies were served to

them in terms of the provisions of Section 207 CrPC the learned

Magistrate by orders dated 31.05.2018 and 11.06.2018 was

pleased to reject the prayer for discharge of the petitioners and

framing of charges under the relevant provisions of law.

15. Being aggrieved by the orders passed by the learned

Magistrate, the petitioners preferred an application under Section
Page 8 of 30

397 read with Section 399 of CrPC before the Court of learned

Sessions Judge, Agartala, West Tripura and as stated above, the

learned Sessions Judge vide order dated 06.08.2018 had affirmed

the order of framing of charges.

16. Mr. PK Biswas, learned senior counsel assisted by Mr. P

Majumdar, learned counsel appearing for the respondent No.2-

defacto complainant, submits that the order dated 02.02.2016

passed by the High Court in the earlier revisional application is a

complete bar to the subsequent application, i.e. the present

application under Section 482 CrPC. According to learned senior

counsel, the order dated 02.02.2016 passed in Crl. Pet. 05/2016

has attained its finality with regard to the existence of prima facie

evidence against the accused persons and the said order cannot be

questioned by this Court and he prays for dismissal of the suit in

view of Section 362 CrPC.

17. At this juncture, I have meticulously perused the

judgment passed by the Apex Court in Superintendent and

Remembrancer of Legal Affairs, West Bengal (supra) where

the Supreme Court has held that the High Court has the power to

entertain a subsequent application under Section 482 CrPC in a

changed set of circumstances. Going through the facts of the

decision of Superintendent and Remembrancer of Legal

Affairs, West Bengal (supra) it reveals that the accused who

were the respondent Nos. 2 3 were charged by the Magistrate for

offence under Section 304A read with Section 109 IPC.
Page 9 of 30

18. The respondent No. 1 filed an application under Section

561A CrPC in the High Court for quashing the proceedings. The

High Court rejected the application on the ground that the question

of fact had yet to be ascertained and it was not desirable to

interfere with the proceedings at that stage. At para 2 of the said

judgment it is observed thus:

“………..The earlier application which was rejected by the High
Court was an application under Section 561A of the Code of
Criminal Procedure to quash the proceedings and the High Court
rejected it on the ground that the evidence was yet to be led and it
was not desirable to interfere with the proceeding at that stage.
But, thereafter, the criminal case dragged on for a period of about
one and a half years without any progress at all and it was in these
circumstances that respondents Nos. 1 and 2 were constrained to
make a fresh application to the High Court under Section 561A to
quash the proceeding. ……………..”

19. It was under that circumstance the Apex Court held

that:

“Section 561A preserves the inherent power of the High Court to
make such orders as it deems fit to prevent the abuse of the
process of the Court or to secure the ends of justice and the High
Court must, therefore, exercise its inherent powers having regard
to the situation prevailing at the particular point of time when its
inherent jurisdiction is sought to be invoked. The High Court was
in the circumstances entitled to entertain the subsequent
application of respondents Nos. 1 and 2 and consider whether on
the facts and circumstances then obtaining the continuance of the
proceeding against the respondents constituted an abuse of the
process of the Court or its quashing was necessary to secure the
ends of justice. The facts and circumstances obtaining at the time
of the subsequent application of respondents Nos. 1 and 2 were
clearly different from what they were at the time of the earlier
application of the first respondent because, despite the rejection
of the earlier application of the first respondent, the prosecution
had failed to make any progress in the criminal case even though
it was filed as far back as 1965 and the criminal case rested where
it was for a period of over one and half years. It was for this reason
that, despite the earlier order dated December 12, 1968, the High
Court proceeded to consider the subsequent application of
respondents Nos. 1 and 2 for the purpose of deciding whether it
should exercise its inherent jurisdiction under Section 561A. This
the High Court was perfectly entitled to do and we do not see any
jurisdictional infirmity in the order of the High Court. Even on the
merits, we find that the order of the High Court was justified as no
prima facie case appears to have been made out against
respondents Nos. 1 and 2.”

20. On a careful reading of the aforesaid observation of the

Supreme Court in Superintendent and Remembrancer of Legal
Page 10 of 30

Affairs, West Bengal (supra), I find factually it is quite

distinguishable with the facts and circumstances of the present

case.

21. In the case in hand, the petitioners at that time of

framing of charge filed an application under Section 239 of the

CrPC which on rejection, the learned Magistrate had framed the

charges after being prima facie satisfied that the police report and

the documents relied upon by the investigating agency and that

also was affirmed by the Addl. Sessions Judge, as aforestated.

22. Here, immediately after framing of charges, the

petitioners approached the revisional court but in the case of

Superintendent and Remembrancer of Legal Affairs, West

Bengal (supra) the Supreme Court has justified the entertaining of

the subsequent application as the High Court entertained it on the

ground that the criminal case was dragged on for a period of about

one and half years without any progress at all and it was in those

circumstances the Supreme Court held that the High Court had

perfectly exercised its inherent jurisdiction, which also found no

prim facie case in the case of Superintendent and

Remembrancer of Legal Affairs, West Bengal (supra). So,

according to me, the facts of the present case differ from the facts

and circumstances of the case stated supra.

23. It is worthy to mention, in the present case, the charge

was only framed on 11.06.2018 and immediately thereafter, it was

challenged by the petitioners before the revisional court and the

revisional court without any sort of delay disposed of the petition
Page 11 of 30

rejecting the same vide order dated 06.08.2018 which is again

challenged before this Court under Section 482 CrPC.

24. Again, the case of SMS Pharmaceuticals Ltd., (supra)

relates to a case under the Negotiable Instruments Act, 1881

where the second application was entertained by the High Court

because in the previous order in the proceedings under Section 482

CrPC the High Court gave liberty to the accused to agitate the

matter once again and the Supreme Court held that the accused

merely took recourse thereto. Further, in the said decision, the

High Court did not find the statutory ingredient of Section 138 of

the NI Act. It was further held by the High Court that the allegation

leveled against the accused person were vague and indefinite and

did not satisfy the requirement of law as contained in Section 141

of the NI Act and the High Court held that no case had been made

out for issuance of any summon against the accused.

25. Now, if we carefully read the order dated 02.02.2016

passed in Crl. Pet. 05/2016 I find that the learned Single Judge

(Hon’ble the Chief Justice, Deepak Gupta, as he then was) in his

order has categorically stated,

“I am of the view that as far as this petition is concerned no
relief can be granted to the petitioners to quash the criminal
proceedings against them at this stage. However, liberty is
reserved to the petitioners to approach the learned trial Court for
the following reliefs”.

26. If I read this observation in two parts then one part is

very specific that as far as the criminal petition 05/2016 is

concerned no relief can be granted to the petitioners to quash the

proceedings against the petitioners; and in the second part, liberty
Page 12 of 30

is given to the petitioners to approach the learned trial court for the

following reliefs:

“(a) The petitioners may approach the learned trial Court praying
for their personal exemption in the case and the trial Court shall
keeping in view the age etc. of the petitioners grant them
exemption from personal appearance subject to their appearing
through counsel. However, it shall be made clear that the
petitioners will have to appear on every date when evidence is to
be recorded or when their presence is otherwise necessary for
framing charge etc.

(b) The petitioners shall also be at liberty to approach the trial
Court to argue the case on merits in accordance with law.”

27. In my considered view, His Lordship has rejected the

prayer for quashing the criminal proceedings after being satisfied

with the prima facie materials on record against the accused

persons. Secondly, liberty was granted for a limited purpose.

Hon’ble the Chief Justice was very specific that the petitioners were

given liberty to approach the learned trial court praying for granting

exemption from personal appearance and that was also subject to

their appearing through counsel. It was further clarified that they

would have to appear on every date when evidence was to be

recorded or when their presence was otherwise necessary for

framing charge, etc. The petitioners were only given liberty to

approach the trial court to argue the case on merits in accordance

with law. These directions, according to me, clearly restrict the

petitioners to enlarge the scope of further interference and to

revisit the merits of police report or to say, the charge.

28. Here, it would be apposite to refer a decision in Kalyan

Chandra Sarkar Vs. Rajesh Ranjan Anr., (2005) 2 SCC 42

wherein the Apex Court held as under:

“19. The principles of res judicata and such
analogous principles although are not applicable in a
criminal proceeding, still the courts are bound by the
Page 13 of 30

doctrine of judicial discipline having regard to the
hierarchical system prevailing of our country. The
findings of a higher court or a coordinate Bench must
receive serious consideration at the hands of the court
entertaining a bail application at a later stage when the
same had been rejected earlier. In such an event, the
courts must give due weight to the grounds which
weighed with the former or higher court in rejecting the
bail application. Ordinarily, the issues which had been
canvassed earlier would not be permitted to be
reagitated on the same grounds, as the same would
lead to a speculation and uncertainty in the
administration of justice and may lead to forum
hunting.”

29. A criminal proceeding includes the framing of charge or

charges. The framing of charge, in my opinion, on the pretext of

the present case, should not be said to be a case of changing

circumstances, and as such, the circumstances of the case of

Superintendent and Remembrancer of Legal Affairs, West

Bengal (supra) and SMS Pharmaceuticals Ltd. (supra) are quite

distinguishable to the facts of the present case.

30. Furthermore, quashing of charge means the quashing of

the entire proceedings which was also rejected by the learned

Single Judge in the earlier application filed by the petitioners as

aforestated. Liberty given to the petitioners to argue the case on

merits in accordance with law, according to me, means the

petitioners were given the liberty to contest and face trial on merits

in accordance with law.

31. The direction of Hon’ble the Chief Justice (Sri Deepak

Gupta, as he then was) in the previous application that the

petitioners would have to appear on every day when evidence is to

be recorded or when their presence was otherwise necessary for

framing charge, etc. is quite indicative that the petitioners would

have to face trial and participate in day to day proceedings,
Page 14 of 30

recording of evidence and other parts of the proceedings in terms

of the Code of Criminal Procedure, which, needless to say, are the

subsequent parts after framing of charges in a criminal proceeding.

32. In the instant case, the petitioners did not agitate their

grievance before the submission of the police report in final form

vide charge sheet No. 44/2015 dated 26.06.2015 and when the

order was challenged before the High Court by way of filing Crl.

Pet. 05/2016 the entire case records was before the learned Single

Judge when the prayer for quashing of criminal proceeding was

rejected and further, no challenge was also made by way of filing

the appropriate petition before this Court for quashing of the

criminal proceedings till the framing of charge by the learned

Magistrate.

33. I find no changing circumstances in the proceedings of

the present case forcing the petitioners to approach this Court

praying relief for quashing the proceeding exercising its inherent

power under Section 482 of CrPC.

34. While dealing with issue No. (ii), Whether the application

under Section 482 CrPC is maintainable after dismissal of a

revisional application by the Court of Sessions, I have meticulously

gone through the judgment relied upon by the learned senior

counsel appearing for the petitioner. In Krishnan Anr. Vs.

Krishnaveri Anr. (supra) and Shakuntala Devi Ors. (supra)

wherein the Supreme Court has held that “the object of the

introduction of Sub- section (3) in Section 397 was to prevent a

second revision so as to avoid frivolous litigation, but, at the same
Page 15 of 30

time, the doors to the High Court to a litigant who had lost before

the Sessions Judge was not completely closed and in special cases

the bar under Section 397(3) could be lifted. In other words, the

power of the High Court to entertain a petition under Section 482,

was not subject to the prohibition under Sub-section (3) of Section

397 of the Code, and was capable of being invoked in appropriate

cases”. The contention that there was a complete bar under Section

397 (3) debarring the High Court from entertaining an application

under Section 482 thereof was rejected.

35. The Supreme Court in Kailash Verma vs Punjab State

Civil Supplies Corporation Ors., (2005) 2 SCC 571 referring

to para 14 of Krishanan Anr. (Supra) held SCC.P574. para 4):

“………though the revision before the High Court under Sub-section
(1) of Section 397 is prohibited Sub-section 3 thereof, inherent
power of the High Court is still available under Section 482 of the
Code and as it is paramount power of continuous superintendence
of the High Court under Section 483, the High Court is justified in
interfering with the order leading to miscarriage of justice and in
setting aside the order of the courts below.”

36. While dealing with the question of maintainability of a

second revision application the Supreme Court in Kailash Verma

(supra) at para 5 referring to the decision in V.C. Shukla Vs.

State, 1980 Suppl. SCC 92 has held :

“5. It may also be noticed that this Court in Rajathi v. C. Ganesan
said that the power under Section 482 of the Criminal Procedure
Code has to be exercised sparingly and such power shall not be
utilised as a substitute for second revision. Ordinarily, when a
revision has been barred under Section 397(3) of the Code, the
complainant or the accused cannot be allowed to take recourse to
revision before the High Court under Section 397(1) of the Criminal
Procedure Code as it is prohibited under Section 397(3) thereof.
However, the High Court can entertain a petition under Section 482
of the Criminal Procedure Code when there is serious miscarriage
of justice and abuse of the process of the court or when
mandatory provisions of law are not complied with and when the
High Court feels that the inherent jurisdiction is to be exercised to
correct the mistake committed by the revisional court.”

Page 16 of 30

37. Again, relying on the decision of State v. Navjot

Sandhu, (2003) 6 SCC 641 the Supreme Court in Kailash

Verma (supra) held: (SCC.p. 574, para 6)

“Section 482 of the Criminal Procedure Code starts with the words
‘Nothing in this Code’. Thus the inherent jurisdiction of the High
Court under Section 482 of the Criminal Procedure Code can be
exercised even when there is a bar under Section 397 or some
other provisions of the Criminal Procedure Code. However as is
set out in Satya Narayan Sharma case, [(2001) 8 SCC 607] this
power cannot be exercised if there is a statutory bar in some other
enactment. If the order assailed is purely of an interlocutory
character, which could be corrected in exercise of revisional
powers or appellate powers the High Court must refuse to exercise
its inherent power. The inherent power is to be used only in cases
where there is an abuse of the process of the court or where
interference is absolutely necessary for securing the ends of
justice.”

38. In Kailash Verma (supra) the Supreme Court had set

aside the judgment of the High Court on the ground that the

learned Magistrate as well as the learned Sessions Judge in revision

found that the accused in that case was entitled to be discharged in

the facts and circumstances of that case and the Supreme Court

held that the interference by the High Court discharging the

accused was not justified in exercising its inherent power under

Section 482 CrPC in the facts of that case.

39. I may gainfully refer to the decision of the Supreme

Court in Hamid Vs. Rashid @ Rasheed and Ors., (2008) 1 SCC

474 wherein it was opined:

“6. We are in agreement with the contention advanced on behalf of
the complainant appellant. Section 482 Cr.P.C. saves the inherent
powers of the High Court and its language is quite explicit when it
says that nothing in the Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under the Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends
of justice. A procedural Code, however exhaustive, cannot
expressly provide for all time to come against all the cases or
points that may possibly arise, and in order that justice may not
suffer, it is necessary that every court must in proper cases
exercise its inherent power for the ends of justice or for the
purpose of carrying out the other provisions of the Code. It is well
established principle that every Court has inherent power to act ex
debito justitiae to do that real and substantial justice for the
Page 17 of 30

administration of which alone it exists or to prevent abuse of the
process of the Court. …………..”

40. In Sunita Jain Vs. Pawan Kumar Jain Ors.,

(2008) 2 SCC 705 it is stated:

“In exercising its jurisdiction under Section 561-A the High Court
would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any party to
invoke the High Court’s inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the accusation made
against the accused would not be sustained.”

41. In State of Orissa Anr. v. Saroj Kumar Sahoo

[(2005) 13 SCC 540], this Court stated the law, thus

“11. As noted above, the powers possessed by the High Court
under Section 482 of the Cr.P.C. are very wide and the very
plenitude of the power requires great caution in its exercise. Court
must be careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The High Court being
the highest court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been
collected and produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course, no
hard and fast rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of quashing
the proceeding at any stage.

XXX XXX XXX

14. It is to be noted that the investigation was not complete and at
that stage it was impermissible for the High Court to look into
materials, the acceptability of which is essentially a matter for trial.
While exercising jurisdiction under Section 482 of the Cr.P.C., it is
not permissible for the Court to act as if it was a trial Court. Even
when charge is framed at that stage, the Court has to only prima
facie be satisfied about existence of sufficient ground for
proceeding against the accused. For that limited purpose, the
Court can evaluate material and documents on records but it
cannot appreciate evidence. The Court is not required to
appreciate evidence to conclude whether the materials produced
are sufficient or not for convicting the accused. In Chand Dhawan
(Smt.) v. Jawahar Lal and Ors. [(1992) 3 SCC 317], it was observed
that when the materials relied upon by a party are required to be
proved, no inference can be drawn on the basis of those materials
to conclude the complaint to be unacceptable. The Court should
not act on annexures to the petitions under Section 482 of the
Cr.P.C., which cannot be termed as evidence without being tested
and proved.”

42. After taking into consideration various decision, the

Supreme Court in the case of R Kalyani Vs. Janak C. Mehta
Page 18 of 30

Ors., (2009) 1 SCC 516 on the exercise of inherent power of High

Court under Section 482 CrPC held at para 9:

“9. Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in particular, a
First Information Report unless the allegations contained therein,
even if given face value and taken to be correct in their entirety,
disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very
exceptional circumstances, would not look to any document relied
upon by the defence.

(3) Such a power should be exercised very sparingly. If the
allegations made in the FIR disclose commission of an offence,
the court shall not go beyond the same and pass an order in
favour of the accused to hold absence of any mens rea or actus
reus.

(4) If the allegation discloses a civil dispute, the same by itself may
not be a ground to hold that the criminal proceedings should not
be allowed to continue.”

43. An excerpt from the complaint may be reproduced

hereinbelow for consideration of the facts of the present case and

judgments referred by the learned senior counsel for the petitioner:

“Being unable to contact the accused persons I was compelled
to visit Kolkata and went to the Branch Office of Guiness Securities
Ltd where I was informed that my account was in a debit to the tune
of Rupees thirty-six lacs.

Thereafter I went to Kolkata and a meeting was held with Kamal
Kumar Kothari, Deepak parakh, Prabir chatterjee, Babulal Nolkha
and Mrs Suneeta Kothari who are the persons in charge and
responsible for the day to day running of the business of the
Guiness Securities Ltd. and all the employees and representatives
of Guiness act in terms of the directives given by them. During such
meeting all of them admitted that certain unauthorized transactions
were made in my account and sought for some time to reconcile the
issue. Mr. Kamal Kumar Kothari personally assured me that he
would look into the matter but till date there is no response from
Kamal Kumar Kothari or any of them and they are avoiding me in
some pretext or the other. In the reply of Guiness Securities Ltd. to
my Advocate’s letter they have denied to acknowledge me as their
client. Little did I realize that this stance of Kamal Kumar Kothari,
Deepak parakh, Prabir Chatterjee, Babulal Nolkha and Mrs Sunetha
Kothari was a motivated one in order to prevent me from
approaching the Court of law.

It is there for clear that Vivekananda Modak in collusion and
conspiracy with Kamal Kumar Kothari, Deepak parakh, Prabir
Chatterjee, Babulal Nolkha and Mrs Sunetha Kothari from the
inception of the transaction made false and fraudulent
representations and induced myself to part with substantital sums
of money and thereby cheated me to the tune of Rupees Thirty six
lacs.”

Page 19 of 30

44. In the police report, i.e. in the charge sheet submitted

by the investigating agency some of the findings of the agency may

be reproduced, which are as under:

“That, the Guniess Securities Ltd. replied that SMS service in
share related business was introduced on 05/03/2010 by National
Securities Depository Limited (NSDL) and the last transaction by
client (complainant) was on 28/07/2009. (as per seized document
vide sl. No. 3 of the seizure list dated 08/04/2011). But as per further
seized document found the SMS service in share related business
was introduced on 01/06/2009 by NSDL and the last transaction by
client (complainant) was made on 28/07/2009. So Guiness Securities
Ltd. gave the false information to the Investigating Agency, only to
shield their ill motive. (as per seized document vide Sl. No. 11 of
seizure list dated 15/11/2014).

That, as per seized document of Sl. No. 8 of seizure list dated
19/04/2012 namely “Contract Notes cum Bill of Joydeep Roy Barman
w.e.f. 03/12/2008 to 28/07/2009 total 2030 pages”, the entire amount
of the complainant was lost in share business participated through
the company namely Guiness Securities ltd. which was done in
frequent manner without the consent of the complainant and
without taking into consideration of the interest of the complainant.

That, subsequently the complt. brought to the matter to
National Stock Exchange of India Ltd. (NSEIL) filed arbitration case
against Guiness Securities ltd. in writing as per Arbitration and
Conciliation Act 1996. Accordingly, on 23/09/2010 the case went to
National Stock Exchange of India ltd. Committee for arbitration and
suggested to settle the matter by compensating the Complainant
with 25% of the total deposited amount. This is clearly indicates
adoption of malpractice by the accused firm and the accused
persons in trading of shares of the complainant. But the
complainant refused to settle the matter and file the FIR in P.S. (as
per seized document vide Sl. No.4 of seizure list dated 27/09/2011).

That, as per seized document of Sl. No.3 of seizure list dated
08/04/2011 namely “Letter of Authority” was given to Subir
Chakraborty by the Complainant Joydeep Roy Barman for operation
of Share Trading Account (Demat) with his consent. But the
accused firm and the accused persons operated the demat account
without the consent of the complainant for their gain.

That, Guiness Securities Ltd. violating the terms and
conditions of national Stock Exchange of India ltd. (NSEIL) as
described in the seized document dated 08/04/2011. In the member
client Agreement Form. (as per seized document vide Sl. No. 3 of
seizure list dated 08/04/2011).

That, as per Financial Statement (Account Code:03TYJ508) vide
seized document/CD of Sl. No.6 of seizure List dated 07/01/2012,
down fall in the trading business was passed on, since 17th
December, 2008 onwards. But as per company’s opinion they
dispatched Balance Confirmation letter since 5th January, 2009
onwards by way of following dates on 05/01/2009, 12/01/2009
10/07/2009. Moreover, we asked for official correspondence as a
proof of evidence to dispatch the balance confirmation letter to the
client. In response, GSL handover a document (seized document of
Sl. No.19 of seizure list dated 08/06/2015) in which it was mentioned
that the Balance Confirmation Letter was sent on 05/01/2009),
12/01/2009 10/07/2009 to the client Joydeep Roy Barman along
with other 4/5 clients Balance Confirmation Letter through
“Certificate of Posting” (Indian Postal Service) (now discontinued
vide Circular Order G. Posts No.2-4/2008-PO dated 23/02/2011). In
this regard, I have examined Shri Radheshyam Saha (59) S/o Lt.

Harendra Kr. Saha of South Indranagar, PS-East Agt. I/C Post
Master, Public Relation Inspector of Agartala Head Post Office,
Agartala, West Tripura and Smt. Manjushree Roy Chowdhury (59)
w/o Dr. Bidya Sankar Roy Chowdhury of Dhaleswar-2, PS East Agt.,
Page 20 of 30

I/C, Sub Record Officer, RMS, CR Road, Agartala-1, West Tripura
and recorded their statements U/S 161 CrPC. They have examined
the seized documents vide Sl. No. 19 of the seizure list dated
08/06/2015 and said that in a Certificate of Posting, records of GSL,
total 5/6 letters were sent to the different clients, but postage of
Rs.6/- was posted in the receipt register letter as well as 2/3 round
seals were used which was not correct. As per rules for 3 (three)
letters, in Certificate of Posting postage stamp of Rs.5/- was
supposed to be affixed on the Receipt Register letter. In a case of
5/6 letters, the postage stamp of Rs.10/- was supposed to be affixed
on the Receipt Register letter. But postage of Rs.6/- was affixed
which is not correct. Therefore, the documents handed over to CID
are not genuine document.

Xxxxxxxxxxxxxxxxxxxxxxx

But Guiness Securities Ltd. did not inform the complt. (their
client) time to time about the share trading on behalf complt. All
transaction made by the broking house (Guiness Securites Ltd.) are
in gross violation of the SEBI, CDSL, NSDL, BSE NSE rules which
clearly postulate that, it is obligatory on the part of the broking
house (Guiness Securities Ltd.) to inform their client (Complt.) on
whose behalf, they are transacting regarding each transaction
appertaining to the customers’ accounts.

That, thus, it is clear that the money entrusted with the accused
persons were unlawfully and unauthorizedly invested without the
consent of the complainant and true and correct reflection of such
investment were never communicate to the complt. And as a result
he has suffered wrongful losses through such transactions and the
accused person gained wrongfully by way of earning commission
for repeated trading. The complt. Was always kept in dark regarding
the investment made on behalf of him. Wherever, the Compt.
Contacted with the staffs of Guiness Securities Ltd. they always
assured him that his money was safely invested.

That, initially the complt. is able to contact with officials of
Guiness Securities Ltd. and after some day later even the complt.
unable to contact with the officials of Guiness Securities Ltd. Being
unable to contact the officials of Guiness Securities Ltd. the complt
was compelled to visit the Branch Office of Guniess Securities Ltd.,
Deshapriya Park, Kolkata where he came to know that no amount
was available in the concerned account of the complainant.
Thereafter, a meeting was held with Kamal Kr. Kothari, Mrs. Suneeta
Kothari etc. who were the Board of Directors and Members of
Guiness Securities Ltd., Kolkata with the complt. but they failed to
give any redress to the complainant.

That, subsequently, the complt. brought to the matter to NSE in
writing. Accordingly on 23/09/2010 the case went to the National
Stock Exchange of India Ltd. Committee for arbitration case and
suggest for settle the matter by compensate the 25% of the total
deposited amount. But complainant refuses to settle the matter and
went to the court.

Under the above circumstances, a prima facie charge U/S
419/120(B)/406/420/109 IPC has been well established against the
FIR named a/p namely 1) Vivekananda Modak, (non official Agent)
s/o Lt. Benu Ranjan Modak C/o Manoranjan Modak of Shibnagar,
Masjid Road, PS East Agt, West Tripura permanent address :
Highland Park, 1925 Chak Garia, Cape Tower Flat No. 18C/2, 18th
Floor PS East Jadavpur, Kolkata-700094. West Bengal and U/S
120(B)/406/420/109 IPC has been well established against the a/p
namely 2) Subir Charkaborty (sub-Branch Manager, now resigned)
s/o Hemchandra Charkborty of P-116A, Sector-EA, Metropolitan
Housing Co-Operative Society Ltd., Kolkata-700105, South 24
Parganas, Near SBI Chingrighata Branch, PS Tilizala, West Bengal

3) Kamal Kumar Kothari (Managing Director) S/o Lt. Jhanwar Lal
Kothari of 10, Canning Street, 3rd Floor, Kolkata-700001, Post office
GPO, Ps-Hare Street, West Bengal, 4) smt. Sunita Kothari (Director,
now resigned) W/o Sri Kamal Kumar Kothari of do, 5) Dharmendra
Kothari (43) S/O Lt. Janwarlal Kothari, Director, Guniess Securities
Ltd., 18, Deshapriya Bark Road, Ground Floor + 1st Floor, Kolkata-
700026, West Bengal, 6) Dipak Rudra (75) S/o Padmini Bhushan
Page 21 of 30

Rudra, Director, Guiness Securities Limited, CL-129, Salt Lake City,
Kolkata-700091, West Bengal. The a/p sl. NO.3 to 6 were the board of
directors of the time of incident, i.e. from 01/12/2008 to 28/07/2009.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

In view of the evidences discussed under, I do hereby submit
charge sheet vide West Agt. P.S. C/S No. 44/15 date 26/06/2015 U/S
419/120(B)/406/420/109 IPC against the accused person namely, 1)
Vivekananda Modak, (non official Agent) s/o Lt. Benu Ranjan Modak
C/o Manoranjan Modak of Shibnagar, Masjid Road, PS East Agt,
West Tripura permanent address : Highland Park, 1925 Chak
Garia, Cape Tower Flat No. 18C/2, 18th Floor PS East Jadavpur,
Kolkata-700094, West Bengal and U/S 120(B)/406/420/109 IPC
against the a/p namely 2) Subir Charkaborty (sub-Branch Manager,
now resigned) s/o Hemchandra Charkborty of P-116A, Sector-EA,
Metropolitan Housing Co-Operative Society Ltd., Kolkata-700105,
South 24 Parganas, Near SBI Chingrighata Branch, PS Tilizala, West
Bengal 3) Kamal Kumar Kothari (Managing Director) S/o Lt. Jhanwar
Lal Kothari of 10, Canning Street, 3rd Floor, Kolkata-700001, Post
office GPO, Ps-Hare Street, West Bengal, 4) Smt. Sunita Kothari
(Director, now resigned) W/o Sri Kamal Kumar Kothari of do, 5)
Dharmendra Kothari (43) S/O Lt. Janwarlal Kothari, Director,
Guniess Securities Ltd., 18, Deshapriya Bark Road, Ground Floor +
1st Floor, Kolkata-700026, West Bengal, 6) Dipak Rudra (75) S/o
Padmini Bhushan Rudra, Director, Guiness Securities Limited, CL-
129, Salt Lake City, Kolkata-700091, West Bengal showing
absconding and accused persons to face trial in the open court of
law for justice. WPA may kindly be issued against the absconding
accused persons to bind down them for appearance before the Ld.
Court during trial. The witnesses noted in column No.13 in the
Charge Sheet may kindly be summoned who will prove the case, the
FIR named accused persons noted in Column No. 12 in the Charge
sheet may kindly be discharged for their liabilities of the case as FIR
named accused.”

45. After perusal, I am of the opinion that, here, the

accused person had full dominion over the property being

indisputably they were the Board of Directors. They denied that

Vivekananda was never their agent. If that be so, then, how the

invested money of Rs.30 lacs was deposited to the account of GSL

and that apart, why the petitioners had accepted the draft through

Vivekananda Modak. It is not the case of the petitioners that they

did not utilize the amount in course of trading.

(emphasis supplied)

46. Further, in the light of discussion made here-in-above,

this Court, prima facie, is satisfied that the charge under Section

120B of IPC may sustain since enough evidence surfaces to put the
Page 22 of 30

said charge on trial. In a recent decision, the Apex Court in State

vs. Arup Kumar Srivas tava, (2017) 15 SCC 560 has held

thus:

“26. Similarly, the law on the issue emerges to the
effect that conspiracy is an agreement between two or
more persons to do an illegal act or an act which is not
illegal by illegal means. The object behind the
conspiracy is to achieve the ultimate aim of conspiracy.
For a charge of conspiracy means knowledge about
indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful
use being made of the goods or services in question
may be inferred from the knowledge itself. This apart,
the prosecution has not to establish that a particular
unlawful use was intended, so long as the goods or
services in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that
each of the conspirators had the knowledge of what the
collaborator would do.”

47. Further, as per contract the company will take consent

from the investor/complainant before transaction but they made

the transaction without the complainant being taken into

confidence which acts, according to me, tantamount to dishonest

inducement.

48. Moreover, it is true that the petitioners did not induce

the respondent No.2 directly but Vivekananda was engaged as

agent who was acting on behalf of them. Vivekananda received the

said money from the complainant-respondent No.2 to invest in

GSL, the company of which the respondents were the Board of

Directors. So, the accused-petitioners received the said sum of

Rs.30 lacs from Vivekananda and deposited the said sum of Rs.30

Lacs to the account of their company, the Guinness Securities

Limited and thus, utilized the entire amount for their business. The

respondents were entrusted with the Money of the respondent No.2

who also had the dominion over the invested amount.
Page 23 of 30

49. The respondents have submitted a written argument

which also was submitted by the learned senior counsel. The crux is

that the respondent No.2 was never influenced by the respondents

in any manner to satisfy the ingredients required for bringing home

a charge under Section 420IPC.

50. Expressing his strong reservation of framing charge

under Section 406 IPC, learned senior counsel has contended that

neither there was any entrustment upon the respondents nor the

respondents had any dominion over the money that was handed

over to Vivekananda Modak; the respondents had not dishonestly

misappropriated or converted the investment of the complainant to

their own use and he also has not converted or disposed of the

investment in violation of any direction of law prescribing the mode

in which such trust is to be discharged or there is no violation of

any legal contract which the respondents has made in discharge of

such trust upon them by the complainant.

51. As many as 19 sets of documents have been seized to

substantiate the prosecution case. More so, prima facie it is

revealed that Vivekananda approached the complainant and on his

persuasion the complainant invested the money which was

deposited in the account of the GSL when the petitioners were at

the helm of its affairs and responsible for all activities and

transactions of the company. If the respondents being the Board of

Directors of the GSL had no relation, then how the money was

deposited in the bank account of GSL, which, however, has not

been clarified by the learned senior counsel for the petitioners.
Page 24 of 30

52. In the present case in hand, in the final police report,

i.e. the charge sheet, the investigating agency has come to a prima

facie conclusion that a charge under Section 419/120/406/420/109

IPC has been well established against the petitioners. The

petitioners were the Board of Directors of the GSL at the time of

incident, i.e. from 01.12.2008 to 28.07.2009 and are responsible

and liable for all transactions. There is clear allegation that the

transactions have been made keeping the complainant wholly in

dark and no consent was taken from the complainant Joydeep Roy

Barman regarding purchase of share/share trading causing the

complainant huge loss.

53. The GSL informed in writing to the complainant that

they received the money invested by the complainant to the tune

of Rs.33,00,000/- by cheques and DD in the respective banks.

Entrustment was also lying with them. After evaluation of materials

and documents, this Court finds the elements to proceed with the

trial. The position of law is settled and no more res integra that the

court in exercising its inherent power cannot appreciate the

evidence to conclude whether the materials produced are sufficient

or not for convicting the accused-petitioners. Further, from the

document seized, it was found that the accused persons on many

occasions represented their case falsely. I find there is direct

allegation against the petitioners. The learned Magistrate has

framed charges vide order dated 11.06.2018 being prima facie

satisfied with the materials on record.

Page 25 of 30

54. The relevant portion of the order is reproduced

hereinbelow:

“………………..

Today was fixed for framing of charge against the present
accused persons of this case.

Accordingly, I have framed a charge against the accused
persons namely Subir Chakrborty, Kamal Kr. Kothari, Sunita
Kothari, Dharmendra Kothari Dipak Rudra, U/S 406/420/120B/109
of IPC, read with Section 420 of IPC and it was read over to the
present accused persons in the open Court of law, to which all of
them pleaded not guilty and claimed to be tried.

Now, the case will be listed for recording of evidence of the
prosecution witnesses of this case.

Learned Counsel Mr. K. Roy for the accused persons prayed
to fix the date for recording of evidence of the PWs during the
month of August, 2018.

The fact also remains that the Hon’ble High Court in this case
has been pleased to direct the Chief Judicial Magistrate-cum-Civil
Judge (Sr.Div.), West Tripura District to dispose the case as early
as possible and a time frame has already been fixed by the Hon’ble
High Court in this respect.

I also find that the instant case is an old pending one and all
necessary expeditious steps must be taken for its early disposal,
keeping in mind the kind direction of the Hon’ble High Court and
the kind time frame given by the Hon’ble High court.

Office is directed to issue fresh summons upon the below
noted witnesses fixing the below noted dates………………..”

After saying so, the calendar was fixed for recording

evidence with effect from 11.07.2018 to 02.08.2018 of the

prosecution witnesses.

55. The order of the learned Magistrate of framing of

charges, being challenged, the learned Addl. Sessions Judge while

passing the order dated 06.08.2018 has held that prima facie

materials are available in the police report against the petitioners.

The learned revisional court has placed reliance on the decision of

the Apex Court in State of Orissa Vs. Debendra Nath Padhi

reported in AIR 2005 SC 359, para 18, where it was observed:

“……………Further, at the stage of framing of charge robbing and
fishing inquiry is impermissible. If the contention of the accused is
accepted, there would be a mini trial at the stage of framing of
charge. That would defeat the object of the court”

Page 26 of 30

56. It was further observed at the end of the said para 18

that,

“…………….At the stage of framing of charge hearing the
submissions of the accused has to be confined to the material
produced by the police.”

57. The manner and way the learned Magistrate took up the

proceeding, which was affirmed by the learned Addl. Sessions

Judge cannot be termed to be an abuse of the process of court in

the facts of the present case. There is no material to justify that

grave miscarriage of justice will be caused to the petitioners if the

present criminal proceedings are allowed to be put in trial and for

doing complete justice to the parties to the lis.

58. The Apex Court in Asian Resurfacing of Road Agency

Pvt. Ltd. Ors. Vs. Central Bureau of Investigation, AIR

2018 SC 2039, referring to the decision of the Constitution Bench

in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92

observed:

“100. However, there is a series of cases wherein this Court while
dealing with the provisions of Sections 227,228,239,240,241,242
and 245 Code of Criminal Procedure, has consistently held that the
court at the stage of framing of the charge has to apply its mind to
the question whether or not there is any ground for presuming the
commission of an offence by the Accused. The court has to see as
to whether the material brought on record reasonably connect the
Accused with the offence. Nothing more is required to be enquired
into. While dealing with the aforesaid provisions, the test of prima
facie case is to be applied. The court has to find out whether the
materials offered by the prosecution to be adduced as evidence
are sufficient for the court to proceed against the Accused further.
(Vide State of Karnataka V. L. Muniswamy [MANU/SC/0143/1977:
(1977) 2 SCC 699], All India Bank officers’ Confederation v. Union
of India [MANU/SC/0020/1989 : (1989) 4 SCC 90], Stree Atyachar
Virodhi Parishad V. Dilip Nathumal Chordia [MANU/Sc/0573/1989:
(1989) 1 SCC 715] State of M.P. v. Krishna Chandra Saksena
[MANU/SC/1749/1996 : ((1996) 11 SCC 439 and State of M.P. V.
Mohanlal Soni [MANU/SC/0434/2000: (2000) 6 SCC 338].”

59. In para 33 of Asian Resurfacing of Road Agency Pvt.

Ltd. Ors. (supra) the Apex Court has observed thus:
Page 27 of 30

“33. If the contrary to the above law, at the stage of charge, the
High Court adopts the approach of weighing probabilities and re-
appreciate the material, it may be certainly a time consuming
exercise. The legislative policy of expeditious final disposal of the
trial is thus, hampered. Thus, even while reiterating the view that
there is no bar to jurisdiction of the High Court to consider a
challenge against an order of framing charge in exceptional
situation for correcting a patent error of lack of jurisdiction,
exercise of such jurisdiction has to be limited to rarest of rare
cases. …………….”

60. Again in para 36 of Asian Resurfacing of Road

Agency Pvt. Ltd. Ors. (supra) the Apex Court has declared the

law as under:

“36. Thus, we declare the law to be that order framing charge is
not purely an interlocutory order nor a final order. Jurisdiction of
the High Court Is not barred irrespective of the label of a petition,
be it under Sections 397 or 482 of the Code of Criminal Procedure
or Article 227 of the Constitution. However, the said jurisdiction is
to be exercised consistent with the legislative policy to ensure
expeditious disposal of a trial without the same being in any
manner hampered. Thus considered, the challenge to an order of
charge should be entertained in a rarest of rare case only to
correct a patent error of jurisdiction and not to re-appreciate the
matter. ………..”

61. In the said case, Hon’ble Justice Rohinton Fali Nariman,

while supporting the above view expressed his opinion separately

to the fact that, “it is well settled law that jurisdiction under Section

482 of the Code of Criminal Procedure or under Article 227 of the

Constitution of India cannot be exercised as a “cloak of an appeal in

disguise” or to re-appreciate evidence. The aforesaid proceedings

should be used sparingly with great care, caution, circumspection

and only to prevent grave miscarriage of justice.”

62. In the light of the aforesaid legal position, I can hold

that the power under Section 482 CrPC is to be exercised only in

respect of interlocutory orders to give effect to an order passed

under the Code of Criminal Procedure or to prevent abuse of the

process of any court or otherwise to serve the ends of justice. As
Page 28 of 30

indicated above, this power has to be exercised only in the rarest of

rare cases and not otherwise.

63. I reiterate that I find no apparent error in the orders of

the learned Magistrate as well as the learned Addl. Sessions Judge,

which they passed in exercise of their jurisdiction under the Code.

Factually, I find that there is no patent error to justify any

correction of the said orders and the present case does not fall

within the category of rarest of rare cases where the inherent

jurisdiction of this Court under Section 482 of the CrPC can be

exercised.

64. Since I have already observed that the learned

Magistrate has fixed the calendar on day to day basis it would be

prudent for the petitioners to face the trial for expeditious disposal

of the case.

65. The issue No. 3 deals with whether the petitioners can

be held vicariously liable for being the Board of Directors of the

company under the provisions of IPC when the Company by itself

has not been made an accused in this case.

66. As I have already held that there are direct allegations

against the Board of Directors and in a simplest manner this Court

can resolve the issue by taking recourse to Section 319 CrPC where

the power has been given to the Court or to the prosecution to

consider the necessity of incorporating the GSL as a company

which itself can be tried together with the accused-petitioners of
Page 29 of 30

the present case. For convenience, Section 319 of CrPC is

reproduced hereinbelow:

“319. Power to proceed against other persons appearing to be
guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence,
it appears from the evidence that any person not being the
accused has committed any offence for which such person could
be tried together with the accused, the Court may proceed against
such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or
upon a summons, may be detained by such Court for the purpose
of the inquiry into, or trial of, the offence which he appears to have
committed.

(4) Where the Court proceeds against any person under sub-
section (1), then-

(a) the proceedings in respect of such person shall be commenced
a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed
as if such person had been an accused person when the Court
took cognizance of the offence upon which the inquiry or trial was
commenced.”

67. By virtue of the said Section, it is clear that during the

course of trial, if it appears from the evidence that any person not

being the accused has committed any offence for which such

person can be tried with the accused, court may proceed against

such person for the offence which he appears to have been

committed. In my considered view, if this is a defect, that defect

can be cured even at the stage of trial.

68. In the present case only charge has been framed and

the evidence is yet to be recorded. So, there will be no bar to

incorporate the company, and the proceedings may continue. If it is

so done, there would be no miscarriage of justice caused towards

the petitioners.

Page 30 of 30

69. Having regard to the facts in issue raised in this petition

in the backdrop of the reasonable sequitur propounded in the

above authorities of law, I find no merit in the present petition filed

under Section 482 of the Cr.PC. No case is made out to exercise

the inherent power of this Court under Section 482 CrPC.

Hence, the petition is dismissed.

JUDGE

lodh

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