Jyoti Prakash Sinha, aged about 52 years, son of Late R.P. Sinha, resident of v. 1. The State of Jharkhand 2. Jharkhand State Pollution Control Board having its head
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2745 of 2024 Jyoti Prakash Sinha, aged about 52 years, son of Late R.P. Sinha, resident of Flat No. 202, Anjali Apartment, Harihar Singh Road, Morabadi, P.O.- Morabadi, P.S.- Bariyatu, Dist.- Ranchi (Jharkhand) ...... Petitioner Versus 1. The State of Jharkhand 2. Jharkhand State Pollution Control Board having its head office at Nagar- Prasashan Bhawan, HEC, Dhurwa, P.O.- Dhurwa, P.S.- Jagarnathpur, Dist.- Ranchi represented by Gopal Kumar, son of name not known to the petitioner, Regional Officer, Jharkhand State Pollution Control Board, having its office at Regional office, C.T.I. colony, E-1, Dhurwa, P.O.- Dhurwa, P.S.- Jagarnathpur, Dist.- Ranchi ….. Opposite Parties For the Petitioner : Mr. Indrajit Sinha, Adv. Mr. Sagar Kumar, Adv. : Mr. Pankaj Kumar, PP For the State For the O.P. No. 2 : Ms. Richa Sanchita, Adv. Ms. Pinku Shaw, Adv. P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of BNSS, 2023 with a prayer for quashing and setting aside the entire criminal proceeding in connection with Complaint Case no. 10346 of 2022 including the order dated 17.11.2022 passed by learned ACJM, Ranchi whereby and whereunder, learned ACJM, Ranchi has found prima facie case against the employer of the petitioner namely M/s Assotech Sun Growth Abode LLP and cited that the petitioner represents his employer being the A.G.M. (Finance), for having committed the offences punishable under Sections 15, 16 and 19 of the Environment (Protection) Act, 1986. 1 Cr.M.P. No. 2745 of 2024 3. At the outset, the learned counsel for the petitioner submits that the petitioner abandons all the prayers made in this criminal miscellaneous petition and modifies his prayer to the effect that the said order dated 17.11.2022 passed in Complaint Case No. 10346 of 2022 be modified to the extent of substituting the petitioner as the representative of his employer with the person to be nominated by his employer in terms of Section 305 of the Cr.P.C. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Standard Chartered Bank & Others vs. Directorate of Enforcement & Others reported in (2005) 4 SCC 530 paragraph-32 of which reads as under:- “32. We hold that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory imprisonment (sic and fine). We overrule the views expressed by the majority in Velliappa Textiles [(2003) 11 SCC 405 : 2004 SCC (Cri) 1214] on this point and answer the reference accordingly. Various other contentions have been urged in all appeals, including this appeal, they be posted for hearing before an appropriate Bench.” and submits that therein it has been held by the majority view that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory imprisonment (sic and fine). 5. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Patna High Court in the case of D. Bhattacharya vs. The State of Bihar & Others reported in MANU/BH/0328/1989 paragraphs-6 and 7 of which read as under:- “6. The learned Counsel for the Petitioner has drawn my attention to Sub-clause 2 and 3 of Section 305 of the Code of Criminal Procedure which read as follows: (2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation. (3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused shall be 2 Cr.M.P. No. 2745 of 2024 construed as a requirement that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement the representative shall be examined. that From a bare perusal of these two clauses of Section 305 of the Code of Criminal Procedure it is apparent that when a company or corporation is being prosecuted in a criminal case in that case processes may be issued against the company and company be given a chance to nominate a representative on its behalf to face the trial on behalf of the company. 7. From the order of the cognizance it appears that opportunity has not been given to the aforesaid company. In that view of the matter, it is directed that prosecution may be launched against the company but an opportunity should be given to the aforesaid company to nominate a representative on its behalf and take any proper step thereafter in accordance with law.” and submits that 305 of the Code of Criminal Procedure makes it crystal clear that when inter alia a company is being prosecuted in a criminal case, in that case, processes may be issued against the company and company be given a chance to nominate a representative on its behalf to face the trial on behalf of the company. The learned counsel for the petitioner further undertakes on behalf of the petitioner that the petitioner will file an affidavit before the court of learned Additional Chief Judicial Magistrate, Ranchi mentioning therein the details of the person nominated by the company to represent it on behalf of the company and also furnishing the name of the Board of Directors of the Company and the address of its registered office within six weeks. 6. In support of his contention, the learned counsel for the petitioner further relies upon the judgment of the Hon’ble Bombay High Court in the case of Sanjeev S. Malhotra vs. The State of Maharashtra & Another passed in Criminal Writ Petition No.4942 of 2019 dated 14.01.2020 paragraph-11 of which reads as under:- “11. It is thus, clear that for prosecuting a Company as accused, the Court is required to issue process against the company and then its becomes choice of the accused Company to nominate 3 Cr.M.P. No. 2745 of 2024 representative to answer the Charge. The corporation by itself is a distinct legal entity than its director. Therefore, the impugned order directing the petitioner/accused no.2 to answer the charge levelled against the accused Company by signing the plea on behalf of the company cannot be sustained. Hence, the order. and submits that therein the said principle of law was reiterated by the Hon’ble Bombay High Court. 7. It is lastly submitted that the prayer of the petitioner, as prayed for in the instant Criminal Miscellaneous Petition, be allowed. 8. Learned P.P appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner and submit that the petitioner is the representative of his employer, so, no illegality has been committed by the learned trial court in mentioning the petitioner as such in the said order dated 17.11.2022. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that Section 305 of the Cr.P.C. mandates that in case a company is being prosecuted in a criminal case; in that case processes may be issued against the company and company be given a chance to nominate a representative on its behalf to face the trial. From the order taking cognizance, it appears that opportunity has not been given to the company in this respect. 10. In that view of the matter, the impugned order issuing processes against the employer of the petitioner namely M/s Assotech Sun Growth Abode LLP represented by the petitioner shall stand modified, subject to the petitioner submitting an affidavit before the court of learned Additional Chief Judicial Magistrate, Ranchi mentioning therein, the person nominated by the company to represent it on behalf of the company and also furnishing the name of the Board of Directors of the Company and the address of its registered office within six weeks, failing which this conditional order shall not be given effect to and this criminal miscellaneous petition shall stand dismissed. 4 Cr.M.P. No. 2745 of 2024 11. In case the petitioner, furnishes the name of the person nominated by the company to represent it on behalf of the company, in this criminal case, the learned Additional Chief Judicial Magistrate, Ranchi is directed to modify the said order dated 17.11.2022 by substituting the name of the petitioner in the said order with the person nominated by the company with that of the petitioner. 12. Accordingly, this Criminal Miscellaneous Petition stands
Decision
disposed of. High Court of Jharkhand, Ranchi Dated, the 27th November, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 5 Cr.M.P. No. 2745 of 2024