Criminal Petition by the State challenging a High Court order that quashed cognizance proceedings against the directors of M/s Chirag Mangaluru Builders, holding that specific averment of control was essential for prosecuting individuals without joining the company.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER 2016
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.1981 OF 2016
BETWEEN:
…PETITIONERS
(By Shri Chetan Desai, Government Pleader)
AND:
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Mangalore – 575 002.
…RESPONDENTS
This Criminal Petition filed under Section 482 code of Criminal Procedure, 1973, by the State Public Prosecutor for the State praying to set aside the common order dated 27.11.2014 passed by the II Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Crl.R.P.No.214/2014 to 218/2014, partly allowing the Crl.R.P.Nos. 214 and 215/2014 filed by the respondents and another in so far as it relates to setting aside the order of Judicial Magistrate First Class (II Court), Mangaluru in C.C.No.1745/2014, 1747/2014, 1746/2014, 1744/2014 and 1748/2014 regarding taking cognizance against the respondent no.2 and further setting aside the order of taking cognizance in Crl.R.P.Nos.216/2014 and 217/2014 and 218/2014.
This Criminal Petition coming on for Admission this day, the court made the following:
O R D E R
Heard the learned Government Pleader.
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order passed in Revision petitions which were disposed of together, by the court below. The Revision Petitions were filed by the respective revision petitioners who were said to be the Managing Director and Director of a company known as “M/s. Chirag Mangalore Builders & Developers Pvt. Ltd.”, Mangalore, who had challenged the order of taking cognizance by the JMFC II Court, Mangalore, on the basis of a complaint filed by the respondent, namely the Senior Labour Inspector of Mangalore. The Revision Petitions were against the registration of cases in C.C.Nos.1744-1748/2014.
The brief facts leading to those cases was that the complaint of the petitioners herein against the respondent – Revision petitioners was allegation of various lapses under the provisions of several enactments and thereby having committed offences. The enactments in the different cases challenged before the court below, are shown hereunder in Tabular form:
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| 1 | C.C.No.1745/14 | Section 22B Act,1948 |
of Minimum | Wages |
|---|---|---|---|---|
| 2 | C.C.No.1747/14 | Section 12(2 Remuneration |
)(a) of the Act,1976 |
Equal |
| 3 | C.C.No.1746/14 | Section 21(3) ofWagesAct, |
and 3(A) of P 1936 |
ayment |
| 4 | C.C.No.1744/14 | Section 31 of Commercial 1961 |
Karnataka Sh Establishment |
ops and Act, |
| 5 | C.C.No.1748/14 | Section 16 (Prohibition an |
of Child d Control)Act |
Labour |
In all the complaints, it was the common allegation that the complainant had visited the premises and that Accused No.3 was present and he was asked to furnish details in respect of the several statutory compliances and it is alleged that he had failed to produce those details and on the other hand, had sought for time to produce the same and as the requirements were not complied with, an adverse inference was drawn and a complaint was lodged thereafter alleging offences as stated hereinabove. It was mentioned that the accused come within the purview of the respective defence of ‘employer’ as contemplated under the various provisions of the aforesaid statutes. However, it was
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the primary contention of the respondents that there was no specific averment that the respondents herein had ultimate control of the affairs of the establishment or the premises where they were found and merely because they were the Managing Director and Director of the company, they could not be prosecuted without there being a specific averment as to any default on their part. Apart from this, it was also urged that in the absence of the company itself being made as a party, the respondents herein would not be proceeded against in isolation, merely on the presumption that since they were the Managing Director and Director of the company which is sought to be proceeded against, since they would adequately represent the company.
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in charge of the affairs of the company and they had failed in their duty, in the absence of which, the complaints could not be proceeded with. It is on this short ground with reference to the case law, the court below has quashed the proceedings insofar as the complaint instituted both against the Managing Director and Director, however, it was held that the proceedings could go on in respect of the company and its Manager who was responsible for any default. Hence, there is no fault to be found with the order.
Accordingly, the present petition is rejected.
Sd/- JUDGE
KS
3 issues framed by the court
Whether the successor criminal prosecution initiated by the State under Section 482 Cr.P.C., 1973 challenging the High Court order which set aside cognizance against the directors was correct.
Whether the revision petition filed by the labor department setting aside the order of registration of cases against the company and its directors was maintainable.
Whether the quashing of proceedings against the Managing Director and Director without specific averment of their control over default was appropriate.
6 provisions across 6 enactments
The State
The Senior Labour Inspector
M/s Chirag Mangaluru Builders and Developers Private Limited
B. Hemanth Kumar
ANAND BYRAREDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
