Manoranjan Mondal vs State Of West Bengal

Suvra Ghosh, J

1) Order dated 23-09-1993 passed by the then Sub divisional Judicial Magistrate, Burdwan, in G.R. case no. 885 of 1991 is assailed.

2) The allegations made out in the complaint were that on 10.07.1991 when the complainant along with his team of officers of the West Bengal State Electricity Board went to Satima cold storage for the purpose of inspection of the electric meters, they proceeded to shut down the connection for inspection of the jumper in connection with the high tension line in front of the cold storage. When they were about to shut down the line, one Pardeshi along with three others reached the spot and watched the men of the electricity board. They went away only to return with 200/300 persons from the cold storage who tried to assault the complainant and his men, damaged their cars and used abusive language towards them. They also compelled the complainant and his men to put their signatures in a paper as per their dictation and allowed them to leave only upon assurance that they would not disconnect the line. Charge- sheet was submitted in the case against the sole accused Pardeshi and the case was taken on board for trial. Till such time, the petitioner's name did not appear either in the complaint, or in the charge-sheet or any other document.

In course of trial, Atindra Chandra Das, who was the Divisional Engineer, Vigilance Cell, West Bengal State Electricity Board at the relevant time, was examined as prosecution witness no. 3 and he stated before the Court that Manoranjan Mondal (the petitioner) was the owner of the cold storage when the alleged incident occurred. Following his statement, the prosecution filed an application before the learned trial court under Section 319 of the Code praying for proceeding against the petitioner as an accused in the case along with two others. The said prayer was allowed by the trial court by the order impugned.

3) The provision of Section 319 of the Code is required to be set out: -

"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."

4) The petitioner was admittedly the owner of the cold storage at the relevant point of time. He was not arraigned as an accused either in the complaint or in the charge-sheet. No incriminating material with regard to offences under Sections 147/342/506/323 of the Penal Code was found against him in course of investigation. Besides the statement made by the prosecution witness no. 3 that the petitioner was the owner of the cold storage, there is no material within the four corners of the records which makes out even a prima facie case against the appellant.

5) Learned advocate for the State has referred to some kind of vicarious liability of the petitioner in the offence alleged due to his being the owner of the cold storage and also as the employees of the cold storage including the accused acted in the interest of the owner.

6) Learned advocate for the petitioner points out that there is no concept of vicarious liability in criminal law.

7) The petitioner has placed reliance upon the authority in Labhuji Amratji Thakor & Others v/s The State of Gujrat and Another in Criminal Appeal no. 1349 of 2018 and Brijendra Singh and Others. v/s The State of Rajasthan reported in (2017) 7 Supreme Court Cases 706 wherein the Hon'ble Supreme Court has referred to the pronouncement in Hardeep Singh v/s State of Punjab reported in (2014) 3 Supreme Court Cases 92. The relevant portion of the judgment in Hardeep Singh's case is set out:-

"Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC."

8) In the present case, the main thrust of the allegation is against one Pardeshi who expired on 27.10.2016 as reported by the State. No evidence is found against the petitioner, which is strong and cogent enough to arraign him as an accused. Merely because the petitioner was the owner of the cold storage at the relevant time, he cannot be held responsible for any act done by his employees in his absence and without his instruction. Admittedly the petitioner was not present at the place of occurrence when the alleged incident occurred. The allegation against the accused is under Sections 147/342/506/323 of the Penal Code and no liability can be attributed to the petitioner for alleged commission of such act by the accused. Witnesses who were examined under Section 161 of the Code by the investigating officer during investigation have not spoken a word holding the petitioner responsible for the alleged offence. The learned trial court has failed to appreciate the evidence in its proper perspective in holding that the act alleged was committed at the behest of the petitioner though he was not present at the spot.

9) Accordingly, the order impugned cannot be sustained and is hereby set aside.

10) CRR 1937 of 1993 is allowed accordingly.

11) There will be no order as to costs.

12) Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.