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Judgment
Rathnakala, J—Since the intervention of this Court under Section 482 of Cr.P.C. is sought for, in respect of the common order passed by the 1st Additional District & Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Revision Petition Nos. 244/2013 and 245/2013, both cases are heard and taken together for disposal.
As the facts unfurl, the common petitioner of both the cases filed a private complaint before the jurisdictional Magistrate under Section 200 of the Code of the Criminal Procedure, against 13 accused persons. The learned Magistrate took cognizance and recorded the sworn statement of the complainant and being satisfied with a prima facie case being made out, ordered summons against accused Nos. 1 to 13 in respect of the offences punishable under Sections 427, 447, 506 and 120-B read with Section 34 of IPC. Aggrieved accused Nos. 1 to 9 challenged the order of summons of the learned Magistrate in Revision Petitions. The Revision Petition of accused Nos. 1 to 5 is numbered as Criminal Revision Petition No. 244/2013 and that of accused-6, 7, 8 and 9 as Criminal Revision Petition No. 245/2013. The learned Sessions Court allowed the revision so far as accused Nos. 1 to 8 and confirmed the issuance of summons against accused No. 9.
At this juncture, it needs to have a bird view of the allegations of the petitioner in his complaint against the accused persons. The petitioner is the owner in possession of land to an extent of 7.50, 1.76 and 1.15 acres of Sy. Nos. 56/2, 178/2C and 50/6B respectively of Malavur and Bajpe village of Mangalore Taluk. He constructed the stone work throughout the boundary of his property and has grown valuable trees in the said land. The first and sixth accused are the Companies incorporated under the Indian Companies Act; 2nd accused is the Chairman and 3rd accused is the Executive Director; they are controlling and managing the affairs of the Company. The accused Nos. 1 to 3 conspired with other accused to lay pipelines in his property; accused Nos. 4 and 5 are the planners and executioners of the project work of first accused at the site. The 7th accused is the head of the sixth accused and 8th accused is the Administrator; they are engaged in construction activities in the name of the sixth accused. Accused No. 9 is the employee of the sixth accused. 10th accused is the contractor of the 6th accused appointed by accused Nos. 7 and 8. Accused Nos. 11 to 13 are the employees of accused No. 10. The first accused intended to lay water pipeline by the side of the Mangalore - Bajpe Old Airport Road commencing from the Netravathi river bank at Sarapady to MSEZ Industrial sites in Mangalore Taluk. The permission is obtained by the PWD, Mangalore, to carry out the work by the side of the road. The pipeline was intended to run abutting the above said property of the complainant. The accused Nos. 2 to 5 and 7 to 13 conspired with common intention to lay pipelines beneath the property of the complainant and trespassed into his property; demolished the stone compound wall of 7 feet height and foundation of 3 feet height beneath the ground and 2 feet wide to the extent of about 500 meters. In the process, they destroyed 100 valuable trees and have laid the pipeline beneath the schedule property to an extent of 500 meters. At that time, the complainant was not in station and on 21.4.2012 on noticing the devastation of the property, he enquired with the accused; in response they criminally intimidated him and threatened of dire consequences. Hence, he lodged a complaint to the local police station instead of registering the case; the Station house Officer of the Police Station held a shoddy enquiry. He enquired with 5th accused only, who in turn admitted the same and undertook to pay additional compensation to the complainant towards the damage of his property and also to re-construct the damaged compound. His undertaking binds all other accused persons on the basis of the statement of the fifth accused, the police closed the matter and issued an endorsement to that effect. Thereafter accused did not come forward to fulfill their obligation. The accused have committed the above offence in collusion with each other.
The learned Magistrate appreciating the entire complaint allegations so also the documents filed about the ownership of the land damaged was satisfied that the complainant has made out a prima facie case to proceed against the accused persons. Hence, ordered to issue summons to the accused to face trial for the aforesaid offences. Being aggrieved by the same, the accused Nos. 1 to 9 approached the Revisional Court.
The Revisional Court was of the opinion that there is no material to proceed against accused Nos. 1 to 8 in respect of the offence punishable under Sections 427, 447, 506 and 120-B read with Section 34 of IPC. But as regards accused No. 9, who is the Site Supervisor; accused No. 10 is the Sub-Contractor; accused Nos. 11 to 13, the labourers appointed by accused No. 10, who have actually worked at the site and there is prima facie case made out against these accused and accused Nos. 1 to 8 cannot be vicariously held responsible for the offence committed by the other accused who, under the guise of carrying out work entrusted to them, trespassed over the property of the complainant, destroyed and damaged the property. Since they were not present at the spot, they are not responsible for actual execution of work at the site.
Sri. Sachin B.S., learned Counsel appearing for the petitioner assailing the order of the Revisional Court submits that, the Revisional Court has exceeded its jurisdiction and treated the matter as if it is sitting in appeal over the order of the Magistrate. The learned Magistrate had taken cognizance on the basis of the material placed before him and the complaint allegation. Though he has not passed a detailed order about his satisfaction of commission of offence, no prejudice is caused to the accused (reliance is placed on V.S. Joshi and Another Vs. N.G. Bhat Chitrigi and Another, (2006) CriLJ 1566 : (2006) ILR (Kar) 735 : (2006) 1 KarLJ 495 : (2006) 2 KCCR 819 ; AIR 2008 SC 1456 in the matter of U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and others). At that stage, the Magistrate is not expected to make a detailed enquiry. The scope of enquiry is only to the extent of ascertaining the truth or falsehood of complaint allegation (reliance placed on Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, AIR 1976 SC 1947 : (1976) CriLJ 1533 : (1976) 3 SCC 736 : (1976) SCC(Cri) 507 : (1976) SCR 123 Supp ; Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, AIR 1972 SC 2639 : (1973) 3 SCC 753 : (1973) SCC(Cri) 521 : (1973) 2 SCR 66 . When there is allegation that the accused Nos. 1 to 8 have conspired with the co-accused to lay the pipeline under the property of the complainant, at the stage of issuing process, the Revisional Court could not have interfered and the order of the Revisional Court is liable to be quashed.
Sri. Dhyan Chinnappa, learned Senior Counsel appearing for the respondents submits, as noticed earlier, accused No. 1 and 6 are the registered Companies; accused Nos. 3 and 4 and 7 to 8 are its Administrators/Executives; on the showing of the petitioner itself, they were not personally involved in execution of work on the site.
The Apex Court categorically and consistently is pronouncing that there is no vicarious liability in the matter of Corporate bodies, unless the statute specifically provides so. (Reliance is placed on Sunil Bharti Mittal Vs. Central Bureau of Investigation(2015) 1 AD 269 : AIR 2015 SC 923 : (2015) 126 CLA 214 : (2015) CriLJ 1130 : (2015) 1 Crimes 135 : (2015) 1 JCC 759 : (2015) 2 RCR(Criminal) 1 : (2015) 1 SCALE 140 : (2015) 4 SCC 609 : (2015) 1 SCJ 324 ; Maksud Saiyed Vs. State of Gujarat and Others, (2008) CLT 715 : (2008) 1 CTC 259 : (2007) 11 JT 276 : (2007) 11 SCALE 318 : (2008) 5 SCC 668 : (2007) 9 SCR 1113 ; Sham Sunder and Others Vs. State of Haryana, AIR 1989 SC 1982 : (1990) 1 CompCas 67 : (1989) CriLJ 2201 : (1989) 3 Crimes 347 : (1989) 3 JT 523 : (1989) 2 SCALE 446 : (1989) 4 SCC 630 : (1989) 3 SCR 886 ; Hira Lal Hari Lal Bhagwati Vs. C.B.I., New Delhi, AIR 2003 SC 2545 : (2003) CriLJ 3041 : (2003) 3 CTC 356 : (2003) 182 CTR 1 : (2003) 87 ECC 473 : (2003) 155 ELT 433 : (2003) 262 ITR 466 : (2003) 4 JT 381 : (2003) 4 SCALE 471 : (2003) 5 SCC 257 : (2003) 3 SCR 1118 : (2003) AIRSCW 2735 : (2003) 4 Supreme 274 ; R. Kalyani Vs. Janak C. Mehta and Others, (2009) CLT 272 : (2008) 12 JT 279 : (2009) 1 SCC 516 ; Keki Hormusji Gharda and Others Vs. Mehervan Rustom Irani and Another, AIR 2009 SC 2594 : (2009) 150 CompCas 70 : (2009) CriLJ 3733 : (2009) 13 JT 540 : (2009) 8 SCALE 289 : (2009) 6 SCC 475 : (2009) 9 SCR 183 .
The learned Magistrate in his order does not assign any reason while holding that there is prima facie case to proceed against all the accused persons. Rightly the Revisional Court in its jurisdiction has examined the case of respondents herein and set aside the order of the Magistrate so far the present respondents are concerned and the order of the Revisional Court is proper and legal.
In the light of the rival submissions, the point that arises for my consideration is,
"Whether interference under the jurisdiction of Section 482 of Cr.P.C. is warranted against the order of the Revisional Court?"
The grievance against the order of the Revisional Court is that the Magistrate has recorded his satisfaction about the existence of a prima facie case against all the accused persons as required under law and when there is no procedural irregularity, Revisional Court could not have extended its jurisdiction in the matter. But it shall never be lost sight of that, within the scheme of Section 397 of Cr.P.C., the correctness, legality or propriety of sentence/order and regularity of the proceedings of the inferior Courts are encompassed. Specific allegation against the respondents mentioned in the complaint is under Section 120-B of IPC only and they are alleged with the liability of the offences under Sections 427, 447 and 506 of IPC with the aid of Section 34 of IPC. As shown in the complaint, they were not at the spot when the property was allegedly damaged by the co-accused. Section 120-B of IPC being a penal provision, the ingredients of Section 120-A needs to be made out in the complaint averments to penalize the accused persons under Section 120-B of IPC. No tangible material is shown against respondents-2 to 5 and 7 and 8, who are the Administrators/Directors of the Companies/respondents-1 and 6 indicating their intentional indulgence in the criminal conspiracy with the co-accused. The allegation against them as it would strike to common prudence is nothing but hypothetical and imaginary. In Sunil Bharti Mittal''s case (supra), the Apex Court observed thus:
"37. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision."
The complaint allegation falling short of the ingredient of the active role coupled with the criminal intention of accused Nos. 2 to 5, 7 and 8, the complaint fails against both Companies so also their Administrators/Directors. Time and again it is reminded by the higher courts to the inferior courts that, while issuing summons, the Magistrate has to form an opinion after due application of mind that there is sufficient basis for proceeding against the accused and his order shall reflect such due application of his mind. The learned Magistrate in the body of his order has spent pages only to reproduce the complaint and suddenly jumps to record his satisfaction in a cryptic manner. Issuing of summons to the accused being a serious matter having long lasting repercussions on the liberty and free movement of a citizen of the country, it shall not be ordered merely on asking. Rightly the Revisional Court has distinguished the case of the respondents herein from that of other co-accused, who were personally engaged at the spot and quashed the registration of criminal case so also in issuing summons against respondents/accused Nos. 1 to 8. I find no arbitrary exercise of jurisdiction by the Revisional Court.
Hence, both the Petitions are dismissed.