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Judgment
Arunachalam, J.—The Petitioners, who are common in all these revisions are accused in C.C. Nos. 431, 430 and 429 of 1983 on the file of
the Judicial First Class Magistrate No. 1, Madurai. The Petitioners have been charge-sheeted for offences under R.7 of the Indian Explosive Rules
read with Section 9-C(2) read with Section 9-B(1)(b) of the Indian Explosives Act, 1984 and Section 477A of the Indian Penal Code. Accused 7
and 8 [Petitioners 7 and 8] are indicted for an offence u/s 9-C(1) of the Act as well.
The prosecution case is that the eighth Petitioner is a company registered under the Registration of Firms Act and is a licenced holder in ''L''
Form valid upto 31-3-1983 granted under the Indian Explosives Act for the possession and sale of explosives. The seventh Petitioner is stated to
be the Manager of eighth Petitioner firm. The seventh Petitioner is the son of the second Petitioner. It is represented to me at this stage that the
second Petitioner died during the pendency of these revisions in this Court. Hence as far as the second Petitioner is concerned, the prosecution
abates and no further consideration of his case will be necessary.
Petitioners 1 and 3 to 6 are stated to be the partners of the eighth Petitioner firm and they are brothers. The only allegation against Petitioners 1
and 3 to 6 is that they are partners of the eighth petitioner firm and the seventh Petitioner with the connivance of these accused/Petitioners through
the eighth Petitioner firm sold certain explosives to different parties, which are the subject matter of the three prosecutions instituted by the
Respondent. It is frankly conceded by the learned Counsel for the Respondent that except this averment there is nothing else in the entire records
furnished to the Petitioners u/s 173, Code of Criminal Procedure to indicate involvement of Petitioners 1 and 3 to 6 in this crime. At this stage, Mr.
B. Sriramulu, learned Counsel for the Petitioners states that as far as Petitioners 7 and 8 are concerned, the trial may have to be proceeded with
and at this juncture their prayer for quashing may be premature. Since allegations have been made against these two Petitioners it will be a matter
for evidence to be appreciated by the trial Court and there will be thus no useful purpose served in considering the case against them at this stage.
To quash the proceedings against them will not be feasible since it pertains to the realm of appreciation of evidence by the trial Court. These
revisions, as far as Petitioners 7 and 8 are concerned, are dismissed.
The only aspect, which survives for consideration is whether the proceedings in these three calendar cases could be proceeded with against
Petitioners 1 and 3 to 6 when there is no allegation to connect them with the crime in question. Section 9-C of the Indian Explosives Act deals with
the offences alleged to have been committed by companies. Section 9-C reads as under:
(1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in-
charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this Sub-section shall render any such person liable to any punishment under this Act if he proves that the
offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-S.(1), where an offence under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.
Explanations: For the purpose of this section,-
(a) ""company"" means any body corporate, and includes a firm or other association of individuals; and
(b) ""director"" in relation to a firm, means a partner in the firm.
It is obvious from a reading of this provision that whenever an offence under this Act is committed by a company, every person who at the time
the offence was committed was in-charge of, or was responsible to the company for the conduct of the business of the company as well as the
company, shall be deemed to be guilty of the offence. Before the proviso could be applied, basically, the prosecution must be able to show atleast
by the averments made in the complaint, that the Petitioners were in-charge of and were responsible to the company for the conduct of its
business. Naturally, the averments can be so made in the charge sheet only after a proper investigation, during which material must be collected to
connect the Petitioners as persons who were in charge of or were responsible for the conduct of the business of the company.
On the facts narrated above, it is very clear that these conditions which form the basic foundation, have not been specified, to charge the
Petitioners with the offences in question. A mere description of the Petitioners as partners of the firm without anything more and in the absence of
an averment that these persons, at the time of the contravention, were in charge of and were responsible for the conduct of the business of the
company, the prosecution against them will not be maintainable. Allegations will have to be made with basic materials, which can, of course, be
later proved during the course of the trial. The Supreme Court in Delhi Municipality v. Ram Kishan AIR 1963. S.C. 67, while considering the
scope of a similar provision under the Prevention of Food Adulteration Act, held:
So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption
drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also
be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case
against the Directors (accused Nos. 4 to 7) has been made out ex-facie on the allegations made in the complaint and the proceedings against them
were rightly quashed.
The dictum of the Supreme Court will squarely apply to the facts of this case. The Petitioners moved the trial Magistrate for discharge, which
plea was negatived by the trial Magistrate on the ground that the Petitioners will have to establish that the offence was committed without their
knowledge and they had exercised all due diligence to prevent the commission of such offence. As stated earlier by me, the proviso can spring into
operation only basically if there is satisfactory material placed by the prosecution that the Petitioners were in charge of and were responsible for the
day-to-day conduct of the business of the company. Section 9-C(2) cannot operate at this stage since the onus is cast on the prosecution to
establish that the offence had been committed with the consent or connivance of the Petitioners or attributable to any neglect on their part.
Obviously, the reasoning of the trial Magistrate will not be sustainable in he light of the definite provisions in the Act read in consonance with the
law laid down by the Supreme Court. Petitioners 1 and 3 to 6 are bound to succeed and the proceedings against them in C.C. Nos. 431, 430 and
429 of 1982 on the file of the Judicial First Class Magistrate No. I, Madurai are quashed. The trial Magistrate is directed to proceed with the trial
as against seventh and eighth Petitioners (accused 7 and 8) as expeditiously as possible, in accordance with law. The case against the second
Petitioner/accused abates. The revisions are allowed to the extent indicated above.