IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1749 OF 2015 BETWEEN:
1. KULDIP SINGH DHINGRA CHAIRMAN M/S BERGER PAINTS INDIA LTD., S/O NEERANJAN SINGH DHINGRA AGED ABOUT 65 YEARS R/AT NO.3,TEES JANUARY MARG, DELHI-110011 2. MR. ABHIJIT ROY MANAGING DIRECTOR M/S BERGER PAINTS INDIA LTD., S/O KALICHARAN ROY, AGED ABOUT 47 YEARS R/AT FLAT NO.3D, BLOCK NO.1, 10 CONVENT ROAD, PO/PS ENTALLY, KOLKATTA-700014 3. MR.SRIJIT DASGUPTA DIRECTOR AND CHIEF FINANCIAL OFFICER, M/S BERGER PAINTS INDIA LTD., ’BERGER HOUSE’, 129 PARK STREET, KOLKATTA-700017 4. MR.ANIRUDDHA SEN SR. VICE PRESIDENT & COMPANY SECRETARY M/S BERGER PAINTS INDIA LTD.
BERGER HOUSE, 129 PARK STREET, KOLKATTA-700017 5. MR. DINESH KUMAR VIRMANI VICE PRESIDENT-MATERIALS M/S BERGER PAINTS INDIA LTD.
’BERGER HOUSE’, 129 PARK STREET, KOLKATTA-700017 6. SAJAL SRIVASTAVA GENERAL MANAGER SALES -GIA, SOUTH M/S BERGER PAINTS INDIA LTD. 22, FORT, A STREET, K.R. ROAD, BENGALURU-560002 7. MR. RAJIB DE DEPUTY COMPANY SECRETARY C/O BERGER PAINTS INDIA LTD. 22, FORT, A STREET, K.R. ROAD, BENGALURU-560002 8. MR. V.L. KIRAN KUMAR S/O SATYANARAYANA MURTHY AGED ABOUT 40 YEARS C/O BERGER PAINTS INDIA LTD. 22, FORT, A STREET, K.R. ROAD, BENGALURU-560002 ... PETITIONERS (BY SRI: K.ARVIND KAMATH, SENIOR ADVOCATE A/W SRI: ANAND MUTTALLI, ADVOCATE) AND 1. STATE OF KARNATAKA BY MADIWALA POLICE STATION, REP BY S.P.P 2. MR.C. ANAND REDDY S/O SRI. CHINNASWAMY AGED ABOUT 38 YEARS R/AT NO.260 NEAR NANDI TOYOTA SHOWROOM GARVEBHAVI PALYA BANGALORE-560068 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: PADMANABHA MAHALE, SENIOR ADVOCATE A/W SRI: S.B. TOTAD, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET FILED BEFORE THE III-ACMM COURT, BENGALURU IN C.C. NO.4520/2015, PRODUCED AS ANNEXURE-A. AND QUASH THE ENTIRE PROCEEDINGS PENDING BEFORE THE III-ACMM COURT, BENGALURU IN C.C.NO.4520/2015, PRODUCED AS ANNEXURE-B.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners are aggrieved by the submission of charge sheet for the offences punishable under sections 285, 337, 427 of IPC and sections 3, 4 and 5 of Explosive Substances Act, 1908.
2. Petitioner Nos.1 to 7 (accused Nos.1 to 7) are the officers of M/s.Berger Paints India Ltd., in different capacities. Petitioner No.8 (accused No.8) was incharge of godown of the Company at Garvebavipalya Village, Hongasandra Village Panchayat, Begur Hobli, Bangalore South Taluk, Bangalore where the Company had stored paints and thinner. It is the case of the prosecution that on 08.11.2012 at about 10.00 a.m., a fire started in the godown of M/s.Berger Paints India Ltd, as a result, entire stock of materials kept in the godown were gutted and the fire extended to the upstairs of the building which gutted the entire garment shop run on the upstairs, leading to huge loss and damages.
3. Learned counsel for petitioners has taken up three fold contentions.
3(i) First, the allegations made in the complaint do not attract the ingredients of the offences under sections 285, 337, 427 of IPC and sections 3, 4 and 5 of Explosive Substances Act, 1908. It is not clear from the charge sheet as to the cause for fire and persons responsible for the fire. Under the said circumstances, prosecution of petitioners for the alleged mishap is illegal and without any basis.
3(ii) Second, petitioners are sent up for trial solely on the ground that they occupied managerial or other responsible position in the Company. None of the petitioners were involved in running of the day-to-day affairs of the godown. Vicarious liability cannot be fastened on the petitioners in the circumstances of the case. Hence, implication of petitioners for the alleged offences is contrary to the basic canons of criminal jurisprudence. In support of these submissions, learned counsel for petitioners has placed reliance on the following decisions:-
(a) Sunil Bharti Mittal vs. Central Bureau of Investigation AIR 2015 SC 923;
(b) Fakhruddin Ahmad vs. State of Uttaranchal and Anr., (2008)17 SCC 157;
(c) Pepsi Foods Ltd., & Anr. vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128;
(d) Dr.Sharda Prasad Sinha vs. State of Bihar, AIR 1977 SC 1754;
(e) Som Mittal vs. Govt. of Karnataka, AIR 2008 SC 1126 & (f) Maksud Saiyed vs. State of Gujarat & Ors., (2008)5 SCC 668.
3(iii) Third, the provisions of Explosive Substances Act are not applicable to the facts of the case as the material on record does not disclose any explosive substances stored and kept in the godown. There is no material to show that any of the materials kept in the godown were meant for causing explosion. In the said circumstances, the very invocation of provisions of the Explosive Substances Act is baseless and liable to be quashed.
3(iv) Learned counsel further contended that the complainant has already taken recourse to civil remedy for redressal of his grievance by filing a suit in O.S.No.9248/2015 for damages. Owner of upstairs building has also sought for damages by filing civil suit in O.S.No.9246/2015. Under the said circumstances, adequate remedy having been availed by the aggrieved persons, initiation of criminal process is totally unwarranted and liable to be quashed in exercise of jurisdiction under section 482 Cr.P.C.
4. Refuting the above contentions, learned Senior Counsel appearing for respondent No.2 highlighted the pleadings made in the petition and pointed out that the petitioners have admitted in the petition that explosive substances were stored in the godown. There is no dispute that fire had started in the godown of the petitioners. Under the said circumstances, there is prima facie material to show that petitioners have committed offences under the provisions of sections 285, 337, 427 of IPC. The nature of materials stored in the godown attract the provisions of Explosive Substances Act. As such, there is no reason to quash the proceedings initiated against petitioners. Thus he seeks to dismiss the petition.
5. Learned Addl. SPP appearing for the State has also argued in line with the above submissions and sought for dismissal of the petitioners.
6. Considered the submissions and perused the records.
7. Insofar as invocation of provisions of Explosive Substances Act is concerned, it is necessary to note the expression “Explosive Substances” is defined under section 2 of Explosive Substances Act, 1908 as under:-
2(a) the expression “explosive substance” shall be deemed to include any material for making any explosive substance, also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
Section 3 of the said Act provides for punishment for causing explosion likely to endanger life or property and section 4 of the Act deals with punishment for attempt to cause explosion or for making or keeping explosive with intent to endanger life or property.
8. The allegations made in the charge sheet indicate that alleged fire had taken place on account of storage of paints and thinner beyond the storage capacity. It is not the case of the prosecution that said materials were stored in the godown with intent to cause any explosion within the meaning of Explosives Substances Act, 1908. In order to make out the offences under the provisions of Explosive Substances Act, explosives should be used or intended to cause explosion. In the absence of any such allegation, in my view, the invocation of provisions of sections 3, 4 and 5 of the Explosive Substances Act in the instant case cannot be sustained.
9. The District Magistrate appears to have granted consent for prosecution of petitioners for the above offences without considering the material on record and without assigning any reasons. The consent accorded for prosecution of the petitioners does not reflect any application of mind or consideration of the material, making out the offences under the provisions of Explosive Substances Act. As such, prosecution of petitioners for the offences under sections 3, 4 and 5 of Explosive Substances Act is liable to be quashed.
10. Insofar as the offences under the provisions of IPC are concerned, the allegations made in the charge sheet and the material produced in support thereof prima facie disclose that fire had started in the godown which was in the occupation of M/s.Berger Paints India Ltd., The said godown which was under the immediate control of accused No.8 who was then the incharge of affairs of the said godown. However, insofar as other petitioners are concerned namely accused Nos.1 to 7 are concerned, they are implicated for the alleged offences only on the ground that they were occupying managerial position in different capacities in said Company. In this context, it is relevant to note that the Company itself is not made an accused. Under the said circumstances, accused Nos.1 to 7 cannot be fastened with any criminal liability for the alleged occurrence.
11(i) Law is now well settled that, in the absence of any provision under the statute, a Director of the Company or employee cannot be held to be vicariously liable for any offence committed by the Company itself.
11(ii) In S.M.S. Pharmaceuticals vs. Neeta Bhalla, (2005) 8 SCC 89, the Hon’ble Supreme Court has laid down as under:-
8. … There is no universal rule that a Director of a company is in charge of its everyday affairs. We have discussed about the position of a Director in a company in order to illustrate the point that there is no magic as such in a particular word, be it Director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary.”
11(iii) In Keki Hormusji Gharda vs. Mehervan Rustom Irani, (2009) 6 SCC 475, at para 17, it is held that:
“17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.”
In the light of above provisions and in view of specific allegation made in the charge sheet that, at the relevant time, the godown was under the immediate control and supervision of petitioner No.8 namely accused No.8, in my view, prosecution of petitioner Nos.1 to 7 namely accused Nos.1 to 7 for the alleged offences under the provisions of IPC also cannot be sustained.
As a result, petition is allowed-in-part.
(i) Petition filed by petitioner Nos.1 to 7/accused Nos.1 to 7 is allowed. Charge sheet laid against petitioner Nos.1 to 7 namely accused Nos.1 to 7 in C.C.No.4520/2015 and the consequent proceedings on the file of learned III Addl. C.M.M., Bangalore, for the offences under sections 3, 4 and 5 of Explosive Substances Act, 1908 and sections 285, 337 and 427 of IPC are quashed in so far as accused Nos.1 to 7 are concerned.
(ii) Petition filed by petitioner No.8/accused No.8 is allowed-in-part. Charge sheet laid against petitioner No.8 namely accused No.8 in C.C.No.4520/2015 on the file of learned III Addl. C.M.M., Bangalore, for the offences under sections 3, 4 and 5 of Explosive Substances Act, 1908 is quashed. Prosecution of petitioner No.8/accused No.8 shall continue only for the offences under section 285, 337 and 427 of IPC.
(iii) Liberty is reserved to petitioner No.8/accused No.8 to seek for discharge before the trial court on such grounds available under law.
Sd/- JUDGE Bss