IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7641 OF 2013 C/W CRIMINAL PETITION NO.5729 OF 2013 IN CRIMINAL PETITION NO.7641 OF 2013 BETWEEN:
1. M/S. METRO CASH & CARRY INDIA PRIVATE LIMITED METRO DISTRIBUTION CENTRE NO. 18/1, 18/2, KONANKUNTE VILLAGE, UTTARAHALLI HOBLI BANGALORE SOUTH TALUK KANAKAPURA ROAD BANGALORE-560062 REPRESENTED BY ITS AUTHORISED SIGNATORY MR VIJAY GOWDA.
SENIOR DEPARTMENT MANAGER-HR 2. SRI VISHAL KAPOOR SON OF MAHARAJ KRISHEN KAPOOR AGED ABOUT 48 YEARS GENERAL MANAGER METRO CASH & CARRY INDIA PRIVATE LIMITED METRO DISTRIBUTION CENTRE NO. 18/1, 18/2, KONANKUNTE VILLAGE, UTTARAHALLI HOBLI BANGALORE SOUTH TALUK KANAKAPURA ROAD BANGALORE-560062 ... PETITIONERS (BY SRI: S.MAHESH, ADVOCATE A/W SRI: ANIND THOMAS, ADVOCATE) AND STATE OF KARNATAKA THROUGH SENIOR LABOUR INSPECTOR 28 CIRCLE KARMIKA BHAVAN BANGALORE-560029 ... RESPONDENT (BY SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO (a) QUASH THE ORDER OF ISSUANCE OF NON BAILABLE WARRANT DATED:30.11.2013 IN C.C.NO.48/2012 (ANNEXURE-B) AND ALL FURTHER PROCEEDINGS AGAINST THE PETITIONERS PENDING BEFORE THE HON'BLE V MMTC, BANGALORE. (b) QUASH THE ORDER DATED:30.01.2012 (ANNEUXRE-B) TAKING COGNIZANCE IN C.C.NO.48/2012 AND ALL FURTHER PROCEEDINGS PENDING BEFORE THE V MMTC, BANGALORE. (c) QUASH THE CRIMINAL COMPLAINT NO.48/12 (ANNEXURE-A) AND ALL FURTHER PROCEEDINGS AGAINST THE PETITIONERS PENDING BEFORE THE V MMTC, BANGALORE.
IN CRIMINAL PETITION NO.5729 OF 2013 BETWEEN:
MR RAJEEV BAKSHI SON OF MR.BALAKRISHNA BAKSHI, AGED ABOUT 56 YEARS, MANAGING DIRECTOR OF M/S.METRO CASH & CARRY INDIA PRIVATE LIMITED, HAVING ITS REGISTERED OFFICE AT NO.26/3, INDUSTRIAL SUBURBS, "A" BLOCK, SUBRAMANYANAGAR, WARD NO.9, BANGALORE-560055. ... PETITIONER (BY SRI: S.MAHESH, ADVOCATE A/W SRI: VIVEK P BAJAJ, ADVOCATE) AND STATE OF KARNATAKA THROUGH SENIOR LABOUR INSPECTOR, 28 CIRCLE KARMIKA BHAVAN, BENGALURU 560001. ... RESPONDENT (BY SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO (a) QUASH THE ORDER DATED:30.01.12 (ANNEXURE-B) TAKING COGNIZANCE IN C.C.NO.48/12 AND ALL FURTHER PROCEEDINGS PENDING BEFORE THE MMTC-V, BANGALORE, PENDING DISPOSAL OF THE PRESENT PETITIONER. (b) QUASH THE ORDER OF ISSUANCE OF NON-BAILABLE WARRANT DATED:12.09.2013 IN C.C.NO.48/12 (ANNEUXRE-B) AND ALL FURTHER PROCEEDINGS AGAINST THE PETITIONER PENDING BEFORE THE MMTC-V, BANGALORE, PENDING DISPOSAL OF THE PRESENT PETITION. (c) QUASH THE CRIMINAL COMPLAINT NO.48/12 (ANNEXURE-A) AND ALL FURTHER PROCEEDINGS AGAINST THE PETITIONER PENDING ON THE FILE OF THE MMTC-V, BENGALURU.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought to quash the non-bailable warrant dated 30.11.2013 issued against them in C.C.No.48/2012; to quash the order dated 30.1.2012 taking cognizance in C.C.No.48/2012 and to quash the criminal complaint No.48/2012 pending on the file of the V Metropolitan Magistrate Traffic Court, Bengaluru.
2. Petitioner No.1 – M/s. Metro Cash and Carry India Pvt. Ltd., established a private market yard at its distribution centre at Kanakapura Road Unit and obtained a licence to operate private market yard under the provisions of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 for vending fruits, vegetables and flowers.
3. On 11.7.2011 around 9.00 p.m. the Senior Labour Inspector visited the unit of the petitioners at Kanakapura Road and carried out inspection in the presence of the Senior Floor Manager. It is alleged that the petitioners failed to furnish the details of the employees/workers of the company. A “tipany” was prepared at the spot and served on the Senior Floor Manager. Petitioner No.1 submitted compliance report on 19.7.2011. The respondents having not been satisfied with the compliance report, issued a show cause notice to the petitioners as to why prosecution should not be initiated against them. In response to the show cause notice, petitioner No.1 submitted a reply and sought exemption under Sections 11 and 12 of the Karnataka Shops and Commercial Establishments Act, 1961 (for short ‘Act’). However, the respondent lodged a complaint against the petitioners under Section 200 Cr.P.C. r/w Section 31 of the Act seeking prosecution of the petitioners for violation of Section 11 of the Act.
4. Heard the learned counsel for the petitioners and the learned Additional State Public Prosecutor appearing for the respondent –Senior Labour Inspector .
5. The first plank of the argument of the learned counsel for the petitioners is that under Section 3(1(h) of the Act, the persons occupying positions of management in any establishment falling under the Act are exempted under the Act and hence, the prosecution of the petitioner in Crl.P.No.5729/2013 is not maintainable. Secondly, by virtue of Section 3(2)(e) of the Act, the establishment run by petitioner No.1 in Crl.P.No.7641/2013 is a shop dealing mainly in meat, fish, poultry, eggs, dairy products (except ghee), bread, confectionery, sweets, chocolates, ice, ice- cream, cooked food, fruits, flowers, vegetables or green fodder. In view of Section 3(2)(e) of the Act, the rigors of Section 11 are not applicable to the establishment of the petitioners and hence, on both these grounds, the proceedings initiated against the petitioners are liable to be quashed.
6. Refuting the above submissions, learned Additional State Public Prosecutor has laid emphasis on the word “mainly” appearing in “Section 3(2)(e) of the Act” and would contend that the exemption under the Act is available only in respect of the shops dealing “mainly” or exclusively in meat, fish, poultry, eggs, fruits, flowers and vegetables etc., In the instant case, petitioners are also dealing in other food and non-food items and therefore in the absence of any material to show that the petitioners deal exclusively in commodities mentioned in Section 3(2)(e) of the Act, they are liable for prosecution for the alleged offences. Further, he submitted that the documents produced by the petitioners indicate that the petitioners themselves have sought for exemption to keep the establishment open on all 365 days of the year and for 24 hours of the day and the exemption was accorded vide notification dated 22.11.2013, which goes to show that as on the date of inspection no such exemption was granted to the petitioners. Therefore, there is a clear case for prosecution of the petitioners for violation of Section 11 of the Act.
7. In the light of the contentions urged by the parties, the only point that requires to be considered is:
“Whether the establishment run by the petitioners was exempted under Section 3(2)(e) of the Act as on 11.7.2011?
8. Section 3 of the Act deals with Exemptions. Sub- Section (2) thereof provides that, ‘Nothing contained in Section 11 or sub-Section (1) of Section 12 shall apply to, - (a).. .. ..
(b).. .. ..
(c).. .. ..
(d).. .. ..
(e) shops dealing mainly in meat, fish, poultry, eggs, dairy produce (except ghee), bread, confectionery, sweets, chocolates, ice, ice-cream, cooked food, fruits, flowers, vegetables or green fodder;
9. In the instant case, learned counsel for the petitioners has produced the licence issued by the Directorate of Agricultural Marketing, Bengaluru dated 7.7.2008. Under the said licence, M/s. Metro Cash and Carry India Pvt. Ltd., is granted licence for establishment of Private Market Yard, (Category 87b(ii)) in the market area of Special Agricultural Produce Market Committee for Fruits and Vegetables, Bengaluru for the marketing of notified fruits, vegetables and flowers subject to the provisions of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act 1966 and Rules 1968 subject to the terms and conditions prescribed therein. But this licence is issued under the provisions of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act 1966 and not under the provisions of the Karnataka Shops and Commercial Establishments Act, 1961.
10. Whereas, the learned Additional State Public Prosecutor has referred to the letter dated 27.7.2011 issued by the METRO Cash and Carry India Pvt. Ltd., to the Labour Commissioner, Bengaluru wherein it is specifically stated that the Metro Group based in Dusseldorf, Germany is one of the world’s largest trading and distribution companies in the wholesale and retail industry. “The Wholesale Center” offers under one roof at the best wholesale prices with guaranteed quality, large food and non-food assortments.
In the said communication it is stated that the petitioners are the world leader in the wholesale cash and carry business. They offer the following amenities and services to the retailers, shopkeepers (kirana stores), hotels, restaurants, catering companies, offices, establishments and other business customers:-
. Fresh Fruit and Vegetables . Fresh meat . Fresh Fish . Eggs, Bread, Fresh Ghee and Butter . Milk, Dairy and Frozen products . Ready to eat and ready to fry foods . Other perishables like Atta, Flour, Fresh Wheat etc . Various groceries and items of common household consumption . Apparels . Pharmaceutical products . Household electrical and electronic appliances 11. From the above it is clear that the petitioners are not only dealing with fruits and vegetables, but also dealing in various grocery items, common household consumption articles, apparels, pharmaceutical products, household electrical and electronic appliances. The exemption granted under Section 3(2)(e) of the Act is applicable only when the shops are dealing mainly in meat, fish, poultry, eggs, dairy produce (except ghee), bread, confectionary, sweets, chocolates, ice, ice-cream, cooked food, fruits, flowers, vegetables or green fodder.
12. Section 11 of the Act stipulates that, “(1) No establishment shall on any day, be opened earlier than and closed later than such hours as may be fixed by a notification issued by the State Government:
Provided that any customer who was being served or was waiting to be served in any establishment at the hour fixed for its closing may be served during the quarter of an hour immediately following such hour.
(2) Before issuing a notification under sub - section (1), the State Government shall hold an enquiry in the prescribed manner.
(3) The State Government may, for the purpose of this section, fix different hours for different establishments or different classes of establishments or for different areas or for different times of the year.”
13. In view of Section 3(2)(e) of the Act, only the establishment which is dealing exclusively in the articles mentioned therein are exempted from the rigors of Section 11. This provision has to be understood in the light of the object and the purpose of the Act. The Act is enacted to provide for regulations of conditions of work and employment in shops and commercial establishments. It is with this intention the working hours have been specified and Section 11 has been enacted to prohibit keeping open the establishment beyond the hours specified in the notification issued by the State Government. Under the said circumstance, the contention of the learned counsel for the petitioners that by virtue of Section 3(2)(e) of the Act, petitioners are not bound by Section 11 of the Act cannot be accepted.
14. If the argument of the learned counsel for the petitioners is accepted, it would render the provisions of Section 11 of the Act otiose and redundant and the very object and purpose of the Act would be defeated. The exemption to open the establishment throughout the day is granted only to such shops which deal only with food items like meat, fish, flowers or vegetables but not to the establishment which deal in household articles and other commodities. If the interpretation placed by the learned counsel is accepted, almost all the shops and establishments would fall outside the purview of the Act. Therefore, I am not inclined to accept the argument canvassed by the learned counsel for the petitioners. As the inspection report clearly points out that at the time of inspection, the petitioners had kept the establishment open and business activities were being carried on in the establishment contrary to the notification, respondent was justified in initiating action against the petitioners under Section 11 of the Act.
15. The contention urged by the petitioners that the proceedings initiated against them without taking cognizance of the offences also does not merit acceptance. The order sheet maintained by the learned Magistrate discloses that on receiving the complaint on 5.1.2012, the office had put up the papers for orders of the learned Magistrate. On 30.1.2012, the learned Magistrate passed an order under Section 204 of Cr.P.C. The order reads as follows:
“Order u/Sec. 204 of Cr.P.C.
The complainant Labour Inspector filed this complainant u/Sec. 200 of Cr.P.C. for the various violations/offences which are punishable u/Sec. 31 of K.S. & C.E. Act 1961.
Perused the papers.
After going through the complaint allegations, on looking to its enclosures prima facie, this court satisfied that there are sufficient grounds to register the criminal case against the accused and to direct the accused to undergo for trial. Accordingly, I pass the following:
ORDER Office is directed to register the criminal case against the accused and directed to issue summons to the accused, to be served by Jurisdictional P.S.I. (L & O), returnable by 21.02.2012.”
Though in the said order, the learned Magistrate has not stated in so many words that he has taken cognizance of the offences alleged against the petitioners, but the above order, clearly indicates that the learned Magistrate has adverted his mind to the facts of the case and has directed summons to the petitioners. There cannot be two opinions with regard to the proposition of law that without taking cognizance of the offence the concerned Magistrate has no jurisdiction to proceed in the matter. In the instant case, the records clearly indicate that before issuing summons to the petitioners, the learned magistrate has passed an order under Section 204 of Cr.P.C. The learned magistrate has passed the said order only after going through the complaint allegations and on looking to the annexures and prima facie satisfying himself as to the commission of the offence punishable under the Act. The expression ‘cognizance’ has not been defined either under the Karnataka Shops and Commercial Establishments Act or under the Code of Criminal Procedure. In legal parlance, it means, judicious application of mind of the Magistrate to the facts of the case with a view to take further action thereon. Cognizance should be taken at the initial stage, when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offences is disclosed. It is not necessary to say in so many words that the Magistrate has taken cognizance of the offences, as explained in Cref Finance Ltd. v. Shree Shanthi Homes (P) Ltd. reported in (2005)7 SCC 467 at para 10, that – “10.………………………………………………………… …………………………………………………………………………… …Even if we assume, though that is not the case, that the words “cognizance taken” were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence”.
In the same decision, it is further held that – “……………………………………These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry.”
16. In the light of the above proposition and in the facts and circumstances discussed above, in my view the impugned proceedings cannot be quashed on the purported contentions urged by the petitioners. Therefore, I do not find any justifiable reason to quash the proceedings initiated against the petitioner in Crl.P. No.7641/2013. Consequently, petition fails and the same is dismissed.
Liberty is reserved to the petitioners to seek for compounding the alleged offence, if desired, in which event the same shall be considered by the respondent/Senior Labour Inspector, in accordance with law.
17. Insofar as Crl.P.No.5729/2013 is concerned, petitioner-accused No.2 is described as the Managing Director of M/s. Metro Cash & Carry India Pvt. Ltd., In view of Section 3(1)(h) of the Act, persons occupying positions of management in any establishment are exempted from the application of the provisions of the Act. As such, accused No.2 cannot be prosecuted independently for the alleged offence in his capacity as the Managing Director of the said company.
As a result, I proceed to pass the following :
(i) Crl.P.No.7641/2013 is dismissed.
(ii) Crl.P.No.5729/2013 is allowed. The proceedings in C.C.No.48/2012 on the file of 5th Metropolitan Magistrate Traffic Court, Bengaluru are quashed, only in so far as accused No.2 (Sri.Rajeev Bakshi) is concerned.
Sd/- JUDGE Bkp