BASUDEVA PANIGRAHI, J. - (1.) THESE cases are taken up together and disposed of hereunder: The petitioner No. 2 is a private limited Company under the name and style Associated Indian Enterprises (P) Limited. The petitioner No. 1 was the erstwhile Managing Director of the Company. The Company was covered under the provision of the Employees' Provident Funds and Miscellaneous Provisions Act. 1952. Admittedly there was some dues outstanding to be payable to the opposite parties. But of course, those amount had been already paid back before lodging of the criminal case against the petitioners. Notwithstanding payment of such contributions, the learned Magistrate framed charges against the petitioner No. 1 under Sections 14(1A) and 14(2) of the E.P.F. and Miscellaneous Provisions Act. 1952. The opposite party No. 2 had. However, led evidence before the Court below who on elaborate discussion of evidence was, However, inclined to record an order of conviction against both the petitioners sentencing the petitioner No. 1 to suffer S.I. for three months and both were directed to pay fine of Rs. 1.000/ - each. Against the order of sentence and conviction passed by the learned Magistrate the petitioners preferred an appeal before the learned Sessions Judge Alipore which was however, disposed of by the learned Additional Sessions Judge who reduced the sentence of Simple Imprisonment by directing both the parties to pay a fine of Rs. 1.000/ - each. Therefore being aggrieved by the concurrent finding of conviction the petitioners have filed the above revisions.
(2.) MR . Bhattacharya learned advocate appearing for the petitioners has strongly urged that both the Courts below have concurrently erred in recording an order of conviction and sentence in -as -much as there was no charge framed against the Company and also there was no representation before the learned Magistrate. He indicated that it is open to the authority to either chose to proceed against the Company, Director or both. In this case the Corporation, opposite party No. 2 had However preferred to proceed against the both. Therefore, the Company ought to have been properly represented before the learned Magistrate, also there should be proper charge framed against it. In the absence of such charge, the order of conviction and sentence against the Company must be held illegal. Learned advocate appearing for the State has strongly urged basing on the provisions of Section 464. Cr. P.C. It is true that no sentence or order by a competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed unless there was a failure of justice occasioned to the accused. In this case nothing appears from the record as to who was representing the Company in course of the trial. Admittedly no charge was also framed which is evident from the order passed by the Courts below
(3.) MR . Bhattacharya in this connection has placed reliance upon a reported judgment of this Court passed by a Division Bench in 1978 Vol. 1 Prevention of Food Adulteration Cases (Durgamata Oil Mill and another v. Corporation of Calcutta). On a careful reading of the judgment I found that exactly similar situation had arisen in the above case. The provision of Section 17 of the Food Adulteration Act, 1954 is also quite akin to the provisions of Sections 14(1A) and 14(2) of the Employees' Provident Funds and Miscellaneous Provisions Act. 1952. In the above judgment it has been held as follows: ''The first contention raised on the side of the appellant No.1 the Firm is that the learned Magistrate acted without jurisdiction and illegally to convict the firm in the absence of any charge against it. Admittedly no charge was framed against the firm. The charge was levelled against the appellant No.2. Kishori Mohan Section 17 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to, as the Act), speaks about the offences by companies. When can offence under this Act has been committed by a Company every person who at the time the offence was committed was in charge of and 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. There is a proviso of course we are not concerned with that. The learned Magistrate, it appears from his judgment, observes that this omission is a technical one and in spite of that he has convicted the Firm. Now the Company has been defined in Section 17, which says that for this section it means any body - corporate and includes a firm or other association of individuals. Clearly therefore, the firm before us being a partnership firm comes under the definition of the Company. Section 17 of the Act says that no person shall himself or by any person on his behalf manufacture for sale of store or sell or distribute any adulterated food. There is prohibition of selling storing or distributing adulterated food. Section 16 of the Act relates to penalties under the provision of the Act. According to Section 16(1)(a)(i), if any person whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores, sells or distributes any article of food which is adulterated shall be punishable with imprisonment as mentioned in the section itself. Section 17 speaks about, as we have already remarked, the offence, which can be committed by Companies. The firm being a Company under the definition is liable to punishment if there is commission of any offence under the Act. Now for the purpose of trial, charges are to be framed when a person is proceeded against on the allegation of commission of an offence. Without charge there cannot be any trial in a case like the present one and there is no dispute about it, If any person is to, be proceeded against, certainly he must know the charges for which he is answerable or for which the prosecution is to prove its own case against him. On this point we have asked Mr. Bose and Mr. Mukherjee to say how a person can be convicted without being charged. When the Firm will be accused of an offence an opportunity must be given to defend itself and for that purpose proper representation of the Firm will be necessary. Unless the Firm knows that it is answerable or it is to be tried there can be no proper arrangement for representation of the Firm, is a distinct legal entity and therefore separate charge must be framed. When there was no charge or notice to the Firm that it would be tried, there can be no question of conviction against the Firm, Of course, Mr. Bose and Mr. Mukherjee could not reply to that specific question. We are afraid, we cannot accept the finding of the learned Magistrate that omission of the charge is a technical defect. Rather the conviction without charge is a conviction without any basis and utterly illegal and unjust. We find that the conviction of the appellant No.1 was improper and illegal and must be set aside." In view of the aforesaid observation of the Division Bench I have no other option but to accept the contention of Mr. Bhattacharya. Accordingly the Company is, therefore acquitted of the charges under Section 14(1A) and Section 14(1) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.;