- (1.) This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 for setting aside the order dated 14.12.2002 (Annexure P-1) and all the subsequent proceedings arising therefrom.
(2.) The case of the complainant, as stated in the complaint (Annexure P-2), in brief, is that on 15.6.1993, in the premises of M/s Aman Pesticide Sangowal Road Mehatpur, insecticide i.e. Maneozeb 75% w/w Batch No.93 04.x.046 manufactured by M/s Indofil Chemicals Company Bombay were checked. Samples were drawn from the said insecticide. One sample was sent to the analyst for analysis. The analyst, vide report dated 19.10.1993, opined that the samples did not conform to the relevant I.S. specifications in respect of its active ingredient content i.e. 82.7% against given strength 75% i.e. Hence, the sample was sub standard due to variation of 7.7%. In pursuance to the complaint, trial Court summoned the accused to face the trial. The petitioner moved an application for his discharge. Vide impugned order dated 14.12.2002 (Annexure P-1), the said application was dismissed. Hence, the present petition. Learned counsel for the petitioner has submitted that the petitioner has been impleaded as an accused being Sales Manager of M/s Indofil Chemicals Company, Bombay without impleading the company as an accused. Learned counsel has placed reliance on Aneeta Hada vs. M/s Godfather Travels & Tours Pvt. Ltd., 2012 2 RCR(Cri) 854, wherein the three Judge Bench of the Apex Court vide judgment dated 27.4.2012 in Criminal Appeal No.838 of 2008 has held as under:- 42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others, 1987 1 SCC 424 it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others., 2007 10 SCC 528 and Sarabjit Rick Singh v. Union of India, 2008 2 SCC 417 Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.
(3.) In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.;