SOM MITTAL Vs. GOVERNMENT OF KARNATAKA

JUDGEMENT

(1.) Government of Karnataka represented by Senior Labour Inspector, 8th Circle, Bangalore, lodged a complaint under Section 200 of the Code of Criminal Procedure against the appellant, who was the Managing Director of M/s. Hewlett Packard Global Soft Ltd., in the Court of the Metropolitan Magistrate (TC-3), Bangalore, for taking cognizance of an offence punishable under Section 30(3) of the Karnataka Shops and Commercial Establishments Act. 1961 ('Act' for short) for violation of Section 25 of the said Act. Learned Magistrate took cognizance by order dated 30-12-2005 and directed issue of notice to the appellant. The appellant filed a petition under Section 482 of Cr.P.C. for setting aside the said order dated 30-12-2005 and for quashing the complaint. The High Court, by order dated 28-3-2006, rejected the prayer for quashing the complaint, but altered the offence in respect of which cognizance was taken as one under Section 30(1) read with Section 25 of the said Act. The said order of the High Court was challenged by the appellant in this appeal.

(2.) The appeal was heard by a Bench consisting of H. K. Sema and Markandey Katju, JJ. By the main judgment, dated 29-1-2008 Sema, J. dismissed the appeal, making it clear that the court was not expressing any opinion on the merits of the case and the learned Magistrate shall decide the maintainability of the complaint at the time of framing of the charge uninfluenced by any observations made by this Court or the High Court. In the course of his judgment, Sema, J. observed :

(3.) In his concurring judgment, Katju, J. agreed that the appeal should be dismissed without expressing any opinion on merits. He stated that he was rendering a separate opinion as he was not in agreement with the view expressed by Sema, J. that the power under Section 482 of Cr.P.C. should be used only in the "rarest of rare cases", though he agreed with the observation that the said power should be used sparingly. He was of the view that the words 'rarest of rare cases' are used only with reference to the death penalty for an offence under Section 302, IPC (See Bachan Singh v. State of Punjab, AIR 1980 SC 898) and the use of the said words was inappropriate while referring to the scope of exercise of power under Section 482. Paras 1 to 16 of his judgment related to the criminal appeal. However in paras 17 to 39 of his judgment, the learned Judge expressed concern over the situation prevailing in Uttar Pradesh on account of omission of Section 438. Cr.P.C. relating to anticipatory bail by an amendment to the Code by Section 9 of U.P. Act 16 of 1976 and the consequential hardship created for the public and difficulties caused to the Allahabad High Court. He made a recommendation to the U.P. Government to immediately issue an ordinance repealing Section 9 of U.P. Act 16 of 1976 so as to restore Section 438, Cr.P.C. in Uttar Pradesh empowering the High Court and Sessions Courts to grant anticipatory bail. He directed the Registry of this Court to send a copy of his judgment to the Chief Secretary, Home Secretary and Law Secretary of State of U.P. and also to the Registrar General of the Allahabad High Court and the President/ Secretary of Allahabad Bar Association, Allahabad High Court Advocates' Association and Oudh Bar Association forthwith. He also referred to the prevailing practice of police arresting those suspected of involvement in a crime and the directions issued by this Court in Joginder Kumar v. State of U.P., 1994 (4) SCC 260, in regard to the procedure to be followed when arresting a person, and directed that copies of his judgment be sent to the Chief Secretaries, Home Secretaries and Law Secretaries of all State Governments and Union Territories with a direction to ensure strict compliance with said decision.