NITU GUPTA Vs. STATE OF ODISHA (VIGILANCE)

JUDGEMENT

(1.) These petitions under Sec. 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') have been filed with a prayer to quash the proceedings emanating from V.G.R. Case No. 5(c) of 2013 arising out of Balasore Vigilance P.S. Case No. 30 of 2013, for alleged commission of offences u/s 13(2), r/w Sec. 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PCA') and u/s 420, 468, 409, 379, 411 and 120-B of Indian Penal Code 1860 (hereinafter referred to as 'IPC') which is pending in the Court of learned Special Judge Vigilance, Keonjhar. As the petition involves the same facts, they are being decided by this common judgment and order.

(2.) Shorn of unnecessary details, the facts of the present matter are as follows:

(3.) Learned Counsel for the petitioners Shri H.K. Mund vehemently submits that out of the 145 lessees who were found to have been allegedly involved in illegal mining, only B.K.Mohanty's lease hold area was scrutinised and criminally prosecuted along with a mere handful of others. Save and except in some specific cases, wherein the statute specifically incorporates the principle of vicarious liability, the principle cannot be extended to be applicable to all other Acts. The Indian Penal Code does not envisage the application of the principle of 'vicarious liability' to a person who is not directly charged for the commission of an offence, and a person therefore cannot be made an accused merely by reason of his official position. The counsel further urged that there was a huge difference between being a part of the management of a company and being 'in charge of the affairs of a company'. It was submitted that in order to launch prosecution against the officers of a company, the complainant/prosecution must make specific averments regarding the role played by each of the accused in the complaint which showcase that the officers of the company were 'in charge of the affairs of the company'. Therefore, the role of the accused has to be clearly, unambiguously and specifically mentioned in the complaint. A bald statement shall hold no water. There cannot be an automatic presumption against a Director. It was also put forth by the counsel that sec. 120-B of the IPC under which the present petitioners have been roped in, is a substantive offence and has to be proven independent of the other offences. The Counsel relied heavily on the decisions of the Hon'ble Supreme Court in Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 , S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 and Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475.