BADRI PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) (For himself and on behalf of P.S. Sahay, J.:- The three significant issues which arise in this reference to the Full Bench may be precisely formulated in the terms following :- 1. Whether section 35 of the Bihar Shops and Establishments Act, 1953 necessarily mandates that the company or the partnership firm must be arraigned simultaneously along with the Director, Partner, Manager or Secretary thereof for prosecutions for the contravention of the said Act?

(2.) Whether section 35 of the Bihar Shops and Establishments Act, 1953 inflexibly requires that the allegation that the Director, Partner, Manager or Secretary either exercised ultimate control over the affairs of the company or the partnership firm or was in immediate charge of the general management or control thereof must be pleaded in express terms in all complaints against them for offences in contravention of the said Act?

(3.) Whether J. S. Ram v. State of Bihar, 1976 BBCJ (HC) 213, V. Poddar v. State of Bihar, 1978 BBCJ (HC) 498 and Krishna Trading v. State of Bihar, 1979 BBCJ (HC) 94 and other precedents taking a similar view in the context of section 35 of the Bihar Shops and Establishments Act, 1953 lay down the law correctly? 2. The facts giving rise to the issues aforesaid are not in serious dispute and may be recounted briefly. Of the twelve petitioners, eleven are admittedly partners of the firm Messrs Vaishali Pictures, Rajendra Nagar, Patna whilst petitioner No. 12, Shri S. N. Singh, is the Manager thereof. On the 12th of December, 1980 the premises of Messrs Vaishali Pictures were inspected by Mr. Ram Pravesh Singh. Labour Superintendent and Inspective Authority, and he discovered certain contraventions of the Bihar Shops and Establishments Act, 1953 (hereinafter called the 'Act') and the rules framed thereunder. Subsequently, he preferred the complaint against the petitioners as partners and manager of M/s. Vaishali Pictures, though the said partnership firm in terms was not made a party to the proceedings. On 16th of April, 1981 the Chief Judicial Magistrate, Patna, took cognizance of the offence against the petitioners under section 34 of the Act and transferred the case to the Court of Shri H. Hassan, Judicial Magistrate, Ist Class, Patna, for trial. Aggrieved thereby, the present petition has been preferred for quashing the prosecution. 3. The salient grounds pressed in the present petition are that the partnership firm of Messrs Vaishali Pictures has not been made an accused in the complaint and is, therefore, not simultaneously arraigned along with the Partners and the Manager thereof: and further that the complaint does not expressly allege that the petitioners were persons responsible for or in charge of the business on that date and they either exercised ultimate control over the firm or were in immediate charge of the general management and control thereof. It is the stand that in a long line of decisions of this Court under the Act and those under section 10 of the Essential Commodities Act and analogous statutes, this Court has held that the prosecution cannot be sustained unless the company or the partnership firm is simultaneously charged for the offence and further the necessary averments incorporating the terms of section 2(5) of the Act are inflexibly made in the complaint itself.