SURENDRA NATH SARKAR Vs. KALI PADA DAS

JUDGEMENT

(1.) These are two Rules calling upon the District Magistrate of Birbhum to show cause why certain proceedings taken against the petitioners for alleged offences against certain provisions of the Indian Companies Act and of the Indian Penal Code should not be quashed. The complainant is a policy-holder of a company known as Nabasakti Insurance Company which has been incorporated both under Act 7 of 1913 and Act 5 of 1912. The petitioner Surendra Nath Sarkar is the manager of the company. The ground upon which the rule was issued is that the Magistrate has no jurisdiction to take proceedings in these matters on a private complaint. Mr. S.K. Basu appeared in support of the rule. I may note that in Case No. 823 the allegation is one of a falsification of accounts and in Case No. 825 various offences are alleged to have been committed against the provisions of the Indian Companies Act. Mr. Basu contended that the new Indian Companies Act has made elaborate provisions for the investigation of offences in connexion with companies and for prosecution by the Advocate- General or the Public-Prosecutor. He asked us to say that in view of these elaborate provisions the intention of the Legislature was that prosecutions by private persons should not be allowed. The relevant Secs.are Section 141-A, Companies Act and Section 107, Insurance Act.

(2.) There is nothing in the actual terms of Section 141-A to justify any such inference.] That Section casts a duty upon the Advocate-General or the Public Prosecutor to cause proceedings to be instituted in certain circumstances. It also casts a duty upon the officers of the company to render assistance in connexion with any such prosecution. The terms of the Section are quite different from those, for example, of Secs.196 and 198, Criminal P.C., by which a bar is placed upon the jurisdiction of Criminal Courts. Mr. Basu, however based his argument not so much upon the terms of the Section as upon the fact that there is no Section containing provisions similar to those of Section 368, English Companies Act of 1929. That Section is in these terms: Nothing in this Act relating to the institution of criminal proceedings by the Director of Public Prosecutions shall be taken to preclude any person from instituting or carrying on any such proceedings.

(3.) It is thus clear that even apart from that Section it does not follow that a private prosecution would be barred under the English Act. The Section was merely inserted to put the matter beyond doubt. In this connexion Mr. Ohatterjee on behalf of the Crown drew our attention to certain decisions in connexion with the Fishery Acts Queen V/s. Cubitt (1889) 22 QBD 622; Anderson V/s. Hamlin (1890) 25 QBD 221. It was there held that private prosecutions under these Acts were barred. It is true that those decisions were based upon the actual words used in the relevant statutes. But it may well be that Section 368 was inserted in the English Act to place the matter beyond doubt. At any rate, in the absence of any specific provision in the Act itself, we cannot infer from the mere omission of a similar provision in the Indian Act that the intention of the Legislature was to bar private prosecutions. There wa3 no doubt at all that such prosecutions were permitted by the old Act.