Ajay Kapur vs State of H.P

Sureshwar Thakur, J.

1.The impugned orders, are, a sequel, to, an application preferred by the complainant/respondent herein, before the learned Judicial Magistrate

concerned. Through, the application moved before the learned Magistrate concerned, a prayer was made for hence substituting, in the apposite

complaint, the name of one Ajay Kapur, in place of Mr. A.L. Kapur. The necessity for casting the aforesaid application, before the learned Magistrate

concerned, was a sequel, of this Court, proceeding, to, in Cr.MMO No. 275 of 2017, make an order, for, deletion in the apposite complaint, the name

of, one, A.L. Kapur.

2.It appears that in the garb of the orders pronounced upon the aforesaid Cr.MMO No.275 of 2017, the application at hand, was, constituted by the

complainant/respondent, before the learned Judicial Magistrate 1st Class, Nalagarh. Even if assumingly, this Court while making a pronouncement,

upon, the aforesaid Cr.MMO, had ordered for the deletion, in the apposite complaint, the name of one A.L. Kapur, and with the application at hand,

being subsequently cast, may yet give some leverage to the respondent/complainant, to make an espousal, (a) that the orders impugned before this

Court prima facie, hence, not acquiring any stain of any illegality. However, for making, a, complete determination with respect to illegality, if any,

ingraining, the orders impugned before this Court, dehors the factum of this Court recording, the aforesaid order upon Cr.MMO No. 275 of 2017, it is

also imperative to adjudge, (b) whether in garb thereof, the complainant/respondent, yet omitting to beget compliance vis-a-vis the apposite statutory

provisions, (c) and, irrespective of the factum of the application, being purportedly not cast within the domain, of the apposite statutory provisions

appertaining vis-a-vis the required purpose.

3.A reading of the application, unfolds qua though, it concerting to seek, substitution, in the apposite application, of one Ajay Kapur instead of A.L.

Kapur, (i) thereupon, the aforesaid simplicitor prayer, may hence be invested with an aura of legality, even if it is purportedly rested, upon, the orders

pronounced by this court in Cr.MMO No. 275 of 2017, only upon evident satiation, being meted vis-a-vis the mandate of Section 319 of the Cr.P.C.,

(ii) conspicuously, when the aforesaid application is apparently, cast within the domain of Section 319 of the Cr.P.C., (iii) reiteratedly, hence, the

validity(ies), of, orders pronounced thereon, is to be tested, especially, on anvil of evident compliance(s) being begotten vis-a-vis the mandate(s)

enshrined therein. Sequel, of the aforesaid inference(s), is, of this Court being hence enjoined, to, extract the relevant provisions, borne in Section 319

of the Cr.P.C., provisions whereof stand extracted hereinafter:-

“319. Power to proceed against other persons appearing to be guilty of offence.

(1)Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed

any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he

appears to have committed.

(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose

aforesaid.

(3)Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or

trial of, the offence which he appears to have committed.

(4)Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the

offence upon which the inquiry or trial was commenced.â€​

(a)readings whereof discloses, investing of statutory powers in the court concerned, to, on evidence erupting, during, the course of inquiry or trial, of

an offence, vis-a-vis commission, of, an offence by any person not earlier arrayed as accused, (b) thereupon, the person not initially arrayed, as an

accused, being enjoined to be added, as an accused, alongwith the already arrayed accused. However, hereat, even before commencement of the trial

vis-a-vis the apposite complaint, the instant application was constituted, before, the learned trial Magistrate concerned, (c) with a specific prayer

therein of with prosecution sanction being nowat accorded vis-a-vis Ajay Kapur, his hence being ordered to be substituted in the apposite complaint, in

place of one A.L. Kapur. Apparently, hence, with the mandate of Section 319 of the Cr.P.C., enjoining, the addition of a person, as an accused along

with the already arrayed accused, upon apt evidence surfacing against him, during, the course of holding of an inquiry or trial, (d) thereupon, the

continuation of A.L. Kapur, as an accused, in the apposite complaint, rather was peremptory, for validating any order qua one Ajay Kapur being

added alongwith him as an accused, in the apposite complaint, (e) whereas, the deletion of Mr. A.L. Kapur has rather rendered unworthwhile the

mandate thereof, besides evidently compliance therewith is not meted

4.Even if assumingly, (a) subsequent to this Court making a pronouncement, upon, the aforesaid Cr.MMO,, the apposite prosecution sanction, was

accorded vis-a-vis one Ajay Kapur, his being the principal offender, (b) yet the apposite motions available, for recourse, by the

respondent/complainant, were, may be comprised, in institution of a complaint afresh, against him, rather than, the respondent/complainant, through, an

application purportedly, cast within the ambit of Section 319 of the Cr.P.C., seeking substitution of one A.L. Kapur, by one Ajay Kapur, (c) visibly

when hence the aforesaid substitution rather effaces, from, the array, of, accused mentioned in the complaint, the sole accused therein, whereas, only

on his being continued to be retained therein, as an accused, (d) hence would alone empower the respondents/complainant, to, on eruption of any apt

evidence against the another accused, hence seek his addition, along with A.L. Kapur, in the apposite complaint. Consequently, with the apposite

mandate applicable hereat, when has hence been visited with gross infraction(s), thereupon, the orders impugned before this Court, and, purportedly

made within the mandate of Section 319 of the Cr.P.C., mandate whereof, for reasons aforestated stands infringed, rather necessitate interference by

this Court.

5.During the course of hearing of this petition, the learned Additional Advocate General, has drawn attention of this Court, to the mandate comprised,

in Section 101 of the Factories Act, 1948 (hereinafter referred as the Act), substantive provisions, whereof stand extracted hereinafter:-

“101. Exemption of occupier or manager from liability in certain cases.- Where the occupier or manager of a factory is charged with an offence

punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in

writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for

hearing the charge;, and if, after the commission of the offence has been proved, the occupier or manager of the factory, as the case may be, proves

to the satisfaction of the Court-

(a)that he has used due diligence to enforce the execution of this Act, and

(b)that the said other person committed the offence in question without his knowledge consent or connivance, that other person shall be convicted of

the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case

may be, shall be discharged from any liability under this Act in respect of such offence:â€​

(a)and on anvil thereof, he urges that hence the deletion, of, one A.L. Kapur as an accused, in the complaint, and his being ordered, to substituted by

one Ajay Kapur, rather falling within its ambit, (b) whereupon, he further canvasses of infirmity if any, arising from the aforesaid reasons, being hence

cured, rendering hence the impugned orders before this Court, to acquire a tinge of validity. However, the aforesaid submission is outrightly rejected,

(c) apparently, when a close reading of its mandate, brings to the fore, the apparent fact of its mandate evidently warranting satiation(s) being, meted

thereto, comprised in (d) of the person against whom the complaint is filed, being charged with the offence punishable under the Act, whereupon, his

being entitled to make an application, within, domain(s) thereof, for adding alongwith him any other person, given the latter being the actual offender.

However, with A.L. Kapur, yet being not charged, rather his being deleted, and, obviously when he has not within the domain of Section 101 of the

Act, rather make a complaint, with the disclosures therein, of one Ajay Kapur being the principal offender, (e) rather with the respondent/complainant,

suo motu concluding, of the apposite offence, rather being committed by one Ajay Kapur, (f) thereupon, the latter proceeding, to, make an endeavour

to substitute Ajay Kumar in place of A.L. Kapur, as an accused in the apposite complaint, renders hence the aforesaid endeavour to also fall outside,

the ambit of Section 101 of the Act. In summa the aforesaid inferences, constrain a further conclusion,(i) of with the apposite application being

purportedly, cast within the domain of Section 319 of the Cr.P.C., and, within the domain of Section 101 of the Act, and, its not evidently satiating

ingredients thereof, (ii) and also with exercise of jurisdiction by the learned trial Magistrate rather purportedly falling within domains thereof, hence

rendered the apt exercise, of jurisdiction, to be vitiated.

6.For the foregoing reasons, the instant petition is allowed and the order impugned before this Court, is quashed and set aside. The parties are directed

to appear before the learned trial Court on 11th May, 2018. All pending applications also stand disposed of. Records be sent back forthwith.