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2019 Supreme(Kar) 1443
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
JOHN MICHAEL CUNHA, J.
M/s. Metro Cash & Carry India Private Limited and ors. – Petitioners
Versus
State Of Karnataka Through Senior Labour Inspector - Respondent
Criminal Petition No.7641 & 5729 OF 2013
Decided On : 03-04-2019
For the Petitioner:Sri. S.Mahesh, Advocate A/w Sri. Anind Thomas, Advocate
For the Respondent: Sri. Vijaya Kumar Majage, Addl. SPP
Headnote:
Criminal Procedure Code, 1973 - Section 200 - Karnataka Shops and Commercial Establishments Act, 1961 - Sections 11 and 12 - License to operate private market yard - Workers of company - Whether establishment run by petitioners was exempted Section Act – Held, Magistrate has not stated in so many words that he has taken cognizance offences alleged against petitioners but above order clearly indicates that Magistrate has adverted his mind to facts case and has directed summons to petitioners - There cannot be two opinions with regard to proposition of law that without taking cognizance of offence concerned Magistrate has no jurisdiction to proceed in matter - In instant case records clearly indicate that before issuing summons to petitioners magistrate has passed an order Section - Magistrate has passed said order only after going through complaint allegations and on looking to annexure and prima facie satisfying himself as to commission offence punishable Act - expression cognizance has not been defined either Karnataka Shops and Commercial Establishments Act or Code of Criminal Procedure - In legal parlance it means judicious application mind of Magistrate to facts of case with view to take further action thereon - Cognizance should be taken at initial stage when Magistrate peruses complaint with view to ascertain whether commission of any offences is disclosed - These are cases where Magistrate will refuse to take cognizance and return complaint to complainant - But if he does not do so and proceeds to examine complainant and such other evidence as complainant may produce before him then it should be held to have taken cognizance of offence and proceeded with inquiry – Petition allowed
ORDER :
Petitioners have sought to quash the non-bailable warrant dated 30.11.2013 issued against them in C.C.No.48/2012; to quash the order dated 30.1.2012 taking cognizance in C.C.No.48/2012 and to quash the criminal complaint No.48/2012 pending on the file of the V Metropolitan Magistrate Traffic Court, Bengaluru.
2. Petitioner No.1 – M/s. Metro Cash and Carry India Pvt. Ltd., established a private market yard at its distribution centre at Kanakapura Road Unit and obtained a licence to operate private market yard under the provisions of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 for vending fruits, vegetables and flowers.
3. On 11.7.2011 around 9.00 p.m. the Senior Labour Inspector visited the unit of the petitioners at Kanakapura Road and carried out inspection in the presence of the Senior Floor Manager. It is alleged that the petitioners failed to furnish the details of the employees/workers of the company. A “tipany” was prepared at the spot and served on the Senior Floor Manager. Petitioner No.1 submitted compliance report on 19.7.2011. The respondents having not been satisfied with the compliance report, issued a show cause notice to the petitioners as to why prosecution should not be initiated against them. In response to the show cause notice, petitioner No.1 submitted a reply and sought exemption under Sections 11 and 12 of the Karnataka Shops and Commercial Establishments Act, 1961 (for short ‘Act’). However, the respondent lodged a complaint against the petitioners under Section 200 Cr.P.C. r/w Section 31 of the Act seeking prosecution of the petitioners for violation of Section 11 of the Act.
4. Heard the learned counsel for the petitioners and the learned Additional State Public Prosecutor appearing for the respondent–Senior Labour Inspector .
5. The first plank of the argument of the learned counsel for the petitioners is that under Section 3(1(h) of the Act, the persons occupying positions of management in any establishment falling under the Act are exempted under the Act and hence, the prosecution of the petitioner in Crl.P.No.5729/2013 is not maintainable. Secondly, by virtue of Section 3(2)(e) of the Act, the establishment run by petitioner No.1 in Crl.P.No.7641/2013 is a shop dealing mainly in meat, fish, poultry, eggs, dairy products (except ghee), bread, confectionery, sweets, chocolates, ice, ice-cream, cooked food, fruits, flowers, vegetables or green fodder. In view of Section 3(2)(e) of the Act, the rigors of Section 11 are not applicable to the establishment of the petitioners and hence, on both these grounds, the proceedings initiated against the petitioners are liable to be quashed.
6. Refuting the above submissions, learned Additional State Public Prosecutor has laid emphasis on the word “mainly” appearing in “Section 3(2)(e) of the Act” and would contend that the exemption under the Act is available only in respect of the shops dealing “mainly” or exclusively in meat, fish, poultry, eggs, fruits, flowers and vegetables etc., In the instant case, petitioners are also dealing in other food and nonfood items and therefore in the absence of any material to show that the petitioners deal exclusively in commodities mentioned in Section 3(2)(e) of the Act, they are liable for prosecution for the alleged offences. Further, he submitted that the documents produced by the petitioners indicate that the petitioners themselves have sought for exemption to keep the establishment open on all 365 days of the year and for 24 hours of the day and the exemption was accorded vide notification dated 22.11.2013, which goes to show that as on the date of inspection no such exemption was granted to the petitioners. Therefore, there is a clear case for prosecution of the petitioners for violation of Section 11 of the Act.
7. In the light of the contentions urged by the parties, the
