The correct exercise of power under Sec. 305(6) of Cr.P.C. in determining the representation of a Corporation in trial proceedings.

JUDGMENT

1. By this Writ Petition, the petitioner-Company (original accused no. 3) has approached this Court, challenging an order dtd. 25/11/2019, passed by the Sessions Court, whereby the petitioner-Company has been directed to depute some other authorized person, failing which, the prosecution is directed to take steps against the petitioner-Company (accused no. 3).

2. The said order is passed in the backdrop of a prosecution launched against the respondent no. 2 (original accused no. 1), respondent no. 3 (original accused no. 2) and the petitionerCompany (original accused no. 3), for offences under Ss. 119, 120, 201, 420 read with Sec. 120-B of the IPC and Sec. 13(2) read with Sec. 13(1)(d) of the Prevention of Corruption Act, 1988.

3. During the course of the proceedings before the Sessions Court, an order dtd. 15/11/2018, came to be passed, whereby it was recorded that the respondent no. 3 herein (accused no. 2) was permitted to represent the accused no. 3 i.e. the petitionerCompany, in the proceedings. The said order appears to have been passed on a prayer to that effect made by the petitionerCompany i.e. the accused no. 3. In this backdrop, respondent no. 3 i.e. original accused no. 2 filed an application for recalling/modification of the order dtd. 15/11/2018. In the said application, it was specifically stated by the respondent no. 3 (accused no. 2) that neither an opportunity of hearing nor to file response to the request made on behalf of the petitioner (accused no. 3), was granted, while passing the order dtd. 15/11/2018. It was submitted that the respondent no. 3 (accused no. 2) was no longer a majority shareholder of the Company and he was holding a negligible share i.e. less than 2% and therefore, he could not represent the petitioner Company i.e. the original accused no. 3. In this backdrop, a prayer was made for recalling the order dtd. 15/11/2018.

4. The Sessions Court passed the impugned order, observing that the accused persons were delaying the proceedings before the Sessions Court and it was found that since the respondent no. 3 (accused no. 2) had refused to represent the accused no. 3 i.e. the petitioner herein, it would be appropriate to direct the petitionerCompany to depute an authorized person in the proceedings.

5. While issuing notice in this Writ Petition, on 8/1/2020, this Court granted ad-interim stay and the said interim order has continued to operate.

6. Ms. Asha Desai, learned Counsel for the petitionerCompany submitted that the impugned order was unsustainable for the reason that there was no power in the Sessions Court to recall its own order dtd. 15/11/2018. It was further submitted that since respondent no. 3 i.e. the original accused no. 2 was a Director of the petitioner-Company, at the time when the offence was committed and he had knowledge of the affairs of the Company, he was the only person who could represent the petitioner-Company in the Court. It was submitted that this aspect was taken into account by the Sessions Court while passing the order dtd. 15/11/2018 and that there was no basis to modify the same by passing the impugned order. It was further brought to the notice of the Court that that the Director, who was representing the petitioner-Company when this Writ Petition was filed, had subsequently retired.

7. Mr. Joshi, learned Counsel appearing on behalf of respondent no. 2 i.e. the original accused no. 1 submits that he has no submissions to make because the controversy raised by the petitioner in the context of the impugned order has no concern with the said respondent. It is submitted that the observation in the impugned order that the respondent no. 2 has delayed the proceedings is not correct.

8. Mr. Arun Bras De Sa, learned Counsel appearing on behalf of respondent no. 3 (accused no. 2) has invited attention of this Court to Sec. 305(6) of Cr.P.C. to contend that it is well within the powers of the Sessions Court to determine the question as to whether, a person ap