Prasanta Kumar Saikia, J.

1. This criminal petition is directed against the order dated 03.10.2008 and all other subsequent orders passed in CR Case No. 56C of 2008, as far as accused No. 2/ Petitioner is concerned, now, pending in the Court of Judicial Magistrate First Class, Margherita. I have heard Mr. D. Baruah, learned counsel for petitioner as well as Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam and Mr. S. Sarma, learned counsel for respondents.

2. The brief facts, necessary for disposal of the proceeding, are that the petitioner herein is one of the Directors of McLeod Russel India Limited, Kolkata, (WB), herein after referred to as Mcleod Limited, which has various tea gardens in India and abroad. The Tea Estate under the name and style of Bogapani Tea Estate, situated at Digboi, Assam is one of such gardens owned by aforesaid Mcleod Ltd.

3. The company has appointed a Manager to conduct the business of Bogapani Tea Estate and such Manager is responsible for running the plantation business. It is stated that the Directors of Mcleod Ltd. have no direct control over the day-to-day affairs of the tea gardens owned and managed by the Mcleod Limited.

4. In the petition u/s. 482 Cr.P.C., the petitioner has stated that the respondent No. 1 herein, as being complainant, filed a complaint purportedly under Section 36 of the Plantations Labour Act of 1951 (in short, the Act of 1951) before the Sub-Divisional Judicial Magistrate, Margherita, (in short SDJM) on 25.09.2008 alleging that during the course of inspection on 28.05.2008, he found that the Director as well as Manager, who are arrayed as accused No. 1 & 2 respectively in the complaint petition, violated Section 18(1) of the Act as well as the Rule 3(2) of the Plantations (Welfares Officers) Assam Rules, 1977, (in short, the Rules of 1977).

5. Such violation occurred for not appointing the second Welfare Officer in the aforesaid Tea Estate. In that connection, it has been stated that where the number of laborers in a particular garden is more than 1200, the authority in the garden needs to appoint a second Welfare Officer. In the present case, the Garden aforesaid had more than 1700 workers at the time relevant and as such, said garden is required to appoint 2nd Welfare Officer.

8. Since under the law, the garden is to appoint 2nd Welfare Officer, the accused persons were asked to appoint the Second Welfare Officer within 90 days from the date of receipt of notice issued in that regard. Such direction was not complied with by the accused/petitioner No. 2 stating that the garden is not in the position to appoint 2nd Welfare Officer.

7. Since the Tea Estate aforesaid was duty bound to comply with the direction rendered in the notice stated above and since it refused to comply with the direction in the notice, served upon it, the accused persons committed the offence under Section 36 of the Act and as such, a regular complaint was filed before the learned SDJM, Margherita on 25.09.2008.

8. On the receipt of the aforesaid complaint, the learned SDJM, Margherita transferred the case to the file of Judicial Magistrate 1st Class, Margherita for disposal in accordance with law. On the receipt of the case on transfer, the learned Judicial Magistrate 1st Class took cognizance of the offence under Section 36 of the Act and issued process to the accused persons, vide order dated 3.10.2008.

9. In compliance of the order dated 03.10.2008 and the order dated 27.11.2009, passed in Cr. Case No. 56 of 2008, requiring the petitioners herein to appear before the Court of Judicial Magistrate 1st Class Margherita, the petitioner herein appeared before the court and prayed for dropping the case against him since he is not an employer within the meaning of Section 2(e) of the Act and also in view of law laid down by this Court in the case of R.L. Rikhye -versus- State of Assam reported in 2001 (2) GLT 156.

10. It has been pointed out that in his complainant petition, the complainant/resp