Vicarious liability of employees under the Indian Penal Code requires the company to be prosecuted for the offenses, and specific allegations are necessary to establish criminal liability.

Ravi Nath Verma, J. - Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of the entire criminal proceeding including the order dated 07.03.2008 passed by Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case no. 1219 of 2007, whereby and whereunder cognizance of offence has been taken against the petitioner under Section 406, 420 and 120-B of the Indian Penal Code.

2. Before I enter into the factual matrix of the prosecution case, the proposition of law that has emerged for consideration is whether the General Manager-cum-Production Manager an employee of a Company [though such post is not in existence in the said Company] would be liable for prosecution under the above provisions without the Company being arraigned as an accused?

3. At the instance of the complainant-opposite party no.2, a Complaint Case bearing no. 1219 of 2007 was instituted in the court of Chief Judicial Magistrate, Hazaribagh with the allegation that he had purchased one Tata Safari vehicle from Basudeo Auto Limited, Hazaribagh a dealer of Tata Motors Ltd. on 11.05.2007 on payment of Rs. 9,92,079/- through bank draft, but after taking delivery, the complainant found the A.C. of the vehicle not working properly and some white patches started appearing on the front part of the vehicle. On a complaint made by the complainant to the accused persons, the gas cylinder of the A.C. was filled and he was assured that the defective colour would also be attended to in due course but the complainant and his family went on a holiday trip to South India in the said vehicle and on way, technical snag developed in the vehicle, which was repaired at the cost of complainant. Again on 26.06.2007, the vehicle developed some technical problems and every time, the complainant had to incur expenses on repairing. After coming back to Hazaribagh, the break system of the vehicle developed major problem and seeing the regular technical problem, the complainant brought the vehicle to the workshop at Basudeo Auto Limited, Hazaribagh and after repairing, assurance was given by the Company that the vehicle is now free from all problems. On 18.07.2007, when the vehicle again developed some technical snag, it was brought to Basudeo Auto Limited, Hazaribagh. Whereafter, this complaint case was filed.

4. It appears from the record that the learned Chief Judicial Magistrate after recording the statement of complainant on solemn affirmation further examined one witness under Section 202 of the Code and being satisfied with prima facie case against the petitioner and others, took cognizance of the offence as indicated above. Hence, this quashing application.

5. Mr. V.P.Singh learned senior counsel appearing for the petitioner assailing the order taking cognizance of offence as bad in law and against the settled principles, seriously contended that this petitioner Tata Motors Limited, a Company registered under the Indian Companies Act, has not been arrayed as a party in the complaint petition rather the General Manager-cum-Production Manager (Tata Safari) Tata Motors Passengers Car Business Unit, Pune, Maharashtra has been made party though no such post is in existence, the Company has preferred this petition. The said employee cannot be prosecuted for the offence punishable under the provisions in which cognizance has been taken without the company being arrayed as an accused. Since no summon has been issued in the name of company rather summon has been issued against the said employee but it has been served to the Company on behalf of the said post of the employee, the entire proceeding is vitiated in view of the mandates given by the Hon’ble Supreme Court in Aneeta Hada Vs. Godfather Travels and Tours Private Limited; (2012) 5 SCC 661. It was further canvassed that the allegation relates to manufacturing defect in Tata Safari and for that instead of prosecuting the company,