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2010 Supreme(Jhk) 946
IN THE HIGH COURT OF JHARKHAND
D.G.R. Patnaik, J.
Sushila Devi - Appellant
Vs.
The State Of Jharkhand & Ors. - Respondent
Cri. Misc. P. No. 979 of 2006
Decided On : 01-07-2010
For the Appellant : Anil Kumar Sinha, Sr. Adv. And Abhishek Sinha
For the Respondent: M.B. Lala, A.P.P.
Vicarious criminal liability cannot be imposed on a sleeping partner unless they were in charge of the firm's affairs at the time of the alleged offenses and had mens rea and consciousness of the nature of acts.
Headnote:
Criminal Liability - Vicarious Liability - Bihar Finance Act - Indian Penal Code, Sections 467, 468, 420, 120B - Bihar Finance Act, Sections 49(2-g), 49(3-d) - National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Another, 2010 (2) EastCrC 61 (SC) : 2010 (3) SCC 330 - Sham Sunder and Others Vs. State of Haryana, AIR 1989 SC 1982
Fact of the Case:
The petitioner, a partner in a firm, sought discharge from criminal proceedings initiated under the Bihar Finance Act and Indian Penal Code. She argued that as a sleeping partner, she was not involved in the alleged offenses.
Finding of the Court:
The court found that the petitioner, being a silent partner, was not in charge of the firm's affairs at the time of the alleged offenses. It emphasized the need for mens rea and consciousness of the nature of acts to impose criminal liability.
Issues: The issues revolved around the imposition of criminal liability on a sleeping partner for offenses committed by the firm and the application of vicarious liability.
Ratio Decidendi: The court relied on the judgments in National Small Industries Corp. Ltd. and Sham Sunder cases to establish that vicarious criminal liability cannot be imposed on a person merely for being a member of the board of directors or a sleeping partner of the firm.
Final Decision: The court allowed the application, quashed the impugned orders, and terminated the criminal proceedings against the petitioner.
JUDGMENT :
D.G.R. Patnaik, J.
Heard the learned Counsel for the petitioner and learned Counsel for the Opposite Parties.
2. The petitioner, in this application, filed u/s 482 of the Cr.P.C., has prayed for quashing the order dated-28.02.2006, passed in Cr. Revision No. 19 of 2001, by the 04th Additional District & Sessions Judge, Jamshedpur, whereby the impugned order dated-13.12.2000, passed by the Judicial Magistrate, Jamshedpur has been confirmed by rejecting the petitioner's prayer for his discharge in the proceedings pending against her, which was initiated on the basis of an F.I.R. lodged in the Police Station vide Bistupur P.S. Case No. 113 of 1999 (G.R. Case No. 938 of 1999).
3. The facts of the case briefly stated is that in the Establishment of M/s. Ashok and Company, a partnership firm, constituted by the partners, namely, the present petitioner and her husband, Ratan lal Agrawal (now deceased), a raid was conducted on 27.05.1997 by the Inspector of Police (Food), Crime Investigation Department, Jamshedpur. Upon alleged detection of several irregularities and violations of the provisions of the Bihar Finance Act, a case was registered against the partners of the Firm including the present petitioner, for the alleged offences u/s 467, 468, 420 and 120B of the Indian Penal Code and Sections 49(2-g) and 49(3-d) of the Bihar Finance Act.
At the stage, when the trial was to commence, the petitioner filed an application, praying for her discharge from the case. The grounds on which the prayer for discharge was made, was that except the fact that she happened to be a sleeping partner of the firm, she was never involved in running or managing the affairs of the business of the firm in any manner. Rather, her husband was the sole person who used to manage and run the affairs of the business of the firm and whatever transactions, referred to in the F.I.R., relating to the alleged offences, were indulged in by her husband.
4. The learned court below refused to accept the grounds advanced by the petitioner and rejected her prayer for discharge. Against the impugned order of the trial court, the petitioner filed a Revision application before the Sessions Judge, which also came to be dismissed by the impugned order, passed by the Revisional Court.
5. Assailing the impugned orders, Mr. Anil Kr. Sinha, learned Senior counsel would argue that the impugned orders passed, both by the learned trial court as also by the Revisional Court, are bad in law and have been passed in a mechanical manner without application of judicial mind and without appreciating the facts of the case in proper perspective.
Elaborating his arguments, learned Counsel submits that the facts, even as admitted by the informant/Opposite Party No. 2 in his counter affidavit, is that except the fact that the petitioner was a sleeping partner of the partnership firm, she had never participated in any such offensive/illegal transaction, which could directly invite any criminal liability upon her. Learned Counsel submits further that it is by now well-settled that vicarious liability cannot be saddled upon any person, unless it is established that there is some involvement of the person in the alleged offences.
Referring to a judgment of the Supreme Court in the case of National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Another, 2010 (2) EastCrC 61 (SC) : 2010 (3) SCC 330 and to yet another judgment of the Supreme Court in the case of Sham Sunder and Others Vs. State of Haryana, AIR 1989 SC 1982, learned Counsel submits that such vicarious criminal liability cannot be thrust upon any person merely because the person concerned happens to be a member of the Board of directors or a sleeping partner of the firm.
6. Learned Counsel for the Opposite Parties on the other hand submits, by reference to the statements contained in the counter affidavit, that the petitioner being admittedly, a partner of the firm against which the case was registered, she has to bear the vic
