Sustainability of the order passed by the Magistrate.

The third accused in C.C.No.233 of 1987 on the file of the VIII Metropolitan Magistrate, George Town, Madras, is the petitioner. He along with eight others were arrayed as accused in the said calendar case, on a prosecution initiated by the State, on the complaint of the Tamil Nadu Electricity Board for offences under Secs.39(1) and 44(1)(c) of the Indian Electricity Act and Secs.120-B, 484 and 473, I.P.C., read with Sec.109, I.P.C.

2. In this petition under Sec.482, Cr.P.C., the prayer of the petitioner is to direct the VIII Metropolitan Magistrate, to exclude the petitioner from representing the first accused. Messrs. Victory Industries, in the said calendar case, in the interests of justice. The facts which led to this prosecution need narration.

3. Thepetitioner and the fourth accused are the sons of the second accused, Thangavelu, who is now dead. Thangavelu appears to have died on 14.1.1988, when the prosecution was pending. It is not in dispute that the first accused, Messrs Victory Industries was a sole proprietory concern the proprietor being the deceased Thangavelu father of the petitioner. After the death of Thangavelu, the respondent filed an application before the Court below, that the petitioner must be shown as the representative of Messrs Victory Industries for the conduct of further proceeding against the first accused. This prayer made by the respondent was objected to by the petitioner on the ground that the deceased second accused was the sole proprietor of the first accused and he had no part to play in the said organisation. He along with the others, were the legal heirs of the deceased Thangavelu and nothing further.

4. The trial Magistrate held that the petitioner and his brother, the fourth accused had not placed any material to indicate that the first accused Messrs. Victory Industries, was the sole proprietory concern. On the contrary, the evidence disclosed that the third accused was also helping his father, the second accused. Further, the Magistrate was of opinion, that when the proprietor and the fourth accused, were admittedly the legal heirs of the deceased second accused, they cannot say that they had no share in the proprietory concern. Since the first accused has been shown as the principal accused necessarily some one must be shown as a representative of the first accused and it was permissible under Sec.305(6), Cr.P.C., to decide this issue and therefore, there was nothing wrong in including the petitioner as the representative of the first accused, Messrs. Victory Industries. The petition filed by the respondent was thus allowed.

5. Mr.A.Natarajan, learned counsel for the petitioner contends that the first accused was a sole proprietory concern and the petitioner’s father was sole proprietor. The petitioner and his brother did not have any control over the day to day administration and affairs of the said Victory Industries. The petitioner and his brother do not also have any shares in the said concern. Further, Victory Industries is not a partnership firm, attracting Sec.4 of the Indian Partnership Act and it is also not a ‘Company’ under the Indian Companies Act. In the absence of the above legal requirements, Victory Industries cannot be sued in its own name. He further contends that under Sec.49(A) of the Indian Electricity Act, 1910, prosecution can be only of the company, which meant any body corporate and includes a firm or other association of individuals. It did not include a proprietory concern. According to the learned counsel, when the legal position is clear, there appears to be no power to prosecute the sole proprietory concern as has been done in this case and in any event, after the death of the second accused, there is no scope whatsoever, to permit the prosecution to implead the petitioner as the representative of the first accused. Finally, he submits that the Magistrate, has misconceived the scope of Sec.305(6), Cr.P.C. 6. I have heard Mr.R.Shanmughasundara