A proprietary concern cannot be treated as a corporation under Section 305 Cr.P.C., and thus the legal provisions applicable to corporations do not apply.

ORDER

This criminal miscellaneous case is filed challenging Annexure-V order passed by the Judicial First Class Magistrate Court, Sasthamcotta. Petitioners are accused in S.T. No.1221/2009 on the file of the Judicial First Class Magistrate Court, Sasthamcotta. It is a prosecution initiated by the 2^nd respondent under Section 72 of the Standards of Weights & Measures Act, 1976 and Section 63 of the Standards of Weights and Measures (Enforcement) Act, 1985 , alleging that the 1^st petitioner contravened Rule 4, Rule 6(1)(d) and Rule 6(1)(f) of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 read with Section 39 of the Standards of Weights and Measures Act, 1976 punishable under of the Act. Annexure-I is the complaint.

2. In the above case, prosecution adduced evidence. After completing the evidence of the prosecution, the case was posted for the examination of accused under Section 313 Cr.P.C. The learned Magistrate dispensed with recording of statement under Section 313 Cr.P.C., observing that there is no living person. Thereafter the prosecution filed CMP No.1900/2017 seeking to recall PW1 complainant and to examine him for bringing in additional evidence and to implead living representatives of the accused in the case. Annexure-II is the petition. Annexure-III objection was filed by the petitioners to that application. The learned Magistrate dismissed that petition. Subsequently the Assistant Public Prosecutor filed CMP No.329/2018 seeking to direct the accused to present the real accused before the court and conduct retrial of the case. Annexure-IV is the petition. The petitioners filed a detailed counter to Annexure-IV petition, as evident by Annexure-V. The learned Magistrate allowed that petition in part directing the 1^st accused to appoint a representative to represent it treating the 1^st accused as a Company. Annexure-VI is the order. Aggrieved by the same, this criminal miscellaneous case is filed.

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.

4. This Court appointed Adv.Apoorva Ramkumar as Amicus Curiae. Adv. Apoorva Ramkumar worked up the position and argued the matter in detail. I record my appreciation to her.

5. According to the petitioners, the 1^st petitioner is not a Company and is a proprietorship, and therefore, Section 305 Cr.P.C. is not applicable. Section 305 Cr.P.C. is extracted hereunder:

“Procedure when corporation or registered society is an accused.-

(1) In this section, “corporation” means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).

(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose the inquiry or trial and such appointment need not be under the seal of the corporation.

(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.

(4) Where a representative of a corporation does not appear, any such requirement as is referred to in Sub-Section (3) shall not apply.

(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appoint