Dr. Babu Ramachandran v. State of Kerala & Secretary, Thalassery Municipality

Crl.M.C.No.4816/18 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944_ ## _CRL.MC NO. 4816 OF 2018_ _[C.C.NO.19/2018 OF THE JUDICIAL FIRST CLASS MAGISTRATE,_ _THALASSERY]_ ## _PETITIONER/ACCUSED:_ _DR.BABU RAMACHANDRAN, M.D., CHARIMAN AND MANAGING DIRECTOR, TELY MEDICAL CENTRE LTD., NEAR IIND RAILWAY GATE, THALASSERY, KANNUR DISTRICT._ _BY ADVS. SRI.M.RAMESH CHANDER (SR.) SRI.BALU TOM SMT.K.A.SANJEETHA_ ## _RESPONDENTS/COMPLAINANT/STATE:_ _1 STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, THALASSERY POLICE STATION, THALASSERY._ _2 SECRETARY, THALASSERY MUNICIPALITY, THALASSERY._ _R2 BY ADV.I.V. Pramod_ _R1 BY SRI.C.S.HRITHWIK-SR PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.4816/18 2 ## **O R D E R** The petitioner is the 1[st] accused in C.C.No.19 of 2018 of the Judicial First Class Magistrate Court, Thalassery. The aforesaid case arises from Crime No.1232 of 2017 of Thalassery Police Station. Offences alleged against the petitioner and two other accused are under Section 269 IPC, 120(e) of the Kerala Police Act and Section 340(A) of the Kerala Municipalities Act read with Section 34 of IPC. 2. The prosecution case is that, during the night of 29.11.2017, the waste water from Tely Medical Centre, Thalassery, was discharged to the Eranholi river in a tipper lorry driven by the 3[rd] accused and owned by the 2[nd] accused. The petitioner, who is the 1[st] accused, was implicated on the ground that he is the Managing Director of the Tely Medical Centre and was also the licensee of the said hospital. The FIR and final report are produced as Annexure A1. This Crl. M.C. is filed to quash all further proceedings under Annexure-A1 as against the 1[st] accused. Crl.M.C.No.4816/18 3 3. Heard Sri. Ramesh Chandar, learned Senior Counsel appearing for the petitioner and Sri.C.S.Hrithwik, learned Public Prosecutor for the State and Sri.I.V.Pramod, learned counsel for the 2[nd] respondent. 4. The specific contention put forward by the learned counsel for the petitioner is that, even if entire allegations contained in Annexure-A1 are accepted, there is nothing to connect the petitioner with the commission of the offence. It is further contended that the implication of the petitioner as an accused is also against the statutory stipulation contained in Kerala Municipality Act. As per Section 559 of the Kerala Municipality Act, it is contemplated that where the person committing any offence under this Act is a company, the company, as well as every person who is in charge of and responsible to the company for the conduct of its business at the time of the commission of the offence, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. It is pointed out that, in this case, the company is not made as accused, and therefore, the petitioner cannot be implicated as an accused. Crl.M.C.No.4816/18 4 The learned counsel for the petitioner relies on the decisions rendered by the Honourable Supreme Court in **Aneeta Hada and Ors. v. Godfather Travels and Tours Pvt. Ltd. And Ors. [2012(5) SCC 681]** and **Sushil Sethi and Another v. State of Arunachal Pradesh and Others [2020(3) SCC 240].** On the other hand, the learned Public Prosecutor, as well as the learned counsel for the 2[nd] respondent, would oppose the aforesaid contentions. 5. The first contention raised by the learned counsel for the petitioner is that there are absolutely no materials to connect the petitioner with the commission of the offence. I have carefully gone through the contents of the Annexure-A1. The basic allegation is that on 29.11.2017 at about 12 am, the 3[rd] accused was found discharging wastewater in a lorry bearing registration No.KL 56-8307 into Eranjoli river. Immediately, the matter was reported to the Police, and the crime was registered. Consequently, the vehicle was also seized. On further investigation, it was revealed that the said vehicle was owned by the 2[nd] accused. The investigating officer also concluded that the wastewater that Crl.M.C.No.4816/18 5 was carried in the said vehicle was collected from the hospital of the petitioner. However, on persual of the records, it can be seen that no materials in that respect are forthcoming. Even though several witnesses are cited by the prosecution, none of the witnesses stated that the said waste was collected from the hospital. It is admitted that the vehicle was owned by the 2nd accused, but apparently no connection between the 2nd accused and the hospital run by the 1st accused are established. The only material which the prosecution relies on is the statement of the CW2 recorded under Section 161 Cr.P.C. On going through the statement, it can be seen that apart from the mere statement that the waste water was collected from the hospital of the petitioner, no materials are produced by the prosecution to establish the same. Further, as per the said statement, CW2 did not witness the loading of the wastewater in the said lorry from the said Hospital. No other witnesses were also cited to prove that the said waste water was loaded into the said vehicle from the hospital. In the absence of any such materials, the prosecution initiated against the petitioner would be without any legal basis. Even if the trial is Crl.M.C.No.4816/18 6 conducted based on the materials now produced, it may not be possible for the prosecution to adduce any evidence indicating the role of the petitioner. 6. Another contention raised by the learned counsel for the petitioner is that since the company which is running the hospital is not made as an accused, the petitioner cannot be implicated as one of the accused. The learned counsel for the petitioner places reliance upon section 559 of the Kerala Municipality Act. According to the learned counsel for the petitioner, the aforesaid provision is similar to that of Section 141 of the Negotiable Instruments Act, and in **Aneeta Hada’s case(supra)** , statutory stipulation under Section 141 was dealt with in the manner as follows: “42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly Crl.M.C.No.4816/18 7 speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context. In **Reserve Bank of India** **v. Peerless General Finance and Investment Co.Ltd. and others, [MANU/SC/0073/1987: [(1987) 1 SCC 424]** , it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in **Deewan Singh and Others v. Rajendra Prasad Ardevi and Ors. [MANU/SC/0207/2007: [(2007) 10 SCC 528]** and **Sarabjit Rick Singh v. Union of India [MANU/SC/0041/2008:[(2008) 2 SCC 417]** . Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the Crl.M.C.No.4816/18 8 offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in **C.V. Parekh** (supra) which is a three-Judge Bench decision. Thus, the view expressed in **Sheoratan Agarwal** (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in **Anil Hada** (supra) is overruled with the qualifier as stated in paragraph 37. The decision in **Modi Distilleries** (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 7. Similarly, reliance was also placed on **Suseel Sethi** (supra) and in the said decision the necessity of arraying the company as one of the accused for the purpose of implicating the Crl.M.C.No.4816/18 9 directors of the said company based on vicarious liability is clearly observed. While applying the principles laid down by the Honourable Supreme Court in the aforesaid judgments to the facts of this case, it can be seen that the implication of the petitioner as one of the accused without arraying the company which is running the hospital is unsustainable and is fatal to the prosecution. In this case, on going through the contents of the final report, there is nothing to indicate any individual role played by the petitioner in the commission of the said crime. In such circumstances, on this ground also, the prosecution is not legally sustainable. 8. Thus, after considering all the relevant inputs, I am of the view that the prosecution which is now being proceeded against the petitioner is without any legal basis and, therefore, liable to be interfered with invoking the inherent powers of this Court under Section 482 Cr.P.C. In the result, this Crl.M.C. is allowed and the final report submitted in Crime No.1232 of 2017 of Thalassery Police Station and all further proceedings pursuant to the same including the proceedings in C.C.No.19 of 2018 on the file of the Judicial First Crl.M.C.No.4816/18 10 Class Magistrate Court, Thalassery, as against the petitioner herein are hereby quashed. Proceedings against the other accused can be continued. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/10.2.23 Crl.M.C.No.4816/18 11 ## _APPENDIX OF CRL.MC 4816/2018_ _PETITIONER ANNEXURES_ _ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE STATEMENT OF WITNESS AND THE CHARGE SHEET._ _ANNEXURE A2 PHOTOSTAT COPY OF THE NOTICE NO.H432598/17 DATED 24/8/2017._ _ANNEXURE A3 PHOTOSTAT COPY OF REPLY BY THE PETITIONER DATED 28/8/2017._ _ANNEXURE A4 PHOTOSTAT COPY OF THE RENEWAL CERTIFICATE GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 27/3/2018._