# Suraj Arora Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-04
- **Case number:** Criminal Revision No. 829 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-arora-revisionist-v-state-of-u-p-anr-46459
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 190(A) & 397 -
Revision - Indian Penal Code, 1860 - The Drugs
and Cosmetic Act 1940 - Section 18 (a) (i) /
27(c) - When the company is the offender,
vicarious liability of the Directors cannot be
imputed automatically - Magistrate is required
to apply its mind when a complaint is filed
before him to see as to whether the complaint
even if taken to its face value and taken to be
correct in its entirety, would lead to the
conclusion
that
the
respondents
were
personally responsible for any offence.(Para -
12,13)

Revisionist resigned on 10.12.2008 - information
regarding the same sent to the Directorate Medical
Health & Family Welfare on 02.06.2011. (Para - 4)

HELD:-Additional Sessions Judge, not erred in
summoning the accused. It is for the accused to file
discharge application and show that they had
resigned in 2011, and the manufacturing of drug
which was found to be sub standard was much later
in the year 2018-2019 and as such they cannot be
held responsible for such act of the company.(Para -
19)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
the date of production of certified copy of this
order.

17. No order as to costs.
----------
(2021)12ILR A164
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 829 of 2021

Suraj Arora ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Vaibhav Gupta, Rakesh Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 190(A) & 397 -
Revision - Indian Penal Code, 1860 - The Drugs
and Cosmetic Act 1940 - Section 18 (a) (i) /
27(c) - When the company is the offender,
vicarious liability of the Directors cannot be
imputed automatically - Magistrate is required
to apply its mind when a complaint is filed
before him to see as to whether the complaint
even if taken to its face value and taken to be
correct in its entirety, would lead to the
conclusion
that
the
respondents
were
personally responsible for any offence.(Para -
12,13)

Revisionist resigned on 10.12.2008 - information
regarding the same sent to the Directorate Medical
Health & Family Welfare on 02.06.2011. (Para - 4)

HELD:-Additional Sessions Judge, not erred in
summoning the accused. It is for the accused to file
discharge application and show that they had
resigned in 2011, and the manufacturing of drug
which was found to be sub standard was much later
in the year 2018-2019 and as such they cannot be
held responsible for such act of the company.(Para -
19)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1.
Ravindranatha
Bajpe
Vs
Mangalore
Special
Economic Zone Ltd. & ors. etc , Criminal Appeal
No.1047/1048/2021

2. GHCL Employees Stock Option Trust Vs India
Infoline Ltd., (2013) 4 SCC 505

3. Sunil Bharti Mittal Vs C.B.I., (2015) 4 SCC 609

4. Aneeta Hada Vs Godfather Travels & Tours (P)
Ltd., 2012 (5) SCC 661

5. Maksud Saiyed Vs St. of Guj., (2008) 5 SCC 668

6. Pepsi Foods Ltd. Vs S.J.M. ,(1998) 5 SCC 749

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard learned counsel for the revisionist
and learned A.G.A. for the State.

2. This Revision has been filed against the
order dated 22.11.2021 passed by learned
Additional Sessions Judge, Ist, Balrampur, in
Special Sessions Trial No.17/2021: State of U.P.
Vs. Pramod Arora and others, under Section
18(a) (i)/27(c) of Drugs and Cosmetic Act 1940
relating to P.S. Pachperwa, Disrict Balrampur.

3. It has been submitted by learned counsel
for the revisionist that the revisionist had earlier
approached this Court by filing a petition under
Section 482 Cr.P.C., namely, Petition No.3227
of 2021: Suraj Arora Vs. State of U.P. and
Another, challenging the summoning order dated
19.12.2019, relating to same Sessions Trial No.8
of 2019. The Court was satisfied that the
cognizance order and the summoning order was
issued without application of mind as no facts
were mentioned therein. The language of the
order did not disclose any facts of the case. The
11 All. Suraj Arora Vs. State of U.P. & Anr.
165
Court had set aside the order and remanded the
matter to the Magistrate to pass a fresh order as
per law. After this order was passed by this
Court on 17.09.021, the matter was reconsidered
by the Court and fresh order was passed on
22.11.2021, which is challenged in this
Revision.

4. It has been further submitted by learned
counsel for the revisionist that the revisionist
had no role to play in the affairs of the company
i.e. M/s Corona Pharmaceuticals Pvt. Ltd.,
Kashipur, Udham Singh Nagar, Uttarakhand, as
he had resigned as Director of the Company in
the year 2008 and had written a letter to the
Director, Medical Health and Family Welfare,
Dehradun, Uttarakhand on 02.06.2011 that he
had resigned from the post of Director, yet the
same was not taken into account by the learned
trial court. Learned trial court has erred in law
recording the finding that while passing the
summoning order/ cognizance order it has only
to see a prima facie case.

5. This Court has perused the order
impugned.

6. It has been pointed out by learned
A.G.A. that under Section 190 (A) of the Cr.P.C.
for taking cognizance and for summoning the
accused only the papers that are submitted by
the prosecution has to be taken into account. A
prima facie case alone has to be seen where the
accused can be tried for the offences for which
the prosecution proposes that the accused are
guilt of.

7. Learned counsel for the revisionist has
cited the judgement rendered by Hon'ble
Supreme
Court
in
Criminal
Appeal
No.1047/1048/2021: Ravindranatha Bajpe Vs.
Mangalore Special Economic Zone Ltd. and
others etc., decided on 27.11.2021, but no
appreciation thereof is evident from the order
impugned.

8. This Court has carefully gone through
the judgement rendered by Hon'ble Supreme
Court in Ravindranatha Bajpe (Supra), it appears
that the Appellant before the Supreme Court was
the original complainant. He had filed the
complaint before the Judicial Magistrate Ist
Class Mangalore on 24.09.2013 on which
summons were issued to the original accused
nos. 1 to 8. The original accused approached the
Sessions Court in Revision. The Revision was
partly allowed by the Sessions Court. Aggrieved
against the same, the complainant approached
the High Court. The High Court rejected the
Revision filed by the appellant Ravindranath
Bajpe. The complainant/ appellant thereafter
approached the Supreme Court.

9. In the original complainant filed by the
appellant there were 13 accused. It was the case
of the complainant that he was not absolute
owner and in possession of immovable property
described in the scheduled attached to the
complainant and the scheduled property was
surrounded by a stone wall as boundary. The
scheduled properties were abutting Mangalore-
Bajpe Old Airport Road and valuable trees were
situated in the said property. The accused no.1
was
a
company
incorporated
under
the
Companies Act and accused no.2 was the
Chairman, the accused no.3 was the Managing
Director, the accused no.4 was the Deputy
General Manager (Civil & Env.), the accused
no.5 was the Planner and Executor of the project
work of accused no.1. The accused no.9 was the
Site Supervisor, accused no.10 was the Sub
Contractor, and accused no.11 to 13 were the
employees of the Sub Contractor.

10. The accused no.1 intended to lay water
pipeline by the side of Mangalore-Bajpe Old
Airport Road abutting the scheduled properties.
The accused no.1 engaged the accused no.6
company to do the work. The pipeline instead of
being laid under the road or on the side of the
road, was laid beneath the scheduled properties
166 INDIAN LAW REPORTS ALLAHABAD SERIES
belonging to the complainant. The pipeline
trespassed
the
scheduled
property
and
demolished the compound wall which was
having the height of 7 feet and foundation of 2
feet to a distance of 500 metres. The accused
had cut and destroyed 100 valuable trees in the
process. When the complaint was filed initially
before the police in 2012, the accused no.5 had
given the statement admitting the guilt and also
undertaking to pay compensation to the
complainant towards the damages caused to his
property but the undertaking was not respected
thus the accused committed the criminal breach
of trust. The complainant had been examined on
oath by the court of the Judicial Magistate, Ist
Class, Mangalore, and he summoned accused
nos.1 and 8 only. Feeling aggrieved by the
summoning order, the original accused 1 to 5
preferred a Criminal Revision which was partly
allowed with respect to the Directors of the
company. The Judicial Magistrate's order having
been set aside the appellant approached the High
Court and the High Court affirmed the order
passed by the Sessions Court.

11. It had been argued before the Supreme
Court that at the stage of summoning the
accused only thing that has not be considered is
as to whether a prima facie case is made out on
the basis of statement made by the complainant
on oath and the material produced at that stage
and detail examination on merit is not required.
The specific allegation was that the accused no.1
to 8 has conspired with the Contractor and sub
Contractor and caused damages to the property
of the appellant.

12. The respondent on the other hand had
submitted before the Supreme Court that there
was only a bald statement that the company and
its Directors has conspired with the Contractor
and Sub Contractor and caused damages to the
property of the appellant and that issuing
summons by the court is a very serious matter.
Reference was made to GHCL Employees Stock
Option Trust Vs. India Infoline Limited, (2013) 4
SCC 505; and Sunil Bharti Mittal Vs. Central
Bureau of Investigation, (2015) 4 SCC 609; and
specific reference was made to paragraph-42 to
44 of the judgement rendered in Sunil Bharti
Mittal (supra). The Supreme Court had observed
that no doubt, a corporate entity is an artificial
person which acts through its officers, Directors,
Managing Director, Chairman etc.. If such a
company commits an offence involving mens
rea, it would normally be the intent and action of
that individual who would act on behalf of the
company. It would be more so, when the
criminal act is that of conspiracy and no liability
can be placed on the Directors unless there is a
specific role assigned to such individual who
had perpetrated the commission of offence on
behalf of the company. When the company is the
offender, vicarious liability of the Directors
cannot be imputed automatically. Reference was
made to the judgment rendered in Aneeta Hada
Vs. Godfather Travels & Tours (P) Ltd., 2012
(5) SCC 661, that if a group of persons that
guide the business of the company have the
criminal intent, that would be imputed to the
body corporate and it is in this backdrop, Section
141 of the Negotiable Instruments Act has to be
understood. Such a position is because of
statutory intendment making it a deeming
fiction. However, where a group of persons that
guide the business had intent, that is to be
imputed to the body corporate and not the viceversa. Otherwise, there has to be a specific act
attributed to the Director or any other person
allegedly in control and management of the
company, to the effect that such a person was
responsible for the acts committed by or on
behalf of the company.

13. The Supreme Court referred to the
judgment of Maksud Saiyed Vs. State of Gujarat,
(2008) 5 SCC 668 and Pepsi Foods Ltd. Vs.
Special Judicial Magistrate (1998) 5 SCC 749,
to say that the Magistrate is required to apply its
mind when a complaint is filed before him to see
11 All. Suraj Arora Vs. State of U.P. & Anr.
167
as to whether the complaint even if taken to its
face value and taken to be correct in its entirety,
would
lead
to
the
conclusion
that
the
respondents were personally responsible for any
offence. Summoning of an accused in a criminal
case being a serious matter, Criminal Law
cannot be set into motion as a matter of course.
The Magistrate has to examine the nature of the
allegation made in the complaint and the
evidence both oral and documentary in support
thereof, and that it would be sufficient for which
the complainant to succeed in bringing charge
home to the accused. The Magistrate has to
record his prima facie satisfaction for initiating
criminal proceeding. When there are no specific
allegations or averments with respect to the role
played by them in their capacity as Chairman,
Managing Director, Deputy General Manager,
Planner or Executor, they cannot be arrayed as
accused. The Supreme Court observed that the
High Court had rightly dismissed the Revision
filed by the appellant and had rightly affirmed
the order passed by the learned Sessions Judge.

14. Having perused the observations made
by Hon'ble Supreme Court in the case of
Ravindranatha Bajpe (supra), this court has
carefully gone through the complaint that was
filed by the revisionist before the learned
Additional Sessions Judge, Gonda, under the
Drugs and Cosmetic Act, 1940. It is evident that
in February, 2019, the complainant had collected
a drug sample of Rabeprazole and Domperidone
from a medical store during routine inspection.
It
was
manufactured
by
M/s
Corona
Pharmaceuticals Pvt. Ltd., Kashipur, Udham
Singh Nagar, Uttarakhand. The test analysis
report declared it as sub standard quantity and
not conforming to declared formula in respect of
its content. The complainant had sent notice to
the medical store concerned and on production
of invoice of having bought it from the drug
distributor concerned, had also sent notice to
Manokamna
Drug
Distributor.
The
drug
distributor sent invoice regard purchase of the
same from another distributor and the origin of
the drug was traced thereafter to the company
itself i.e. M/s Corona Pharmaceuticals Pvt. Ltd.,
Kashipur, Udham Singh Nagar, Uttarakhand. On
notice being sent, the company admitted that it
had manufactured the capsule. A notice was sent
to it to provide the name and address of the
person responsible for day to day activities and
Memorandum of Association of the company.
The same was provided by the company saying
that Pramod Arora and Suraj Arora were
Directors of the Company and Mr. Kush
Agarwal was the person responsible for day to
day activities. A copy of the Memorandum of
Association had been filed with the complaint
which showed that Pramod Arora and Suraj
Arora were Directors. On the basis of such
information, the complaint was rightly filed.

15. It is the case of the revisionist herein
that they had resigned on 10.12.2008 and
information regarding the same was sent to the
Directorate Medical Health & Family Welfare,
Uttarakhand on 02.06.2011.

16. If such be the case, it can only be
considered by the learned trial court at the time
of discharge application having been moved by
the revisionist.

17. It has been submitted by learned
A.G.A. that under Chapter 19 of the Cr.P.C.,
there are two parts. Part A deals with the case
instituted on a police report and Part B deals
with the cases instituted otherwise than on a
police report. In this case, the complaint case
was filed by the Inspector of Drugs, U.P. in the
office of the District Magistrate Balrampur after
due authorization of the competent authority. It
was therefore a complaint case under Drugs and
Cosmetic Act which is a special act and
therefore was filed before the Special Judge.
Under Section 244 and 245 of the Cr.P.C.,
cognizance can be taken and discharge can be
considered by the Sessions Judge.
168 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Learned A.G.A. has pointed out that
the general provision for filing discharge under
Section 227 would apply also in such cases
even though filed under the special act
therefore the appropriate remedy for the
revisionist is to approach the learned trial court
and file appropriate discharge application when
his case regarding his specific role can also be
considered by the learned trial court. The
orders summoning the accused in this case can
only be passed on the contents of the complaint
and prima facie role having been assigned by
the complainant to the Directors of the
company.

19. Having heard the learned counsel for
the parties, this Court is of the considered
opinion that the Additional Sessions Judge,
Gonda, had not erred in summoning the accused.
It is now for the accused to file discharge
application and show that they had resigned in
2011, and the manufacturing of drug which was
found to be sub standard was much later in the
year 2018-2019 and as such they cannot be held
responsible for such act of the company.

20. The Revision is dismissed with the
liberty to the revisionist to file appropriate
discharge application through counsel within
three weeks from today. The procedure
prescribed in law shall be followed by the
learned Additional District and Sessions Judge,
Gonda, and reasoned and speaking order
thereafter be passed on such application.
----------
(2021)12ILR A168
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 877 of 2021

Ramesh Chandra Mishra ...Revisionist
Versus
U.O.I. ...Opposite Party

Counsel for the Revisionist:
Vinay Kumar Singh

Counsel for the Opposite Party:
Shiv P. Shukla

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - SectionS 120-B, 409,
420, 468 & 471 - Prevention of Corruption Act,
1988
-
Section
13(1)D
-
Even
after
investigation is closed, under Section 173 (8)
Cr.P.C., the Investigating Agency can file an
application or the trial court can itself direct
further investigation. (Para - 9)

Revisionist's application under Section 173 (8) of the
Cr.P.C. - for further investigation - rejected - by
means of the judgement impugned - hence revision.
(Para - 3)

HELD:-At the stage, where the trial had to be still
initiated, no application under Section 173 (8) (B) by
the accused could have been entertained . No good
ground to show interference in this revision.Para -
9,10)

Criminal Revision rejected. (E-7)

List of Cases cited:-

1. Athul Rao Vs St. of Karn. , 2018 (14) SCC 298

2. Amrutbhai Shambhubhai Patel Vs Sumanbhai
Kantibhai Patel & ors. ,2017 (4) SCC 177

3. Vinubhai Haribhai Malviya & ors. Vs St. of Guj. &
anr. ,2019 (17) SCC 1

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard learned counsel for the revisionist
and learned AGA for the State.

2. This revision has been filed challenging
the order dated 01.12.2021 passed by the