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TMI Blog2009 (11) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies (Court) Rules, 1959. A prayer has been made that petitioners be exempted of the apprehended prosecutions under proceedings in respect of case crime No. R.C. 1(S)/2006/CBI/SCB/Lucknow of 2006 U/ss 120-B/467/468/471/477-A I.P.C. pending before the Court of Special Magistrate, CBI, Lucknow. 3. A stay was granted by this Court on 9-6-2009 which has been extended from time to time. A stay vacation application was moved and its extension has been opposed by the opposite parties. Since affidavits have been exchanged the matter is being heard finally. 4. A preliminary objection has been raised by Sri Bireshwar Nath, learned counsel for the C.B.I. that the petition under section 633(2) is not maintainable on facts and circumstances of the case. The objection was sought to be replied by the petitioners counsel. The narration of facts in brief thus becomes imperative. 5. The petitioners are the two Directors of a Company registered at Lucknow under the Companies Act, 1956 viz. Ms. Carlton Hotels Private Limited. 6. An F.I.R. was lodged on 12-1-2006 with the C.B.I. under sections 120B, 420, 467, 468, 471, 477A of the I.P.C, against one V.K. Gupta, the Chartered Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under the circumstances when the preliminary inquiry conducted by the Central Government has not found anything against the petitioners and the Investigating Officer of the C.B.I. has recommended the closure of the case, re-investigation against the petitioners only amounts to harassment and nothing else. Even the action of Mr. V.K. Gupta is covered by the word misfeasance given in section 633(2). Section 633 of the Act is quoted below : "633. Power of Court to grant relief in certain cases. (1) If in any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company, it appears to the Court hearing the case that he is or may be liable in respect of the negligence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case including those connected with his appointment, he ought fairly to be excused, the Court may relieve him, either wholly or partly, from his liability on such terms as it may think fit : Provided that in a criminal proceeding under this sub-section, the Court shall have no power to grant relief fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of the said judgment. According to his interpretation of the judgment; section 633(2) will apply in the case of the petitioners because the offences mentioned in the F.I.R. are referable to Indian Penal Code and not of any special enactment. He has argued giving a new dimension that the judgment of Rabindra Chamria s case ( supra ) was confined to the acts; like Provident Fund Act, or the Payment of Wages Act; or any other such special enactment and it would not mean to include the provisions of the I.P.C. According to him, at the best, the charges are referable to section 628 of the Companies Act; and hence, the intervention of the High Court granting him stay, is justified. He has also picked up reference to section 628 at pages 135 and 136 of the report of the inquiry conducted by the Central Government. This about sums up of the total argument of the learned counsel for the petitioner. 12. In reply, Sri Bireshwar Nath has reiterated his preliminary objection. He has once more drawn attention of this Court towards Rabindra Chamria s case ( supra ) and said that the learned counsel for the petitioner has misread and misunderstood the provisions of section 633 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l thus be buried forever if the hands of the investigating authority are clubbed. 14. Sri Bireshwar Nath has further argued that the petitioner deserves no indulgence by this Court on other ground also. He states that the petitioner have concealed material facts from this Court. According to him on 18-5-2009, the petitioner filed anticipatory bail petition under section 438 Cr.P.C. before the Delhi High Court and a writ petition under Article 226 of the Constitution of India before a Division Bench of this Court. Delhi High Court was pleased to grant ten days transit bail to the petitioner vide his order dated 21-5-2009. When the period expired on 1-6-2009. The petitioner wrote to C.B.I. seeking further fifteen days time for appearing before it on account of illness and urgent work. During this period, they moved instant petition under section 633 of the Companies Act on 8-6-2009. This is third petition, in which the petitioner secured ex parte order of stay of arrest on 9-6-2009. He further states that the Division Bench of this Court dismissed the writ petition pending before it on 20-7-2009 on the ground that multiple petitions for the same relief has been filed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proceedings initiated by the appellant. It may not be that the complainant should have been made a party by the accused himself in the petition for quashing the criminal proceedings, as the accused has no such obligation when the case was charge-sheeted by the police. It is predominantly the concern of the State to continue the prosecution. But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be negation of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. What is the advantage of the Court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums. The scheme envisaged in the Code of Criminal Procedure (for short the Code ), indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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