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TMI Blog2024 (6) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... before learned Chief Judicial Magistrate, Lucknow to formulate an opinion for issuance of summoning order or even to register the complaint. It is thus, apparent that the registration of the complaint, the issuance of summoning order dated 03.09.2016 and the consequential issuance of bailable warrant vide order dated 08.02.2017 had been done in a mechanical manner sans application of mind whereas it has repeatedly been held that prior to the issuance of a summoning order it is imperative for learned Chief Judicial Magistrate to examine the complaint to ensure that the Directors or other senior officers of the company who have been named in the complaint are vicariously liable for the act complained of - As per the settled law, learned Chief Judicial Magistrate, Lucknow could not have issued process to the applicant under Section 204 Cr.P.C. and as such the entire complaint proceedings initiated against the applicant as well as summoning order dated 03.09.2016 and the order dated 08.02.2017 issuing bailable warrant against the applicant are without jurisdiction. Whether the applicant was liable for any offence even if the allegations in the complaint are taken on their face value to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 vide which bailable warrant has been issued against the applicant. 4. Learned counsel for the applicant submitted that the applicant is the Chairman and Managing Director of Wipro Ltd. (Company) and has no interest in any shareholdings or managerial control over the M/s G4S Secure Solutions (India) Private Limited. Further, the applicant being in the Board of Directors of Wipro has nothing to do with the day-to-day operations of the Wipro office at Lucknow. The applicant has no administrative control over G4S which is an agency which provides security services. 5. Learned counsel for the applicant further submitted that vide agreement dated 18.03.2015, the company entered into an agreement with M/s G4S Secure Solutions (India) Pvt. Ltd., the service provider, to provide security services to the company. In the said agreement, it has categorically been provided under clause 2 that the service provider i.e., M/s G4S Secure Solutions (India) Pvt. Ltd. agrees to render all services there under as a service provider and any other person employed or engaged by the service provider to perform the services will act and will be considered for all purposes as an independent contractor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of the Wipro Company situated at Lucknow. No direct executive function is exercised by the applicant for the office of the Wipro Company at Lucknow. He further submitted that as stated above, no notice of any alleged violation was received by any office of the Wipro Company. The Wipro Company became aware of the complaint only when a constable of U.P. Police visited the Company's Lucknow office on 17.04.2017 and stated that he was carrying a bailable warrant of arrest of Mr. Azim Premji i.e. the applicant. It was this visit that prompted the functionaries of the Wipro Company to make immediate inquires from the court of learned Chief Judicial Magistrate, Lucknow and also from the Labour Enforcement Officer and it was discovered that the alleged violation does not in any manner relate to the Wipro Company or the present applicant. 10. Learned counsel for the applicant further submitted that no offence(s) as alleged in the complaint are made out against either the Wipro Company or against the applicant. It is also the case of the applicant that the actual employers in question i.e. G4S are not under the supervision and management of the applicant, and he has no contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents presented, this Court finds that the summoning order dated 03.09.2016 and the subsequent bailable warrant issued on 08.02.2017 against the applicant, lacks necessary legal and factual foundation. There appears force in the argument of learned Counsel for the applicant that the applicant has no administrative control over the functioning of G4S, he could not have been summoned for the alleged violation of the Equal Remuneration Act, 1976 (hereinafter referred to as the Act ) under which the complaint has been preferred by opposite party No.2. Moreover, the applicant was never been notified of the said proceedings nor any notice was ever served at any office of Wipro Company and since the said outsourcing of services for providing security at Wipro Office at Lucknow has been given to G4S, the applicant cannot be made accused in case of any alleged violation of the provisions of the Act in so far as security personnel are concerned. 16. Further, learned Chief Judicial Magistrate, Lucknow has failed to ensure the compliance of Section 202 Cr.P.C., where it has been provided that if an accused resides outside the jurisdiction of the court concerned, an enquiry on fact is mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent personnel within 30 days of Wipro raising request for such replacement. 4 Representations Warranties Service Provider warrants and represents to Wipro that; h) Service Provider is responsible for paying all wages, salaries, P.F., E.S.I.C. or any other statutory benefits under the applicable law and ordinary and necessary expenses of its agents or employees including, but not limited to, all applicable taxes and employee State Insurance; 19. Further, the complaint dated 26.08.2016 which has been instituted before learned Chief Judicial Magistrate, Lucknow is in a cyclostyled printed format which is bereft of any details and merely states that the applicant alongwith other accused i.e. Shri Sanjeev Pandey of M/s G4S Secure Solutions (India) Pvt. Ltd. has violated the provision of Section 8 of the Act together with Rule 6 of the Rules framed thereunder and that they were found guilty and consequently they may be prosecuted. 20. Further, on bare reading of complaint dated 26.08.2016, it is apparent that there was no objective material before learned Chief Judicial Magistrate, Lucknow to formulate an opinion for issuance of summoning order or even to register the complaint. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 to 50 of the aforesaid judgment, which read as under:- 42. 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. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. 44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (see Union of India v. Prakash P. Hinduja [(2003) 6 SCC 195 : 2003 SCC (Cri) 1314] ). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer. 23. The Hon'ble Supreme Court also in the case of Shiv Kumar Jatia Vs. State of NCT of Delhi : (2019) 17 SCC 193 while dealing with vicarious liability of Managing Director of the Company was pleased to observe in paras-21 and 22 as under:- 21. By applying the ratio la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Managing Director of the company and having regard to nature of allegations made which are vague in nature, we are of the view that it is a fit case for quashing the proceedings, so far as the Managing Director is concerned. 24. Thus, an Officer, Director, Managing Director or Chairman of the Company can be made an accused along with the Company only if there is sufficient material to prove his active role coupled with criminal intent. Indian Penal Code does not contain any provision for vicarious liability. For Managing Director or Director to be accused and their implications in the offence allegedly committed on behalf of the company, when the accused is a Company, the complaint/ FIR or Charge-sheet must contain requisite allegations of commission of the offence by such individual(s). 25. It is further observed here that the applicant, a distinguished industrialist and the Chairman and Managing Director of Wipro Ltd., has consistently demonstrated a commitment to ethical business practices and social responsibility. Under his leadership, Wipro has not only thrived as a global leader in the IT industry but has also been at the forefront of numerous philanthropic initiatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licitly outlines that the security personnel are independent contractors, not employees or agents of Wipro. This agreement further clarifies that the responsibility for complying with all statutory requirements, including the payment of wages and other benefits, lies solely with the service provider. 30. Given these facts, the applicant's impeccable reputation as an industrialist who upholds the highest standard of corporate governance and his extensive philanthropic contribution should be taken into account. His involvement in the case appears to stem from a misunderstanding or misapplication of legal principles rather than any malafide intent or violation of the Equal Remuneration Act, 1976. The orders issued against him lacks substantive ground, as the applicant has no direct or indirect control over the alleged matter and in light of the applicant's distinguished career and substantial contributions to society, it is evident that the proceedings against him are unfounded and merit reconsideration. His exemplary record as an industrialist and philanthropist should serve as a testament to his integrity and the improbability of his involvement in any legal violations conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words sufficient ground for proceeding appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. 35. Further, the Hon'ble Supreme Court in the case of Mahendra Singh Dhoni v. Yerraguntla Shyamsundar reported in (2017) 7 SCC 760 has been pleased to observe paragraph No.13, which is read as under:- 13. Before parting with the case, we would like to sound a word of caution that the Magistrates who have been conferred with the power of taking cognizance and issuing summons are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned. This has to be treated as the primary judicial responsibility of the court issuing process. 36. Further, Hon'ble the Supreme Court has provided guidelines in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 for the exercise of power under Section 482 Cr.P.C. which is extraordinary power and used separately in following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In S.W. Palankattkar others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:- (i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. 39. Thus, in view of the law laid down by the Hon'ble Supreme Court and in light of the observations and discussions made above and keeping view the facts and circumstances of the case, and from the perusal of the record, the impugned complaint proceedings pending before the Chief Judicial Magistrate, Lucknow in Compliant Case No.2886 of 2016; State of Uttar Pradesh vs. Azim Premji Another, and the summoning order dated 03.09.2016 and the order dated 08.02.2017 vide which warrant has been issued against the applicant are liable to be quashed as in the present case learned Chief Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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