RAVINDRANATHA BAJPEversusMANGALORE SPECIAL ECONOMIC ZONE LTD. & OTHERS ETC.

268                       [2021]
               SUPREME COURT     6 S.C.R. 268
                              REPORTS                     [2021] 6 S.C.R.


A                        RAVINDRANATHA BAJPE
                                       v.
                    MANGALORE SPECIAL ECONOMIC
                      ZONE LTD. & OTHERS ETC.
B                  (Criminal Appeal Nos. 1047-1048 of 2021)
                            SEPTEMBER 27, 2021
                 [M. R. SHAH AND A. S. BOPANNA, JJ.]
            Criminal Law – Vicarious liability – Allegation that the
      accused-respondents with the common intention of laying pipeline
C
      beneath the properties belonging to the complainant, committed
      criminal trespass into the properties and demolished stone
      compound wall and also cut and destroyed about 100 trees –
      Magistrate issued process against respondents-accused nos.1 to
      8 for offences punishable u/ss.427, 447, 506 and 120B r/w s.34
D     IPC – Sessions Court set aside the order of Magistrate – High
      Court confirmed the order of Sessions Court – Challenge to – Held:
      Summoning of an accused in a criminal case is a serious matter –
      Criminal Law cannot be set into motion as a matter of course –
      From the order passed by the Magistrate issuing the process against
      the respondents-accused nos. 1 to 8, there does not appear that
E
      the Magistrate has recorded his satisfaction about a prima facie
      case against respondent nos. 2 to 5 and 7 & 8 – Merely because
      respondent Nos.2 to 5 and 7 & 8 were the Chairman/Managing
      Director/ Executive Director/ Deputy General Manager/Planner &
      Executor, automatically they cannot be held vicariously liable,
F     unless, there were specific allegations and averments against them
      with respect to their individual role – On facts, High Court rightly
      dismissed the revision applications and rightly confirmed the order
      passed by the Sessions Court quashing and setting aside the order
      passed by the Magistrate issuing process against respondent nos.
      1 to 8-original accused nos. 1 to 8.
G
            Dismissing the appeals, the Court
           HELD: 1. It was not even the case on behalf of the
      complainant that at the time when the compound wall was
      demolished and trees were cut, accused nos. 2 to 5 and 7 & 8
H     were present. Except the bald statement that accused nos. 2 to
                                      268
         RAVINDRANATHA BAJPE v. MANGALORE                           269
             SPECIAL ECONOMIC ZONE LTD.

5 and 7 & 8 have conspired with common intention to lay the         A
pipeline within the schedule properties belonging to the
complainant, without any lawful authority and right whatsoever
and in furtherance they have committed to trespass into the
schedule properties of the complainant and demolished the
compound wall, there are no other allegations that at that time
                                                                    B
they were present. Accused nos. 2 to 5 and 7 & 8 are stationed
at Hyderabad. There are no further allegations that at the
command of A2 to A5 and A7 & A8, the demolition of the
compound wall has taken place. All of them are arrayed as an
accused as Chairman, Managing Director, Deputy General
Manager (Civil & Env.), Planner & Executor, Chairman and            C
Executive Director respectively. Therefore, as such, in absence
of any specific allegations and the specific role attributed to
them, the Magistrate was not justified in issuing process against
accused nos. 1 to 8 for the offences punishable under Sections
427, 447, 506 and 120B read with Section 34 IPC.[Para 7.1][277-
                                                                    D
C-F]
      2.1. Summoning of an accused in a criminal case is a
serious matter. Criminal Law cannot be set into motion as a
matter of course. [Para 8.2][279-C-D]
      2.2. In the order issuing summons, the Magistrate has to      E
record his satisfaction about a prima facie case against the
accused who are Managing Director, the Company Secretary and
the Directors of the Company and the role played by them in
their respective capacities which is sine qua non for initiating
criminal proceedings against them. Looking to the averments
                                                                    F
and the allegations in the complaint, there are no specific
allegations and/or averments with respect to role played by them
in their capacity as Chairman, Managing Director, Executive
Director, Deputy General Manager and Planner & Executor.
Merely because they are Chairman, Managing Director/
Executive Director and/or Deputy General Manager and/or             G
Planner/Supervisor of A1 & A6, without any specific role
attributed and the role played by them in their capacity, they
cannot be arrayed as an accused, more particularly they cannot
be held vicariously liable for the offences committed by A1 &
A6. [Para 8.3][279-H; 280-A-C]                                      H
270            SUPREME COURT REPORTS                       [2021] 6 S.C.R.


A            2.3. From the order passed by the Magistrate issuing the
      process against the respondents herein – accused nos. 1 to 8,
      there does not appear that the Magistrate has recorded his
      satisfaction about a prima facie case against respondent nos. 2
      to 5 and 7 & 8. Merely because respondent Nos.2 to 5 and 7 &
      8 are the Chairman/Managing Director/ Executive Director/
B     Deputy General Manager/Planner & Executor, automatically
      they cannot be held vicariously liable, unless, there are specific
      allegations and averments against them with respect to their
      individual role. Under the circumstances, the High Court has
      rightly dismissed the revision applications and has rightly
C     confirmed the order passed by the Sessions Court quashing and
      setting aside the order passed by the Magistrate issuing process
      against respondent nos. 1 to 8– original accused nos. 1 to 8 for
      the offences punishable under Sections 427, 447, 506 and 120B
      read with Section 34 IPC. [Para 9][280-C-F]
            3. The Magistrate shall proceed with the complaint against
D
      original accused nos. 9 to 13 on its own merits, in accordance
      with law. [Para 10][280-G]
            GHCL Employees Stock Option Trust v. India Infoline
            Limited, (2013) 4 SCC 505 : [2013] 5 SCR 276 ; Sunil
            Bharti Mittal v. Central Bureau of Investigation, (2015)
E           4 SCC 609 : [2015] 1 SCR 377 ; Maksud Saiyed v.
            State of Gujarat, (2008) 5 SCC 668 : [2007] 9 SCR
            1113 ; and Pepsi Foods Ltd. v. Special Judicial
            Magistrate, (1998) 5 SCC 749 : [1997] 5 Suppl. SCR
            12 – relied on.
F                            Case Law Reference
      [2013] 5 SCR 276                   relied on            Para 6.2
      [2015] 1 SCR 377                   relied on            Para 6.2
      [2007] 9 SCR 1113                  relied on            Para 8.1
G     [1997] 5 Suppl. SCR 12            relied on             Para 8.2
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos.1047-1048 of 2021.
            From the Judgment and Order dated 28.09.2015 of the High
      Court of Karnataka at Bengaluru in Criminal Petition Nos.3989 and 3990
H     of 2014.
             RAVINDRANATHA BAJPE v. MANGALORE                              271
                 SPECIAL ECONOMIC ZONE LTD.

     Shailesh Madiyal, Anantha Narayana M. G., Tarun Gulia, Ankit          A
Verma, Ms. Neha Jain, Advs. for the Appellant.
       Nishanth Patil, Anup Jain, Vidit Monga, Ms. Shubhika Saluja,
P. P. Hegde, Ms. Charu Ambwani, Ms. Manisha Ambwani, Advs. for
the Respondents.
         The Judgment of the Court was delivered by                        B

         M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 28.09.2015 passed by the High Court of Karnataka at
Bengaluru in Criminal Petition No. 3989/2014 and Criminal Petition No.     C
3990/2014, by which the High Court has dismissed the said revision
petitions and has confirmed the judgment and order passed by the
learned Sessions Court, by which the learned Sessions Court set aside
the order passed by the learned Judicial Magistrate, First Class,
Mangalore dated 24.09.2013 issuing summons against original accused
nos. 1 to 8 – respondents herein, the original complainant has preferred   D
the present appeals.
         2. The facts leading to the present appeals in nutshell are as
under:
       That the appellant herein – original complainant filed a private    E
complaint against in all thirteen accused (accused nos. 1 to 13) in the
Court of the learned Judicial Magistrate, First Class, Mangalore being
P.C. No. 119/2013 for the offences punishable under Sections 406, 418,
420, 427, 447, 506 and 120B read with Section 34 IPC. It was the case
on behalf of the complainant that he is the absolute owner and in
                                                                           F
possession & enjoyment of the immovable property described in the
schedule attached to the private complaint and the schedule properties
were surrounded by a stone wall as boundary. That the schedule
properties are abutting Mangalore-Bajpe Old Airport Road. It was stated
that there were valuable trees on the schedule properties.
                                                                           G
      2.1 It was contended that the accused No.1 is a company
incorporated under the Companies Act and accused No.2 being
Chairman and accused No.3 being Managing Director and accused
No.4 being Deputy General Manager (Civil & Env.) of accused No.1
and accused No. 5 was the planner and executor of the project work
of accused No. 1.                                                          H
272            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A            2.2 It was stated that accused No. 6 is also a Company
      incorporated under Companies Act. Accused No.7 was its chairman.
      Accused No 8 was the Executive Director, Accused No. 9 was the
      Site supervisor of accused No.6. Accused No.10 was the sub-contractor
      under accused No.6 and accused Nos. 11 to 13 were the employees
      of accused No.10.
B
             2.3 It was contended by the complainant that accused No.1
      intended to lay water pipeline by the side of Mangalore-Bajpe Old
      Airport Road abutting the schedule properties. In that regard, he had
      obtained permission from the Department of Public Works, Mangalore.
      Accused No.2 on behalf of accused No.1 appointed accused No.6 as
C     a contractor for execution of the said project of laying the water pipe
      line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute
      and oversee the said work. They in turn had appointed accused No.9
      as site supervisor and the accused No.10 being the sub-contractor
      engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5
      were entrusted the work of supervision and overseeing the pipeline
D     works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9
      and 10 to 13. Accused Nos. 6 to 8 had put into service heavy
      machineries and excavators and their vehicles for carrying out the work.
      It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired
      with common intention to lay the pipeline beneath the schedule properties
E     belonging to the complainant without any lawful authority and right
      whatsoever. In furtherance thereof, they had trespassed over the
      schedule properties and demolished the compound wall which was
      having the height of 7 feet and foundation of 2 feet to a distance of
      500 metres. They had cut and destroyed 100 valuable trees and laid
      pipeline beneath the schedule properties. It was contended that when
F     this high-handed act was committed by the accused, the complainant
      was out of station and he came back on 21.4.2012 and noticed the
      destructive activities. The accused have committed the act of mischief
      and waste and caused pecuniary loss of more than Rs.27 lakhs to the
      complainant. All the accused are jointly and severally liable to make
      good the loss to the complainant.
G
             2.4 It was contended that the complainant had questioned the
      accused about their high-handed acts. But they were indulged in criminal
      intimidation by threatening the complainant of taking away his life if he
      insists for making good the loss. Thereafter, the complainant filed a
      complaint on 21.4.2012 before the SHO, Bajpe Police Station. No proper
H     enquiry was held by the police. But accused No.5 gave a statement
          RAVINDRANATHA BAJPE v. MANGALORE                                   273
       SPECIAL ECONOMIC ZONE LTD. [M. R. SHAH, J.]

admitting the guilt and also undertaking to pay adequate compensation        A
to the complainant towards the damages caused to the property. The
said undertaking given by accused No.5 is binding on all the other
accused. But thereafter, the accused have not come forward to make
good the loss and thereby, they have committed an act of criminal breach
of trust and cheating.
                                                                             B
       2.5 It was contended that the accused were having no right
whatsoever to commit trespass over the schedule properties and to
cause damage. Each one of the accused had common intention to lay
the pipeline by damaging the property of the complainant. With that
intention, they have committed criminal trespass and caused damages.
Therefore, the complainant prayed the learned trial Court to take            C
cognizance of the matter and to issue process against the accused. The
schedule properties described as immovable property were situated at
Malavur Bajpe Village of Mangalore Taluk comprised in Sy.No. 56/2,
measuring 7.50 acres, Sy. No, 178/2C measuring 1.76 acres, Sy.No.
50/6B measuring 1.15 acres with trees standing thereon.
                                                                             D
       2.6 That the complainant was examined on oath before the Court.
As many as nine documents came to be marked as ‘Exhibit C1 to C9’.
That the learned Judicial Magistrate, First Class, Mangalore by order
dated 24.09.2013 directed to register the case against all the accused,
i.e, accused nos. 1 to 13 for the offences punishable under Sections
427, 447, 506 and 120B read with Section 34 IPC.                             E
      At this stage, it is required to be noted that original accused no.1
was a company incorporated under the Companies Act, original accused
nos. 2 & 3 being Chairman and Managing Director of Accused no.1-
company and accused no.4 was arrayed as an accused being Deputy
General Manager (Civil & Env.) of accused no.1. Accused No.5 was             F
the Planner and Executor of the project work of accused no.1.
Likewise, accused no. 6 was also a company incorporated under the
Companies Act, accused nos. 7 & 8 were arrayed as an accused being
Chairman and Executive Director respectively of accused no.6.
Accused no.9 was the Site Supervisor of accused no.6 and accused
no.10 was the Sub- Contractor under accused no.6 and accused nos.            G
11 to 13 were the employees of accused no.10.
       3. Feeling aggrieved and dissatisfied with the summoning order
passed by the learned Judicial Magistrate, First Class, Mangalore for
the offences punishable under Sections 427, 447, 506 and 120B read
with Section 34 IPC, original accused nos. 1 to 5 preferred Criminal         H
274            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     Revision Petition No. 244/2013 and accused nos. 6 to 9 preferred
      Criminal Revision Petition No. 245/2013 before the learned Sessions
      Court.
             3.1 That the learned Sessions Court by its order dated 7.4.2014
      allowed criminal revision petition no. 244/2013 and partly allowed criminal
B     revision petition no. 245/2013 and quashed and set aside the order
      passed by the learned Judicial Magistrate, First Class, Mangalore insofar
      as same was against original accused nos. 1 to 8. The learned Sessions
      Court thus confirmed the order passed by the learned Judicial
      Magistrate, First Class, Mangalore insofar as accused no. 9 is
      concerned.
C
             4. Feeling aggrieved and dissatisfied with the common judgment
      and order passed by the learned Sessions Court passed in Criminal
      Revision Petition Nos. 244/2013 and 245/2013, the original complainant
      preferred the present revision applications before the High Court and
      by the impugned judgment and order, the High Court has dismissed the
D     said revision applications. Hence, the present appeals by the original
      complainant.
             5. Shri Shailesh Madiyal, learned Advocate appearing on behalf
      of the original complainant has vehemently submitted that in the facts
      and circumstances of the case both, the High Court as well as the
E     learned Sessions Court have materially erred in quashing and setting
      aside the order passed by the learned Magistrate summoning accused
      nos. 1 to 8 which was issued for the offences punishable under Sections
      427, 447, 506 and 120B read with Section 34 IPC.
             5.1 It is vehemently submitted that the High Court has not
F     properly appreciated and considered the fact that earlier the complainant
      filed an FIR before the concerned police station but nothing was done
      and therefore the complainant – appellant herein was constrained to
      file a private complaint under Section 200 Cr.P.C.
             5.2 It is submitted that the learned Magistrate after examining
G     the appellant – complainant on oath and after considering the evidence/
      material on record issued summons against accused nos. 1 to 13 for
      the offences punishable under Sections 427, 447, 506 and 120B read
      with Section 34 IPC. It is submitted that therefore the learned Sessions
      Court was not justified in setting aside the order passed by the learned
H     Magistrate summoning the accused.
          RAVINDRANATHA BAJPE v. MANGALORE                                     275
       SPECIAL ECONOMIC ZONE LTD. [M. R. SHAH, J.]

       5.3 It is further submitted that at the stage of summoning the          A
accused, what is required to be considered is whether a prima facie
case is made out on the basis of the statement of the complainant on
oath and the material produced at this stage and the detailed examination
on merits is not required.
       5.4 It is further submitted by the learned counsel appearing on         B
behalf of the complainant that even otherwise there was a specific
allegation in the complaint that accused nos. 1 to 8 conspired with the
co-accused to lay the pipeline under the property of the complainant
and therefore at the stage of issuing process/summons, the revisional
court could not have interfered with the order passed by the learned
Magistrate summoning the accused. It is submitted that being the               C
administrators of the companies, all the executives are vicariously liable.
       5.5 Making the above submissions, it is prayed to allow the
present appeals and quash and set aside the orders passed by the High
Court and the learned Sessions Court and restore the order passed by
the learned Magistrate.                                                        D
       6. Shri Nishanth Patil, learned counsel appearing on behalf of
accused nos. 1 to 5 and Shri P.P. Hegde, learned counsel appearing on
behalf of accused nos. 6 to 8 respectively have vehemently submitted
that in the facts and circumstances of the case and more particularly
when it was found that there are no specific allegations and the role          E
attributed to the accused except the bald statement that all of them have
connived with each other, the learned Sessions Court was absolutely
justified in setting aside the order passed by the learned Magistrate
issuing the process/summons against accused nos. 1 to 8.
       6.1 It is submitted that as held by this Court in catena of decisions
                                                                               F
that issuing summons/process by the Court is a very serious matter and
therefore unless there are specific allegations and the role attributed to
each accused more than the bald statement, the Magistrate ought not
to have issued the process.
       6.2 It is submitted that so far as accused nos. 2 to 5 are
concerned, they were arrayed as an accused being Chairman, Managing            G
Director, Deputy General Manager (Civil & Env.) of accused no.1 and
accused no.5 is the Planner and executor of the project work and all
of them were stationed at Hyderabad at the time of the commission of
the alleged offence and there are no allegations that at the time of
commission of the alleged offence, they were present. It is submitted          H
276            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A     that similarly accused nos. 7 & 8 were arrayed as an accused being
      Chairman and Executive Director of accused no.6 who also were
      stationed at Hyderabad at the time of commission of the alleged offence
      and there are no allegations even against them that at the time of
      commission of the alleged offence, they were present. It is submitted
      that even accused no.7 was aged 82 years. Therefore, the learned
B     Sessions Court has rightly quashed and set aside the order passed by
      the learned Magistrate issuing the process against accused nos. 1 to 8
      herein for the offences punishable under Sections 427, 447, 506 and
      120B read with Section 34 IPC. Heavy reliance is placed on the
      decisions of this Court in the cases of GHCL Employees Stock Option
C     Trust v. India Infoline Limited, (2013) 4 SCC 505; and Sunil Bharti
      Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609.
             7. We have heard the learned counsel for the respective parties
      at length. We have also gone through and considered the allegations in
      the complaint. It is required to be noted that the learned Magistrate
D     issued the process against the respondents – accused nos. 1 to 8 for
      the offences punishable under Sections 427, 447, 506 and 120B read
      with Section 34 IPC. In the complaint, after narrating the description
      of the accused, in paragraphs I to VIII, it is alleged in paragraph IX
      and XIII as under:
             IX. The accused Nos.2 to 5 and 7 to 13 have conspired with
E
      common intention to lay the pipeline beneath the schedule properties
      belonging to the complainant, without any lawful authority and right
      whatsoever. In furtherance thereof they have committed trespass into
      schedule property and demolished the stone compound wall of 7 feet
      height foundation of 3 feet height beneath the ground and 2 feet wide
F     to the extent of about 500 meters and also cut and destroyed about
      100 valuable trees and laid pipeline beneath the schedule properties
      about to the extent of 500 meters. They have used heavy machineries
      for the above said destructive activities in the schedule properties. When
      those accused have committed the said offence the complainant was
      not in station and when he came back on 21-4-2012, he noticed the
G     above said destructive activities in his properties. The accused have
      committed an act of mischief apart from other offenses which caused
      the pecuniary loss not less than Rs.27,00,000/- to the complainant. The
      complainant was not able to cultivate his lands due to the threat of stray
      cattle’s and animals and thereby he had suffered loss of 2 years paddy
      crops and vegetable cultivation. As a result, the complainant has
H
          RAVINDRANATHA BAJPE v. MANGALORE                                    277
       SPECIAL ECONOMIC ZONE LTD. [M. R. SHAH, J.]

suffered nearly about Rs.9,00,000/- and he will continue to suffer same       A
loss till the compound is reconstructed as before. All the accused jointly
and severally are to make good past and future loss to the complainant
in terms of pecuniary measures.
       XIII. It is very pertinent to note that the accused had/has no right
whatsoever to commit to trespass into the schedule property and cause         B
damage thereto as stated supra. Each one of them with common
intention to lay the pipeline by damaging the property of the complainant
and improvements thereof, have committed criminal trespass into the
schedule property and remained inside the property till the act of
devastation was complete.
                                                                              C
       7.1 Except the above allegations, there are no further allegations
in the complaint. It was not even the case on behalf of the complainant
that at the time when the compound wall was demolished and trees
were cut, accused nos. 2 to 5 and 7 & 8 were present. Except the
bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with
common intention to lay the pipeline within the schedule properties           D
belonging to the complainant, without any lawful authority and right
whatsoever and in furtherance they have committed to trespass into
the schedule properties of the complainant and demolished the
compound wall, there are no other allegations that at that time they were
present. Accused nos. 2 to 5 and 7 & 8 are stationed at Hyderabad.
There are no further allegations that at the command of A2 to A5 and          E
A7 & A8, the demolition of the compound wall has taken place. All of
them are arrayed as an accused as Chairman, Managing Director,
Deputy General Manager (Civil & Env.), Planner & Executor, Chairman
and Executive Director respectively. Therefore, as such, in absence of
any specific allegations and the specific role attributed to them, the        F
learned Magistrate was not justified in issuing process against accused
nos. 1 to 8 for the offences punishable under Sections 427, 447, 506
and 120B read with Section 34 IPC.
      8. In the case of Sunil Bharti Mittal (supra), it is observed by
this Court in paragraphs 42 to 44 as under:
                                                                              G
      “(iii) Circumstances when Director/person in charge of the
      affairs of the company can also be prosecuted, when the
      company is an accused person
      42. No doubt, a corporate entity is an artificial person which acts
      through its officers, Directors, Managing Director, Chairman, etc.      H
278           SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A          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.
B
           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
C          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
D          141 of the Negotiable Instruments Act, 1881. In Aneeta Hada
           v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, the
           Court noted 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
E          Negotiable Instruments Act has to be understood. Such a position
           is, therefore, because of statutory intendment making it a deeming
           fiction. Here also, the principle of “alter ego”, was applied only
           in one direction, namely, where a group of persons that guide
           the business had criminal intent, that is to be imputed to the body
           corporate and not the vice versa. Otherwise, there has to be a
F          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.”
           8.1 In the case of Maksud Saiyed v. State of Gujarat, (2008)
G     5 SCC 668, in paragraph 13, it is observed and held as under:
           “13. Where a jurisdiction is exercised on a complaint petition filed
           in terms of Section 156(3) or Section 200 of the Code of Criminal
           Procedure, the Magistrate is required to apply his mind. The
           Penal Code does not contain any provision for attaching vicarious
H          liability on the part of the Managing Director or the Directors of
         RAVINDRANATHA BAJPE v. MANGALORE                                      279
      SPECIAL ECONOMIC ZONE LTD. [M. R. SHAH, J.]

      the Company when the accused is the company. The learned                 A
      Magistrate failed to pose unto himself the correct question viz.
      as to whether the complaint petition, even if given face value
      and taken to be correct in its entirety, would lead to the conclusion
      that the respondents herein were personally liable for any offence.
      The Bank is a body corporate. Vicarious liability of the
      Managing Director and Director would arise provided any                  B
      provision exists in that behalf in the statute. Statutes
      indisputably must contain provision fixing such vicarious liabilities.
      Even for the said purpose, it is obligatory on the part of the
      complainant to make requisite allegations which would attract the
      provisions constituting vicarious liability.”                            C
       8.2 As observed by this Court in the case of Pepsi Foods Ltd.
v. Special Judicial Magistrate, (1998) 5 SCC 749 and even
thereafter in catena of decisions, summoning of an accused in a criminal
case is a serious matter. Criminal Law cannot be set into motion as a
matter of course. In paragraph 28 in Pepsi Foods Limited (supra), it
                                                                               D
is observed and held as under:
      “28. Summoning of an accused in a criminal case is a serious
      matter. Criminal law cannot be set into motion as a matter of
      course. It is not that the complainant has to bring only two
      witnesses to support his allegations in the complaint to have the
      criminal law set into motion. The order of the Magistrate                E
      summoning the accused must reflect that he has applied his mind
      to the facts of the case and the law applicable thereto. He has
      to examine the nature of allegations made in the complaint and
      the evidence both oral and documentary in support thereof and
      would that be sufficient for the complainant to succeed in bringing      F
      charge home to the accused. It is not that the Magistrate is a
      silent spectator at the time of recording of preliminary evidence
      before summoning of the accused. The Magistrate has to
      carefully scrutinise the evidence brought on record and may even
      himself put questions to the complainant and his witnesses to elicit
      answers to find out the truthfulness of the allegations or otherwise     G
      and then examine if any offence is prima facie committed by all
      or any of the accused.”
      8.3 As held by this Court in the case of India Infoline Limited
(supra), in the order issuing summons, the learned Magistrate has to
record his satisfaction about a prima facie case against the accused           H
280             SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A     who are Managing Director, the Company Secretary and the Directors
      of the Company and the role played by them in their respective
      capacities which is sine qua non for initiating criminal proceedings
      against them. Looking to the averments and the allegations in the
      complaint, there are no specific allegations and/or averments with
      respect to role played by them in their capacity as Chairman, Managing
B     Director, Executive Director, Deputy General Manager and Planner &
      Executor. Merely because they are Chairman, Managing Director/
      Executive Director and/or Deputy General Manager and/or Planner/
      Supervisor of A1 & A6, without any specific role attributed and the
      role played by them in their capacity, they cannot be arrayed as an
C     accused, more particularly they cannot be held vicariously liable for the
      offences committed by A1 & A6.
             9. From the order passed by the learned Magistrate issuing the
      process against the respondents herein – accused nos. 1 to 8, there
      does not appear that the learned Magistrate has recorded his satisfaction
D     about a prima facie case against respondent nos. 2 to 5 and 7 & 8.
      Merely because respondent Nos. 2 to 5 and 7 & 8 are the Chairman/
      Managing Director/Executive Director/Deputy General Manager/
      Planner & Executor, automatically they cannot be held vicariously liable,
      unless, as observed hereinabove, there are specific allegations and
      averments against them with respect to their individual role. Under the
E     circumstances, the High Court has rightly dismissed the revision
      applications and has rightly confirmed the order passed by the learned
      Sessions Court quashing and setting aside the order passed by the
      learned Magistrate issuing process against respondent nos. 1 to 8 herein
      – original accused nos. 1 to 8 for the offences punishable under Sections
F     427, 447, 506 and 120B read with Section 34 IPC.
            10. In view of the above and for the reasons stated above, the
      present appeals deserve to be dismissed and are accordingly dismissed.
      Needless to say, that the learned Magistrate shall proceed with the
      complaint against original accused nos. 9 to 13 on its own merits, in
      accordance with law.
G

      Bibhuti Bhushan Bose                                     Appeals dismissed.




H