LatestLaws.com Ex-parte proceeding against company in criminal trial: by Rakesh Kumar Singh First of all, we need to understand that company is a separate legal entity and therefore whenever it commits any offence, it can be arrayed as an accused like any other person. There is no necessity to name or add any officer of the company in a complaint. In a case where there are two accused, both the accused will have their individual rights, claims & obligation. Position will not change if one of those accused is a company. 2.
e know know that that unles unlesss the the law law speci specific ficall ally y provi provides des,, an an accus accused ed cann cannot ot be be repre represen sented ted throug through h
any other person. !ection"2#$ of %rP% and 2# of '( )ct are general e*amples of such facility. The third provision in this regard is !ection"+# %rP% which provides for representation of accused through other. other. It provides for the following+#. Procedure when corporation or registered society is an accused." /01 In this section, corporation means an incorporated company or othe otherr body body corp corpor orat ate, e, and and incl includ udes es a soci societ ety y regi regist ster ered ed unde underr the the !ocieties 3egistration )ct, )ct, 0$# /20 of 0$#1. /21 here a corporation is the accused person or one of the accused persons in an in4uiry or trial, it may appoint a representative for the purpose of the in4uiry or trial and such appointment need not be under the seal of the corporation. /+1 here a representative of a corporation appears, any re4uirement of this %ode that anything shall be done in the presence of the accused or shall be read or stated or e*plained to the accused, shall be construed as a re4u re4uir irem emen entt that that that that thin thing g shal shalll be done done in the the pres presen ence ce of the the representative or read or stated or e*plained to the representative, and any re4uirement that the accused shall be e*amined shall be construed as a re4uirement that the representative r epresentative shall be e*amined. /51 here a representative of a corporation does not appear, any such re4uirement as is referred to in sub" section /+1 shall not apply. /1 here a statement in writing purporting to be signed by the managing director of the corporation or by any person /by whatever name called1 having, or being one of the persons having the management of the affairs
LatestLaws.com of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the %ourt shall, unless the contrary is proved, presume that such person has been so appointed. /$1 If a 4uesti 4uestion on arises arises as to whethe whetherr any person, person, appea appearin ring g as the representative of a corporation in an in4uiry or trial before a %ourt is or is not such representative, the 4uestion shall be determined by the %ourt. +.
%omp %ompan any y may may appo appoin intt one one pers person on to rep repre rese sent nt it it in the the cas case. e. The The e*pr e*pres essi sion on may appoint
clearly shows a discretion with the company either to appoint or not to appoint any person to represent it. !ince, the choice lies with the company in terms of statute, neither the court nor the complainant will have any right to compel anyone to represent the company. company. 5.
6nce 6nce a repr repres esen enta tati tive ve appe appear arss in the cou court, rt, all all the the legal legal re4u re4uire ireme ment ntss which which are are re4ui re4uire red d to
be followed for any accused will have to be followed with reference to such representative. .
hat are the re4uirements-
Anything shall be done in the presence of accused:- e know that firstly, charge7notice needs to be given in the presence of accused. !econdly, !econdly, evidence has to be recorded in the presence of accused.
Shall be read, stated or explained to the accused:- e know that charge needs to be read over & e*plained to the accused and particulars of offence need to be stated to the accused.
Accused shall be examined:- 8nder !ection"2+9 & +0+ %rP%, accused normally can be e*amined. $.
!o all all the the afor aforesa esaid id will will be done done with with refe referen rence ce to the the repr represe esenta ntativ tivee of the compan company y once once he he
appears. Interestingly, there is nothing in the aforesaid to invoke the bail :urisdiction or warrant :urisdiction and therefore, there is no necessity of bail for such representative and further that a court cannot issue warrants against the representative even if on any occasion he fails to appear. appear. ;.
e know know tha thatt if any any accu accuse sed d fail failss to appe appear ar in in the the cour courtt on sum summo mons ns hav havin ing g been been ser serve ved, d,
court can issue a warrant against him. The tricky 4uestion is what will happen if the company is served but no one appears in the court. The answer lies in !ection"+#/51 which reads as Where a
representatie of a corporation does not appear, any such re!uirement as is referred to in sub-
LatestLaws.com section "#$ shall not apply . It clearly provides the answer. The aforesaid three re4uirements will not apply to a situation where no representative appears in the court. 'eaning thereby that charge need not be framed, evidence need not be taken in the presence of an accused, !) of accused need not be recorded. .
'ost 'ostly ly,, che4 che4ue ue boun bounce ce case casess /pun /punis isha habl blee unde underr !ect !ectio ion" n"0+ 0+
!ection"+# %rP% for a simple reason that a che4ue can be issued by a company and as such, it is liable for criminal prosecution. If we see the procedure for %ogni>anc ancee & affid affidavi avitt eviden evidence= ce= +. !umm !ummon onss to accu accuse sed= d= 5. )ppe )ppeara aranc ncee of acc accus used ed== .
Till ill the poi point nt numb number er"+ "+,, there there is no rol rolee of the the accu accuse sed. d. ?ue ?ue to non non appe appear aran ance ce of of any any
repres represent entati ative ve,, the point point number number"5 "5 loses loses its signifi significa cance nce.. e have have seen seen that that in cases cases of non" non" appearance, the re4uirement of stating particulars of offence does not apply, so point" also goes. ation of fine is entirely a different thing and need not to be confused with the actual trial.
LatestLaws.com 0#.
6ne may ask what what to do do if ther theree are are three three acc accuse used, d, one one is is compa company ny and and the the othe otherr two are are its its
directors but no one appears on behalf of the company and the directors are absconding. )nswer is simple. Aaw nowhere says that a :oint trial is mandatory. 6nce a company is served with the summons and it does not appoint a representative, %ourts can invoke !ection"+# /51 %rP% and proceed to decide the case against the company irrespective of appearance or non"appearance of other accused persons. Trial of remaining accused persons absconding can be separated. @oint and separate trial can however be made the sub:ect matter of another paper as the same re4uires a detailed discussion. 00.
Bowe Boweve verr, if there there are are thre threee accu accuse sed, d, one one is a comp compan any y and and othe otherr two two its its dire direct ctor or,, and and
directors are appearing in the case but are not representing the company, it would not be a prudent e*ercise to convict the company straight away. It would be better if the court notes the situation about non"appearance on the part of the company and that the court will follow !ection"+#/51 %rP% as conse4ue conse4uence nce of non"appea non"appearanc rancee and then allow allow the trial to proceed proceed wherein evidence evidence of prosecution and the remaining accused may be taken. Thereafter the court should pronounce its :udgment. The reason is obvious. ) finding of guilt against the company would be a sine 4ua non for convicting the directors on vicarious count. ?uring the trial, the directors may show that case of the complainant could not sustain due to want of e*isting liability or for any other :ustified reason and as such, the company was not liable at all and conse4uently, there was no 4uestion of invoking vicarious liability principle. 02. 02.
applicable for any offence which is committed by a company violating any law for the time being in force.
Some useful %udgments: Puneet Cupta vs !tate dated 0.#;.2#0+ ?elhi 3a:esh )garwal )garwal vs !tate dated #2.#;.2#0# ?elhi ?ow )gro vs %DI dated 09.#.2#0+ PB% !.).Ehan vs 8nion of India dated 29.#9.2#00 29.#9.2#00 'B%
