Whether Magistrate can issue process against accused even though no list of witnesses is filed?

The provisions of Sub-section (2) of Section 204 of the Code are mandatory in the sense, a process issued before filing the list of witnesses would be invalid. This sub-section is coached in a negative language and it goes to the power of the Magistrate to issue summons or warrants, as the case may be. Having regard to the wordings of Sub-section (2) of Section 204 of the Code, it is clear that the filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and that alongwith summons or warrant issued under Sub-section (1) ofSection 200 of the Code, a copy of the complaint ought to be sent to the accused. It is, therefore, not competent for a Magistrate to issue process without complying with these mandatory provisions (See Chaturbhuj v. Nahar Khan AIR 1958 MP 28 : (1958 Cri LJ 50) : However, if the requirements of the offence alleged Under Section 406, I.P.C. satisfied (Sic) the Court by the statement of the complainant itself, being the only witness, the trial Court may, in the circumstances of the case, issue process against the accused persons even without furnishing any list of witnesses.

Madhya Pradesh High Court

Bairo Prasad And Anr. vs Smt. Laxmibai Pateria on 27 February, 1991

Equivalent citations: 1991 CriLJ 2535

Bench: B Lal

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Whether vicarious liability can be imposed upon any person for acts of other person for offence of criminal breach of trust U/S 406 of IPC?

The learned counsel for the petitioners has rightly argued that in the absence of any clear, specific and unambiguous allegations either concerning entrustment of articles of dowry (constituting Istri Dhan) at the time of the marriage, to a particular accused, or, at a later stage, in the absence of specific allegations either that the accused refused to return Istri Dhan or articles of dowry entrusted to any individual accused or that the same were, dishonestly and mala fide retained by that particular accused, in order to cause wrongful gain to him and wrongful loss to the complainant, no prima facie case for commission of any offence punishable under Section 406, I.P.C. would be made out against that particular accused.

 Mere general allegations in the complaint either concerning entrustment of articles of dowry constituting istridhan to all the accused, or, their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima facie case for commission of offence punishable under Section 405 or 406, I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with mala fide intention retained the same and had refused to return those articles to the wife for whose exclusive use such articles were allegedly entrusted to him, no prima facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima facie be said to be responsible only for his individual acts and cannot be fastened with joint or vicarious liability.

Punjab-Haryana High Court

Dr. Vinod Kumar Goyal And Ors. vs Union Territory And Ors. on 14 December, 1990

Equivalent citations: 1990 CriLJ 2333

Bench: S Grewal

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When directors of company should not be held vicariously liable for offence committed by company under S 406 of IPC?

As, admittedly, drafts were drawn in the name of the Company, even if the Appellant was its Managing Director, he cannot be said to have committed an offence Under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.

Equivalent Citation: 2014(4)RCR(Criminal)908

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2090 of 2014 (Arising out of SLP (Crl.) No. 3099 of 2013)

Decided On: 22.09.2014

 Uday Shankar Rao Vs. Amarendera Kumar Dutta

Hon'ble Judges/Coram:T.S. Thakur and R. Banumathi, JJ.

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Whether offence of criminal misappropriation of property is made out when property is not entrusted to accused?

Criminal - Illegal gratification - Sections 147 of Indian Penal Code, 1860 and Section 368 of Cochin Penal Code - Appellant and accused No. 2 were joint receivers of textile business - Appellant charged for receiving large sums of money by way of illegal gratification as motive and reward for allotting cloth bales produced in mills - Appellant charged for offence under Section 147 for accepting illegal gratification and for offence under Section 389 for criminal breach of trust and also for abetment and entering into conspiracy for commission of these offences - Appellant and his co-accused acquitted by Special Magistrate who made Order of acquittal in favour of them - On appeal High Court set aside Order of acquittal made in favour of appellant - Hence, present appeal - Appellant contended that High Court reversed Order of acquittal made by Trial Court without adverting to or displacing main grounds upon which decision of Trial Judge rested - Further contended that offence committed by appellant cannot constitute breach of trust though it may amount to taking of illegal gratification - Charge nowhere indicates that the offence consisted in wrongful use or disposal of these goods in violation or any direction of law and it was not stated also what these directions of law were - Held, appellant cannot be convicted for offence of breach of trust - Order of High court set aside - Appeal allowed

The learned Advocate-General appearing for the State Government saw the difficulty in the way of establishing that there was any entrustment with the accused in respect of the sum of Rs. 23,100 paid to him by P. W. 1. He tried to get round this difficulty by saying that it could be held on the facts of this case that the entrustment with the accused was in respect of the goods of the mills and the criminal breach of trust consisted in disposing of the goods contrary to the directions of the court and misappropriating the sale proceeds. It is not necessary to enter into the merits of this argument for the simple reason that this was not the charge upon which the accused was tried.

The subject of criminal breach of trust, as stated in the charge, was a sum of Rs. 23,100 and the definite allegation against the accused was that he and his co-receiver functioning as public servants neither remitted this amount to the credit of the company, nor brought it to the company's accounts, but dishonestly misappropriated the same with the intention of causing illegal loss to the company and illegal gain to themselves. No doubt the charge, which we have set out in the beginning, refers to the two accused having custody of the company's goods, but the charge nowhere indicates that the offence consisted in wrongful use or disposal of these goods in violation or any direction of law, and it was not stated also what these directions of law were.

Supreme Court of India

Chelloor Mankkal Narayan ... vs State Of Travancore-Cochin on 10 November, 1952

Bench: M. Patanjali Cji, B. K. Mukherjea, S. R. Das, V. Bose, G. Hassan

 Citation: AIR1953SC478, 1953()KLT173(SC),1954 CRLJ102 

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