Misrepresentation and Malpractices-Civil and Criminal Trial Procedure – CS Professional Study Material

Chapter 9 Misrepresentation and Malpractices-Civil and Criminal Trial Procedure – Resolution of Corporate Disputes Non Compliances & Remedies Notes is designed strictly as per the latest syllabus and exam pattern.

Misrepresentation and Malpractices-Civil and Criminal Trial Procedure – Resolution of Corporate Disputes Non Compliances & Remedies Study Material

Question 1.
June [1] (c) “Person once convicted or acquitted not to be tried for same offence again”. Comment on the statement in the light of decided case law(s). (June 2019, 5 marks)
Answer:
Section 300 of Code of Criminal Procedure, 1973: (CrPC) protects a person from being prosecuted for the same offence agai. Section300 of
CrPC cannot be definitely interpreted to mean that if a person steals a property and gets convicted of the offence of theft, he should not be prosecuted for the same offence if it arises out of another theft. Section 300 of CrPC is unique in the sense that it requires either a conviction or acquittal as a pre-requisite for the protection to be available.

In the case of Kerala High Court in Bharat Plywood and Timber Products Private Limited and Onr. V. Registrar of Companies and Another. [2002] 108 Comp Cas 601 (Ker) held that Section 300 of the CrPC provides that so long as an order of acquittal or conviction handed down by a court of competent jurisdiction stands in respect of a person charged with committing an offence, that person cannot again be tried on the same facts for the offence for which he was earlier tried or for any other offence arising there from. Section 300 of CrPC becomes applicable when a court of competent jurisdiction had already tried the accused and that he is either acquitted or convicted. It is also necessary to note that for the first part of sub-section (1) of Section 300 to apply, the prior prosecution and subsequent prosecution should be for the same offence.”

Question 2.
Explain the various types of Criminal Courts under the Criminal Procedure Code, 1973 and their powers in brief. (Dec 2019, 4 marks)
Answer:
According to Section 6 of The Code of Criminal Procedure, 1973, besides the High Courts and the Courts constituted under any law, other than CrPC, there shall be, in every State, the following classes of Criminal Courts, namely:

Courts of Session;
Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
Judicial Magistrates of the second class; and
Executive Magistrates.

Courts of Magistrates are the basic Courts for conducting trial of criminal offences. In metropolitan cities such as Mumbai, Kolkata and Chennai, respectively the capitals of the States of Maharashtra, West Bengal and Tamil Nadu, have special category of Magistrates called Presidency Magistrates / Chief Metropolitan Magistrates. As per Section 28 and 29 of Criminal Procedure code, 1973, following are the criminal court and their powers

Types of Court	Power
High Court	To award any sentence as authorised by a substantive law
Sessions Judge /Additional Sessions Judge	To award any sentence authorised by a substantive law. Sentence of death should be subject to confirmation by High Court.
Assistant Sessions Judge	To award imprisonment up to 10 years and / or fine. For fine, no upper limit has been prescribed
Chief Judicial/Chief Metropolitan Magistrate	To award imprisonment up to 7 years and / or fine. For fine, no upper limit has been prescribed
Judicial Magistrates of Class I / Metropolitan Magistrates / Sub-divisional Judicial Magistrates	To award imprisonment up to 3 years or fine up to 10,000/- or both
Judicial Magistrates of Class II	To award imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees, or of both

Question 3.
“Companies Act, 2013 is mixture of both civil law as well as criminal law.” Comment briefly. (Dec 2019, 4 marks)
Answer:
The Companies Act, 2013 is mixture of both civil as well as criminal provisions with majority being criminal. The civil and criminal provisions under the Companies Act, 2013 can be identified by observing the language used by Act for consequences or noncompliances/contravention of its provisions. The words “liable to penalties” denote civil nature of non-compliances whereas the words “punishable with fine and/or imprisonment and/or both” denote criminal nature of non-compliances.

The Act has clearly laid down the mechanism and the forum for speedy and smooth administration of judicial activities under the Act. The power of adjudication of civil noncompliances (defaults liable for penalties) is being vested with the ROC and the power of adjudication of criminal non-compliances (offences punishable with fine/ imprisonment) is being vested with the special courts with sub-delegation of power of compounding of offences to Regional Director and NCLT.
Thus, the statement given in the question that “Companies Act, 2013 is mixture of both civil law well as criminal law” is correct.

Question 4.
Answer with reasons, under COFEPOSA, 1974:
(i) Can Maharashtra Government order detention of a person in Gujarat?
(ii) A detention order has been issued against a person on several grounds. Some of these grounds have been proved to be non-existent. Is the detention order still valid?
(iii) Can a person detained in Mumbai be shifted to Ahmedabad and \detained there?
(iv) Can any, restriction be imposed on a detained person with respect to communication with others? (Dec 2020, 4 marks)
Answer:
(i) As per section 6 of the The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA, 1974), no detention order shall be invalid on inoperative merely by reason that the person detained there under is outside the limits of the territorial jurisdiction of the Government or officer making the order of detention. Hence, the Maharashtra Government can order the detention of a person in Gujrat.

(ii) According to section 5A of COFEPOSA, 1974, an order of detention made on several grounds will not become Invalid or inoperative merely because one or more of these grounds but not all have been rendered to be irrelevant.
Hence, in the instant above the detention order shall continue to be valid even though some of these grounds have been rendered invalid by virtue of having been proved non-existent.

(iii) According to section 5(b) of COFEPOSA, 1974, every person in respect of whom a detention order has been made shall be liable to be removed from one place of detention in a state to any other state, provided that no order shall be made by a State Government under clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State. Hence, the detained person can be shifted from Mumbai to Ahmedabad, subject to the permission from the appropriate Government.

(iv) In terms of Sec 5(a) of COFEPOSA, 1974, w.r.t. a person detained under the Act, the appropriate Government may, by general or special order, impose such restrictions on the detained person, as to maintenance, interviews or communicating with others.
Hence, any restriction may be imposed on a detained person with respect to communication with others.

Question 5.
(a) A Director of a Limited Company was prosecuted before Metropolitan Magistrate for certain offences involving a punishment up to 3 years imprisonment underthe provisions Companies Act, 2013. The Director contended that Metropolitan Magistrate is not the appropriate Authority to try this case. Whether this contention of the Director is valid? Referring the relevant provisions of the Companies Act, 2013, discuss the powers of various Courts to try the offences under the Companies Act, 2013. (Dec 2020, 4 marks)
(b) Upon prosecution for offences under the Companies Act, 2013. High Court awarded Managing Director of a Company an imprisonment of 3 months. A Director of the Company approaches you seeking advice on filing an appeal against the order of the High Court. Referring to relevant provisions of CrPC, advice the Director. (Dec 2020, 4 marks)
(c) Food Department prosecuted a Director of a Multi-National Company for certain offences. The Case went upto Supreme Court, wherein the Director contended that though he is one of the Director of the Company, he was not in-charge of operations of the Company and hence, cannot be prosecuted. Discuss with relevant case law, if any. (Dec 2020, 4 marks)
Answer:
(a) The moot point under Section 436 of the Companies Act, 2013 is that the offences under the Companies Act, 2013, which are punishable with imprisonment of two years or more are triable only by the Special Court established under section 435 of the Companies Act, 2013.
In terms of Sec 435(2)(b) of the Act, it is only in the case of offences punishable with imprisonment of a term less than two years, the provision empowers a Judicial Magistrate of First class ora Metropolitan Magistrate to try the offence.
As per Sec 435(2) (a) of the Act, only a single judge holding office as Session Judge or Additional Session Judge, is authorised to hear cases involving offences punishable under this Act with imprisonment of two years or more.
The Special Court need not be an altogether new Court established for this purpose. It could be an existing court designated as a Special Court by Notification issued under section 435 of the Companies Act, 2013.
In the above case, the Director is being prosecuted by a Metropolitan Magistrate for offences involving punishment upto 3 yrs and therefore the said Metropolitan Magistrate is not empowered under the Act for hearing such a case. Hence, the contention of the director is valid.

(b) Section 376(a) of Criminal Procedure Code, 1973, states that there shall be no appeal against any order of sentence of a High Court if the punishment awarded is a sentence of imprisonment for a term not exceeding 6 months or of a fine exceeding INR 1000/-.
The proviso under section 376 of Criminal Procedure Code, 1973, states that appeal would however lie in the following situations:

that the person convicted has been ordered to furnish security to keep the peace; or
that a direction for imprisonment in default of payment of fine is included in the sentence; or
that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case.

As per the given provisions the Appeal cannot be filed in the given case, unless the case falls under proviso of Section 376 of Criminal Procedure Code, 1973.

(c) If the Company has officer-in-default specified under Sec 2(60) of the Companies Act, 2013 other Directors cannot be held liable.
In Pepsico India Holdings Private Limited v. Food Inspector and Anr. [2011] 161 CompNas 197 (SC), the Supreme Court held that it is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director iiable in the absence of any specific allegations regarding his role in the management of the Company.
Hence, the Director is right in contending that though he is one of the Director of the Company, he was not in-charge of operation of the Company and hence cannot be prosecuted in the absence of any specific allegations regarding his role in the management of the Company.

Question 6.
Section 2(29) of the Companies Act, 2013 defines and declares what “court” means. For different purposes, different courts are the relevant courts. Elaborate this statement. (Aug 2021, 4 marks)
Answer:
Yes, it is true to say that Section 2(29) of the Companies Act, 2013 defines and declares what “court” means. For different purposes, different courts are the relevant Courts.

High Court:
Section 2(29)(i) provides that Court means the High Court having jurisdiction in relation to the place at which the registered office of the | company concerned is situate, except to the extent to which jurisdiction has f been conferred on any district court or district courts subordinate to that High Court under sub-clause (ii).

District Court:
Section 2(29)(ii) states Court means the district court, in cases where the Central Government has, by notification, empowered any district court to i exercise all or any of the jurisdictions conferred upon the High Court, within [ the scope of its jurisdiction in respect of a company whose registered office is situate in the district.
Further, with specific reference to offences under the Companies Act, 2013, section 2(29) states as under:

Section 2(29)(iii) provides that Court means the Court of Session having jurisdiction to try any offence under this Act or under any previous company law;
Section 2(29)(iv) provides that Court means the Special Court established under section 435;
Section 2(29) (v) provides that Court means any Metropolitan Magistrate or a Judicial Magistrate of the First Class having jurisdiction to try any offence under this Act or under any previous company law;

Consonantly, for the purpose of trying offences under the Companies Act, 2013 or as the case may be for offences arising under the Companies Act, 1956, there are only three Courts – viz., the Court of Session; the Special Court if established or designated by Central Government under section 435 of the Companies Act, 2013 and the Court of the Metropolitan Magistrate or a Judicial Magistrate of the First Class having jurisdiction to try any offence under the Companies Act, 2013 or any previous company law.

Question 7.
Zuber, who is a joint venture partner in a company, had surreptitiously used information acquired in the course of pursuing the joint venture in order to acquire property adjacent to the joint venture site for his own use. The price paid for such deal by the Zuber was from the genuine and disclosed sources of income.
Whether Zuber can be held liable for acquiring such property adjacent to the company? Explain with the help of decided case law. (Aug 2021, 4 marks)
Answer:
Yes, Zuber cpn be held liable since it amounts to breach of fiduciary duty. The facts of the case is similar to those of the case decide in the matter of Say-Dee v. Farah Constructions Pty Ltd [2005] NSWCA 309, In this case, a joint venture partner had surreptitiously used information acquired in the course of pursuing the joint venture in order to acquire property adjacent to the joint venture site for its own advantage. This conduct was in breach of fiduciary duty.
In calculating the profits which the party in breach had made, the Court made an allowance in its favour for its entrepreneurial skill and efforts in taking advantage of and turning to profit the business opportunity it had appropriated to itself. This allowance was deemed appropriate despite the surreptitious way in which the errant fiduciary had behaved.

Question 8.
Explain the role and functions of Public Prosecutors and the Company Prosecutors. (Aug 2021, 4 marks)
Answer:
Public Prosecutor:
Criminal cases are prosecuted by the State representing the public’and the society. Public prosecutors carry out the prosecution in such cases. The role of a prosecutor lies in placing before the court all the material and evidences, whether it helps the accused or otherwise.
Section 24(7) of the Code of Criminal Procedure, 1973 states that a person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor only if he has been in practice as an advocate for not less than 7 years.
Section 24(8) of CRPC states that the Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than 10 years as a Special Public Prosecutor.

The Office of the Public Prosecutor is a very responsible Office and he has an important role to play in the Criminal Justice Delivery System. The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution. The Public Prosecutor is not a Police Prosecutor in the sense that he is not a mouthpiece of the Police, for he is not an Advocate engaged by the State to conduct its prosecutions. Therefore, the Prosecutors cannot be allowed to be controlled either administratively or in any other mode by the Police Department”. It was farther held that “as held repeatedly by the Hon’ble Supreme Court and various High Courts that there should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors from the control or supervision in any form by the Police as otherwise, such control or supervision would only invade into the independence of the institution of Prosecutors, which would only bring harm to the Criminal Justice Delivery System.

Company Prosecutor:
Under the newly inserted Section 443 of the Companies Act, 2013 it has been provided that notwithstanding anything contained in the Code of Criminal Procedure, (CRPC)1973, the Central Government may appoint generally, or for any case, or in any case, or for any specified class of cases in any local area, one or more persons, as company prosecutors for the conduct of prosecutions arising out of this act and the persons so appointed as company prosecutors shall have all the powers and privileges conferred by the Code on Public Prosecutors appointed under section 24 of the Code.

Question 9.
Explain the Summons Case and Warrant Case. Whether court have power to convert Summons Case into Warrant Case and vice-versa? (Aug 2021, 4 marks)
Answer:
Summons-case:
As per Section 2 (w) of the Code of Criminal Procedure, (CRPC) 1972, ‘summons-case’ means a case relating to an offence, and not being a warrant case. This implies that summons cases are cases relating to offences provided they are not warrant cases.

Warrant case:
As per section 2 (x) of the Code of Criminal Procedure, (CRPC) 1973, ‘Warrant- case’ means a case relating to an offence punishable with death, imprisonment for a term exceeding two years.
In other words, if the minimum punishment prescribed by any substantive law for an offence is an imprisonment for a term exceeding two years, the offence will be dealt with as a warrant case.
The basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious offence. It is for the same reason that the trial-procedure prescribed for a warrant case is very elaborate when compared to that prescribed for a summons case.
As per the Code of Criminal Procedure, (CRPC) 1973 in a summons case a summons is to be issued to the accused in the first instance and in a warrant case a warrant of arrest is normally to be issued for the arrest of the accused. The Code of Criminal Procedure, (CRPC) 1973 gives discretion to the Judicial Officer to depart from this general rule if the circumstances so demand in a particular case.

Power of Court to convert Summons Cases into Warrant Cases:
According to per Section 259 of the Code of Criminal Procedure, 1973 during the course of trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, if the Magistrate opines that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, the Magistrate may do so and proceed accordingly.
In case the Magistrate forms an opinion that the case before him ought to be tried as a warrant case, he would commence the proceedings afresh. Warrant case, being a serious offence, not to be converted as Summons Case.

Question 10.
Zurik Ltd. and its Directors were charged with certain offences under Criminal Procedure Code and in the meantime, the Registered Office was shifted from Kochi to Trivandrum. The Form filed for shifting of registered office is still under process by MCA. Meanwhile, the Authorised Officer of the Court wanted to issue summons.
Explain which is the proper address for service of summons under Criminal Procedure Code. (Dec 2021, 4 marks)
Answer:
Service of Summons on Corporate bodies and Societies:
According to Section 63 of the Code of Criminal Procedure, 1973, service of a summon on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

In case of companies formed and registered under the Companies Act, 2013, section 20 provides the mode of service. As per the above situation, a document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by registered post or by speed post or by courier service, or by leaving it at the registered office or by means of such electronic or other mode as may be prescribed.

Further, as per Rule 35 of the Companies (Incorporation) Rules, 2014, a document may be served on a company or an officer thereof through electronic transmission wherein the term, “electronic transmission” means a communication-

1. delivered by:
(a) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, which the company or the officer has provided from time to time for sending communications to the company or the officer respectively;
(b) posting of an electronic message board or network that the company or the officer has designated for such communications, and which transmission shall be validly delivered upon the posting; or
(c) other means of electronic communication, in respect of which the company or the officer has put in place reasonable systems to verify that the sender is the person purporting to send the transmission; and

2. that creates a record that is capable of retention, retrieval and review, and which may thereafter be rendered into Clearly legible tangible form. In case of Mukand Kanaiyalal Patel v. Swarup Shree Yarn Private Limited [2002] 109 Comp Cas 413 (Bom), a director of a company filed an intimation with the Registrar under section 146 of the Act regarding change in the Registered Office of the company and the Bombay High Court held that as the Registrar has not taken on record the change, any service on the changed office does not amount to service as contemplated by law. This gives us the clear impression that service of notice of complaint is a very, very crucial stage, which sets the ball in motion.
In the given case, the registered office address of Kochi is proper address for service of summon under the CRPC, 1973.

Question 11.
‘Directors resemble trustees, equity prohibits a trustee from making any profit by his management, directly or indirectly. It is objectionable to use such power simply or solely for the benefit of directors or merely for an extraneous purpose like maintenance or acquisition of control over the affairs of the Company’. Explain with reference to a case law. (Dec 2021, 4 marks)
Answer:
It is true that it is objectionable for the directors to use power simply or solely for the benefit of directors or merely for an extraneous purpose like maintenance or acquisition of control over the affairs of the company. The following case law may be referred to understand and explain:

The case J.K. Paliwai and Shri B.K. Paliwal v. Paliwal Steel Ltd. and Ors., [2008] 141 Comp Cas 624 (CLB) explain the given statement. In this case, the Principal Bench of the Company Law Board had found that a property of the company had been sold without any authorization by the Board of Directors or shareholders to sell and the provisions of section 293 of erstwhile Companies Act, 1956 have not been complied with and in addition the consideration was also inadequate.
Further, it was observed that the transaction was sham and the sale consideration was deposited in the bank and was withdrawn on the same day.
On these facts, in the above case, the Company Law Board held that the respondents have breached their fiduciary duties as directors. The Company Law Board held that on the role of Directors, the law is well settled.
In some respects, Directors resemble trustees. Equity prohibits a trustee from making any profit by his management, directly or indirectly.
It is objectionable to use such power simply or solely for the benefit of directors or merely for an extraneous purpose like maintenance or acquisition of control over the affairs of the company.
Directors are required to act on behalf of a company in a fiduciary capacity and their acts and deeds have to be exercised for the benefit of the company.
The fiduciary capacity within which Directors have to act enjoins upon them a duty to act on behalf of a company with utmost good faith, utmost care and skill and due diligence and in the interest of the company they represent.
They have duty to make foil and honest disclosure to the shareholders regarding all important matters relating to the company.

Question 12.
“Section 300 of Criminal Procedure Code (CrPC) contains adequate provisions to protect a person from being prosecuted for the same offence again”. Comment with reference to a suitable case law. (June 2022, 5 marks)

Question 13.
X, a Police Officer comes to know from reliable sources that four persons are staying in a house and are planning to kidnap and murder Mohan. He also has information that they possess automatic weapons. The Police Officer apprehends that they will commit the crime at any moment. He directly goes to that house and without any warrant or order from the Metropolitan Magistrate, arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons valid? (June 2019, 4 marks)
Answer:
Section 2(c) of the Criminal Procedure Code, 1973 defines cognizable offences. Cognizable offence means a case in which, a police officer may arrest without warrant, as per the First Schedule of the Criminal Procedure Code. 1973 or under any other law for the time being in force. Cognizable offences are usually offences which are serious in nature like, Murder, Rape, Dowry, Kidnapping etc.
In the given case, all four persons are planning to kidnap and murder Mohan, which is in nature of cognizable offence, hence arrest of all four persons is valid according to section 2 (c) of the Criminal Procedure Code, 1973.

As per section 156 of Criminal Procedure Code 1973, a police officer may, without an order of the Magistrate, investigate any cognizable case. Thus on the basis of the first information report and other materials placed before the Police, if there is a suspicion that a cognizable offence has been committed, the Police Officer may arrest without any warrant.

Question 14.
Mr. Narayanan was the Managing Director of ABC India Limited and his wife Mrs. Kaika was also a director of the Company. Proceedings were initiated by Registrar of Companies (ROC) against the Company and its directors. Mr. Narayanan died while the proceedings were pending. Subsequently, Mrs. Kaika was impleaded as an accused in the proceeding after his death. She filed an application in High Court under section 204 of Criminal Procedure Code, 1973, praying for discharge on the ground that notice had not been served upon her by the ROC.
Would High Court grant relief to Mrs. Kaika on this ground? Answer with reference to Judicial Pronouncement(s). (Dec 2019, 4 marks)
Answer:
The Madras High Court in case of K. Seethalakshmi v. Registrar of Companies and Anor. rejected the plea of the petitioner that the ROC has not issued any notice to her. The Managing Director had died when the proceedings were pending. The petitioner, who was also a director and the wife of the deceased Managing Director was impleaded as an accused in the proceedings. As the petitioner was impleaded as an accused, she filed an application under section 204 of Criminal Procedure Code, 1973, praying for her discharge. She claimed she could not be impleaded as an accused because of the below grounds:

Notice had not been served upon her but on her deceased husband.
When there were other directors, the Registrar had picked out the petitioner to proceed against.

The High Court refusing to discharge the petitioner by dismissing the petition, held that:

The petitioner was a director of the Company, when her husband the Managing Director, died during the pendency of proceedings. Hence, for non-compliance with the provisions of Sections 159 and 220, the director was also liable to be proceeded against and punished under the law. It was the duty of the petitioner as the surviving director, to comply with the provisions of the Companies Act.
The Registrar had impleaded the petitioner, as an accused on the death of her husband, not merely because she was the wife of the deceased managing director but because she was a director of the said company and liable to comply with the mandatory requirements or the Act. Hence, in the background of aforementioned case law, it can be concluded that the High Court would not award any relief to Mrs. Kaika.

Question 15.
Mr. A sold goods to Mr. B amounting to ₹ 1 crore. Mr. B was delinquent in payment, after repeated follow-ups, he issued a cheque for the said amount to Mr. A. The cheque was not honoured and Mr. A filed a cheque bouncing case against Mr. B. The Court issued summons to Mr. B. Later, Mr. A wanted to withdraw the case.
Will the Magistrate permit Mr. A to withdraw the case at this stage ? (Dec 2019, 4 marks)
Answer:
Section 257 of the Criminal Procedure Code, 1973 (CrPC) lays down the circumstances under which a complaint may be withdrawn with the consent of the Court in a summons case. It permits a complainant at any time before a final order is passed in any case, to withdraw with the permission of the Magistrate, his complaint against the accused, or if there be more than one accused, against all or any of them provided he satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint and the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom complaint is so withdrawn.

On a bare reading of this section, it can be manifested that a complainant has no legal or vested right to withdraw a complaint as and when he wishes. Withdrawal of the complaint under section 257 of CrPC is permissible only if the Magistrate is satisfied that there axe sufficient grounds for permitting such withdrawal. This clearly implies that the Magistrate must apply his judicial mind to the reasons, which compel the complainant to withdraw the complaint, before granting permission, Thus, the Magistrate may permit Mr. A to withdraw the case if he is satisfied that there are sufficient grounds for such withdrawal.

Question 16.
Mr. Mon had employed Ramu as a domestic help for quite sometime. Ramu had intention of robbing the house, so he planned the robbery on a day when most of the family members were out. Ramu was caught off guard, when Ms. Mona, mother of Mr. Mon, caught him committing the crime and tried to alert the police. Unfortunately in the scuffle, Ramu ended up killing Ms. Mona and ran away with the valuables. Investigation was initiated and Ramu was caught by the Police. Mr. Mon contended that there are two separate crimes, one of murder and other of burglary and Ramu should be penalized for them separately.
Can offence committed by Ramu be clubbed in a single trial under Criminal Procedure Code, 1898 ? (Dec 2019, 4 marks)
Answer:
Section 220 (1) of Criminal Procedure Code, 1898 provides for single trial for more than one offence. If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial, for every Offence. The above section could be used when different offences committed by a single person or same persons and the trial could be a combined and held as a single trial.
The Calcutta High Court in Madan Gaped DeyandAnor. v. Slate and Anor. held that if several offences are committed in the course of the same transaction, Section 235 of Criminal Procedure Code, 1898 would authorize their joinder for the purpose of a single trial.
If a continuous thread runs through the acts complained of, charges arising out of those acts would be liable to be joined together under this section. Continuity of action, therefore, seems to be a very important test in the matter. Yes, the offences committed by Ramu can be clubbed in single trial.

Question 17.
Registrar of Companies (RoC) prosecuted a Director of a Public Sector Undertaking under the provisions of the Companies Act, 1956 for non-filing of Balance Sheet and Annual Return. The Director pleaded before the Court that the RoC has not followed appropriate procedures while prosecuting him. Whether pleadings of the Director is tenable. Elaborate the provisions of CrPC citing relevant case law. (Dec 2020, 4 marks)
Answer:
Section 197 of Criminal Procedure Code, 1973, provides that the sanction of the appropriate government is required in order to take cognizance of any offence which is allegedly committed by a person who, at the time of commission of the offence, was employed by the Central Government or a State Government.
The Andhra Pradesh High Court in the matter of Andhra Pradesh State Essential Commodities Corporation Limited v. Registrar of Companies [2002] 38 SCL 1016 (AP). quashed the criminal prosecution for an offence under section 220 of the Companies Act, 1956 against the directors of a public sector undertaking on the ground that the necessary sanction for prosecuting the directors under Section 197 of the Criminal Procedure Code, 1973 has not been obtained.
Hence, the pleadings of the Director are tenable.

Question 18.
Aru, the Director of Power Corporation Ltd., a Public Sector Undertaking has been accused of misappropriation and other offences. Further, criminal prosecution was also initiated against him. Aru contends that this prosecution is not legal as necessary approval of the authorities has not been obtained. In background of a decided case law, examine whether prosecution of Aru under CrPC, 1973 is appropriate. (June 2022, 4 marks)

Question 19.
There have been internal family issues between the directors of Sak Ltd., who also hold the majority shares in the Company. Due to these internal issues, the Annual General Meetings were not held for more than two years now. The advisor informed the management that it would result in continuing offence being committed by the Company and it could face penal actions. Explain briefly, what are continuing offences and the factors constituting such offences. (June 2022, 4 marks)

Question 20.
Write short note on Summon and Warrant Case.
Answer:
Summons Case and Warrant Case:
As per Section 2 (w) of CrPC, ‘summons-case’ means a case relating to an ‘ offence, and not being a warrant case. This implies that summons cases are cases relating to offences provided they are not warrant cases. As per Sections (x) of CrPC, ‘Warrant- case’ means a case relating to an offence punishable with death, imprisonment for a term exceeding two years. In other ^ words if the minimum punishment prescribed by any substantive law for an offence is an imprisonment for a term exceeding two years, the offence will [ be dealt with as a warrant case. The basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less l serious offence. It is for the same reason that the trial-procedure prescribed for a warrant case is very elaborate when compared to that prescribed for a f; summons case.

Question 22.
Write short note on Conviction.
Answer:
Trial procedure terminates with the pronouncement of judgement which may be acquittal or conviction.

If the Magistrate, upon taking the evidence for the prosecution and for the defence, and such further evidence, if any, as he may on his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal as per Section 255(1) of CrPC.
When the prosecutor has sought the assistance of the court for securing the attendance of the witnesses, the court cannot refuse to take steps for securing attendance of such witnesses and pass an order of acquittal on the ground that the case fails for want of evidence.
But if the prosecution did not take proper steps to produce the witnesses or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date.
Under such circumstances, the Magistrate can record an order of acquittal under Section 255 of CrPC, if there is no evidence to hold the accused guilty,
Though there may be no charge framed in a summons case, the details of the offence will be available in the complaint or summons.
As per Section 255 (3) of CrPC, a Magistrate may convict an accused of any offence, if he is convinced that from the facts admitted or proved, the accused appears to have committed the said offence.
As such a person accused of a particular offence triable as a summons case, can be convicted of a totally different and unconnected offence. But the Magistrate should form an opinion that the accused would not be prejudiced thereby.

Question 23.
Discuss the Trial Procedure before a Session Court.
Answer:
As the Judge of a Special court is going to be of the rank of the Sessions Judge or the Additional Sessions Judge, the Special Court has to follow this procedure except as regards matters that are contained under the Companies Act, 2013 (the substantive law relating to offences triable by the Special Court established or designated under Section 435 of the Companies Act, 2013), as if it were a trial before a Court of Sessions.

Sections 225, 226 and 227 relate to the stage prior to the framing of charge. Section 228 provides for the framing of charge against the accused person.
If after the charge is framed the accused pleads guilty, Section 229 provides that the Judge shall record the plea and may, in his discretion, convict him thereon. However, if he does not enter a plea of guilty, Sections 230 and 231 and provide for leading of prosecution evidence.
If, on the completion of the prosecution evidence and examination of the accused, the Judge considers that there is no evidence that the accused committed the offence with which he is charged, the Judge shall record an order of acquittal.
If the Judge does not record an acquittal under Section 232, the accused would have to be called upon to enter on his defense as required by Section 233. After the evidence-in-defense is completed and the arguments heard as required by Section 234, Section 235 requires the Judge to give a judgment for the case.
If the accused is convicted, Section 235(2) requires that the Judge shall, unless he proceeds in accordance with the provisions of Section 360 of CrPC, hear the accused on the question of sentence and then pass sentence on him according to the law.
Section 360 pertains to setting off the convicted person on probation for good conduct.
Section 353 of CrPC requires the Judgment to be pronounced in the open court. Even if the accused is in custody, he should be brought to the court when the judgment is pronounced.

Section 354 specifically requires the Court to state in the Judgment the offences for which the accused has been convicted and sentenced or of which he has been acquitted. As per Section 354 of CrPC, the Judgment:
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; and
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
Section 354(2) states that when the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative section.
It may be noted that Special Court has powers, while trying offences under the Companies Act, 2013, to try other offences too. Ultimately the Court proceeds pass the Judgment, if it has some difficulty in mentioning the exact provision, this resolution contained in this sub-section would come handy.
Section 354(3) of CrPC stipulates .that when the conviction is for an offence punishable with death or, in alternative, with the imprisonment for life or imprisonment for term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
Section 354(5) of CrPC states that when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead:
Section 354(6) states that every order under Section 117 or Section 138(2) and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.
Section 355 of CrPC is concerned with the manner in which a Metropolitan Magistrate will make the Judgment. Judgement should state the below points in all the cases in which an appeal lies from the final order either under Section 373 or under Section 374(3):
(e) the senal number of the case;
(f) the date of the commission of the offence;
(g) the name of the complainant (if any);
(h) the name of the accused person, and his parentage and residence;
(e) the offence complained of or proved;
(i) the plea of the accused and his examination (If any); (g) the final order;
(j) the date of such order;

Section 356 et CPC prescribes the requirement regarding making an order for notifying address of previously convicted offender.
Section 357 of CrPC is about the power of the Court to order payment of compensation. Such order could require a part of the tine to be awarded with regard to
(a) defraying the expenses incurred in the prosecutrnn;
(b) payment to any person for compensation of any loss or injury caused by the offence, when compensation is, in opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the
death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who, under the Fatal Accidents Act, 1855 (13 of 1865), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person ¡s convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of. stolen property knowing or having reason to believe the same to be stolen in compensating any bonafide purchaser of such property fór the loss of the same if such property is restored to the possession of the person entitled thereto
Section 357(2) of CrPC makes dear that it the line is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal was presented, then before the decision of the appeal.
Section 357(3) states that when a Court imposes a sentence of which fine does not form a part, the Court may, while passing the judgment, order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
Section 357(4) of CrPC contains an important declaration that the type of order referred to in this Section may also be made by an Appellate Court or by the High Court or Court of Session while exercising its powers of revision.
Section 359 provides for an order in regard to the payment of costs in non-cognizable cases.

Question 25.
Discuss the procedure of appeals under CRPC.
Answer.
1. Section 372 of CrPC: clearly states that there is no question of preferring any appeal against any order unless the statute specifically provides.
Section 373 of CrPC will apply with respect to appeals from orders requiring security or refusal to accept or rejecting security for keeping
peace or good behaviour.

2. Section 374 enables appeals by a person who has been convicted of an offence. Sections 375 and 376 contain the restrictions relating to appeals.
Section 374 of CrPC says as follows:

Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. [Section 374(1)]
Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial; may appeal to the High Court. [Section 374(2)]

3. Section 375 of CrPC states that there shall be no appeal when the conviction in a case is pursuant to the accused pleading guilty if the order of conviction was issued by a High Court. If the conviction in such cases is passed by a Court of Session, Metropolitan Magistrate or Courts of Judicial Magistrates, the appeal may lie only with respect to the extent or legality of the sentence.

4. Further, Section 376 of CrPC states that there shall be no appeal against any order of sentence of a High Court if the punishment awarded is a sentence of imprisonment for a term not exceeding 6 months or of a fine exceeding ₹ 1,000/. In the case of an offence in which a sentence of imprisonment for a term not exceeding 3 months or of fine not exceeding ₹ 200/-, or of both, no appeal can be preferred.

5. A proviso under Section 376 of CrPC says that appeal would however lie in the following situations:

that the person convicted has been ordered to furnish security to keep the peace; or
that a direction for imprisonment in default of payment of fine is included in the sentence; or
that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount here in-before specified in respect of the case.

There are several offences under the Companies Act, 2013 that are punishable with imprisonment which may extend to 6 months. Further, there are offences in which punishment by way of fine cannot be less than the prescribed minimum amount.

6. (2) if any company fails to file the resolution or the agreement under sub- section(1) before the expiry of the period specified therein, such company shall be liable to a penalty of one lakh rupees and in case of continuing failure, with a further penalty of five hundred rupees for each day after the first during which such failure continues, subject to a maximum of twenty-five lakh rupees and every officer of the company who is in default including liquidator of the company, if any, shall be liable to a penalty of fifty thousand rupees and in case of continuing failure, with a further penalty of five hundred rupees for each day after the first during which such failure continues, subject to a maximum of five lakh rupees.

Question 26.
Discuss the procedure of appeal in case of acquittal.
Answer:
1. Section 378(1) states that save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5):
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

2. Section 378(2) of CrPC states that if such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal:
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session m revision.

3. Section 378(3) states that no appeal under sub-section (1) or sub-section (T) shall be entertained except with the leave of the High Court. In other words the High Court has powers to admit the appeal or refuse to admit the same. Without obtaining the leave of the High Court, the appeals under sub-sections (1) and (2) of Section 378 are not possible.

4. Section 378(4) of CrPC states that if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

5. Section 378(5) of CrPC states that no application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant public servant, and sixty days in every other case, computed from the date of that order acquittal Registrar of Companies must certainly be regarded as a public servant and can avail the benefit of 6 months for preferring an appeal.

6. Section 378(6) of CrPC states that if, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). In fact, window for appeal is limited and as stipulated in Section 372 of CrPC, no appeal shall lie unless otherwise provided.

7. Section 444 of the Companies Act, 2013 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Central Government may, in any case arising under this Act, direct any company prosecutor or authorise any other person either by name or by virtue of his office, to present an appeal from an order of acquittal passed by any court, other than a High Court, and an appeal presented by such prosecutor or other person shall be deemed to have been validly presented to the appellate court.

Misrepresentation and Malpractices-Civil and Criminal Trial Procedure Notes

Object of trial:

The avowed object of a trial is to find out the truth and determine the innocence or the guilt of the accused.
The concept of criminal justice system is to ensure that not even one innocent gets punished, though due to various reasons, many offenders would have escaped the clutches of law.
Defaulters and offenders who have committed the default and the offence should not be spared even while providing a free and fair trial procedure.
Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
The object of Article 21 is to prevent encroachment upon personal liberty of a person save in accordance with law and in conformity with the provisions thereof.
Hence, depriving the personal liberty of a person should be strictly in accordance with the provisions of natural justice and such deprivation should be in accordance with the procedure established by law.

Criminal Proceeding vis-a-vis Civil Proceeding:

A civil proceeding is concerned with a civil right, whether with reference to common law or a law created by any statute.
A civil proceeding is distinguished from a criminal proceeding by the fact that if the criminal proceeding is taken to a logical conclusion and if the accused is found guilty, there may be imposition of a sentence of fine or imprisonment or both including a capital punishment, if the statute so provides.
In civil proceeding there may be an award of compensation and damages.
A criminal proceeding includes all proceedings which are capable of being instituted under ordinary criminal law of land and is not confined to proceedings under CrPC.
Prosecution of an offence under companies Act, 2013 or for that matter those under the Foreign Exchange Management Act, 1999 or the Securities and Exchange Board of India Act, 1992 or the Securities Contracts (Regulation) Act, 1956 and other statutes are criminal proceedings and the complaints filed are criminal cases and, subject to provisions of such statutes, CrPC will apply to regulate the trial of offences under such laws.

Criminal Courts and Civil Courts:
The Gujarat High Court in Natvarial A.Jani v. N.N Jain, Chairman and Managing Director, Prestige Foods Limited[1999] 98 Comp Cas 720 (Guj), observed as follows:

The civil liability or responsibility arising out of a civil nature under a statute is one thing and it is another thing that the penalty imposed by that very statute necessarily has to be treated under CrPC read with relevant provisions of the statute which makes that particular act an offence.
The Civil Court, ordinarily is to be understood with reference to the Civil Procedure Code and whenever there is a reference to a principal court of original jurisdiction, it would be a District Court and that was originally known in the Act.
Very rarely the High Court came into the picture as the court of first instance.
Once it is an offence, obviously, no Civil Court can exercise its jurisdiction and the punishment has to be awarded by a competent court established under CrPC.
It is not to say that the statute creating an offence may not provide for a forum duly empowered to deal with penal provisions.

Public Prosecutors and Company Prosecutors

Criminal cases are prosecuted by the State representing the public and the society.
Public prosecutors carry out the prosecution in such cases.
The role of a prosecutor lies id placing before the court all the material and evidences, whether it helps the accused or otherwise.
Section 24(7) of CrPC states that a person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor only if he has been in practice as an advocate for not less than 7 years.
Section 24(8) of CrPC states that the Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than 10 years as a Special Public Prosecutor.

Trial Procedure for Summon Cases:

A summon is an authoritative call to the accused person to appear in court to answer to a charge of an offence.
As per P. Ramanatha Iyer’s Law Lexicon, a “summon” is a process issued from the office of a court of justice requiring the persons to whom it is addressed to attend the court for the purpose therein stated.
‘Summons’ is the name of a writ, commanding the sheriff, or other authorised officer, to notify the party to appear in court to answer a complaint made against him and in writ specified, on a day therein mentioned.

Summons Case and Warrant Case:

As per Section 2 (w) of CrPC, ‘summons-case’ means a case relating to an offence, and not being a warrant case. This implies that summons cases are cases relating to offences provided they are not warrant cases.
As per Section 2 (x) of CrPC, ‘Warrant- case’ means a case relating to an offence punishable with death, imprisonment for a term exceeding two years.
In other words if the minimum punishment prescribed by any substantive law for an offence is an imprisonment for a term exceeding two years, the offence will be dealt with as a warrant case.
The basis of the classification is the seriousness of the offence to which the case relates.
A warrant case relates to a serious offence while a summons case relates to a comparatively less serious offence.
It is for the same reason that the trial-procedure prescribed for a warrant case is very elaborate when compared to that prescribed for a summons case.

Summary Trial:

In respect of certain petty cases including mostly summons cases and a few specific warrant cases, the Magistrate concerned has been given discretion to try these cases in a summary way.
The procedure for summary trials is essentially one prescribed for the trial of a summons case but in an abridged form.

Constitutional Duty:
Article 22 of the Constitution of India requires that every person who is arrested and detained shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

Service of Summons on Corporate Bodies and Societies:
As per Section 63 of CrPC, service of a summon on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

Framing of Charge:

As provided under Section 251 of CrPC, in a trial of a summons case it is not necessary to frame a formal charge according to the provisions contained in Sections 211 to 213 of CrPC. The provisions relating to joinder of charges and joint trial of persons are applicable in respect of trials of summons cases.
Similarly, if a summons case is to be tried jointly with a warrant case, the procedure for trial of warrant cases must be followed and a charge will have to be framed for the summons case.

Summoning of Witnesses of Prosecution:

As per Section 254 of CrPC, the Magistrate may, if he thinks fit, on the application of the prosecution, issue summons to any witness directing him to attend or produce any document or thing.
A Magistrate is not bound to issue process to compel the attendance of any witness either on the application of the complainant or the accused.
A Magistrate cannot refuse to examine a witness. As per Section 254(3) of CrPC, the Magistrate may, before summoning any witness in pursuance of an application as aforesaid, direct that the reasonable expense of the witness incurred in attending for the purposes of the trial be deposited in court.
Under Section 254 of CrPC, similar provision exists for summoning the witnesses of the accused also.

Acquittal or Conviction:

Trial procedure terminates with the pronouncement of judgement which may be acquittal or conviction.
If the Magistrate, upon taking the evidence for the prosecution and for the defence, and such further evidence, if any, as he may on his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal as per Section 255(1) of CrPC.
When the prosecutor has sought the assistance of the court for securing the attendance of the witnesses, the court cannot refuse to take steps for securing attendance of such witnesses and pass an order of acquittal on the ground that the case fails for want of evidence.
But if the prosecution did not take proper steps to produce the witnesses or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date.
Under such circumstances, the Magistrate can record an order of acquittal under Section 255 of CrPC, if there is no evidence to hold the accused guilty.

Conviction without being “charged”:

Though there may be no charge framed in a summons case, the details of the offence will be available in the complaint or summons.
As per Section 255 (3) of CrPC, a Magistrate may convict an accused of any offence, if he is convinced that from the facts admitted or proved, the accused appears to have committed the said offence.
As such a person accused of a particular offence triable as a summons case, can be convicted of a totally different and unconnected offence. But the Magistrate should form an opinion that the accused would not be prejudiced thereby.

Effect of non* appearance or death of complainant:
As per Section 256(1) of CrPC, if the summon has been issued on a complaint, and on the day appointed for the appearance of accused, or any day subsequent thereto on which the hearing may be adjourned, the complainant does not appear, the Magistrate may take any one of the following steps:
x. He may acquit the accused.
xi. He may adjourn the case to any other day.
xii. He may dispense with the personal attendance of the complainant and proceed with the case.
Section 256(2) of CrPC states that the above provisions contained in
Section 256(1) of CrPC shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

Investigation by Police:

As already stated most of the ottences against the Act are non-cognizable off ences and the Magistrate will not refer the case to Police.
The Karnataka High Court in Anantha R.Hegde v. Capt. T.S.Gopalakrishna [1998] 91 Comp Cas 312 (Kar). held that as far as this position of law is concerned, there is absolutely no quarrel and it is also true that the offences alleged against the petitioners are only non-cognizable offences and the Magistrate has rightly not referred it to the police.

Issue of Warrant for Recovery of fines:
As per Section 421 of CrPC, where an offender has been sentenced to pay a fine, the Court has the authority to issue a warrant for the levy of the amount by attachment and of any movable properly belonging the lite offender and further can issue a warrant to the Collector of the District authorizing him to realize the amount as arrears of land revenue or movable or immovable property or both of the defaulter.

Offences Relating to Perjury:

Section 340 of CrPC contains the procedure to be followed for prosecuting offences referred to under 195 of the CrPC. Section 340 should be read in conjunction with Section 195 of CrPC.
When an offence under Section 195 of the Code of Criminal Procedure, 1973 [CrPC] has been committed, the person aggrieved must make an application to the Court before which the main proceedings is taking place requesting the Court to make a complaint in writing to the appropriate judicial magistrate so as to prosecute the persons who appear to have committed the offence.

Appeals under CrPC :

Section 372 of CrPC clearly states that there is no question of preferring any appeal against any order unless the statute specifically provides. Section 373 of CrPC will apply with respect to appeals from orders requiring security or refusal to accept or rejecting security for keeping peace or good behaviour.
Section 374 enables appeals by a person who has been convicted of an offence. SectIons 375 and 376 contain the restrictions relating to appeals.

Section 374 of CrPC says as follows:

Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. [Section 374(1)]
Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial; may appeal to the High Court.[Section 374(2)]

Appeal in case of Acquittal:
Section 378(1) states that save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5):
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

Powers of the Appellate Court:

Section 386 of the CrPC declares the powers of an Appellate Court. It will come into play only in a case where the appeal has not been dismissed summarily under Section 384 through the power to dismiss an appeal summarily is by itself a power of the Appellate Court.
With respect to the powers of the Appellate Court, Section 386 of CrPC states that the Appellate Court may dismiss the appeal if it considers that there is no sufficient ground for interfering with the order under appeal.
Before doing so, the Appellate Court must peruse the records, hear the appellant or his pleader, if he appears, and also the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the Appellate Court must hear the accused too.

Don’t Thwart Prosecution:

Justice delayed is Justice denied. Persons who occupy a very respectable position in Corporate India try their best to scuttle the prosecution at any cost.
The Madhya Pradesh High Court in case of Dhirubhai H.Ambani. v. Sonia Sethi and Anor. [2001] 106 Comp Cas 486 (MP) held that Dhirubhai H.Ambani should not have any objection to the service of summons to Reliance Petroleum Limited through him, for the reason that it is not in dispute that he is the executive chairman of the Reliance Petroleum Limited. On the other hand, the court expected that Dhirubhai H. Ambani who was one of the leading captains of the industries in India, should honour the summons of the court.
By obeying the legal process of the court the prestige of Dhirubhai H.Ambani was not likely to go down. On the other hand, his stock was bound to go up as a law-abiding citizen.

Continuing Offences:

Before dwelling deep into the meaning of the expression “Continuing Offences”, it would be necessary to understand Section 472 of Code of Criminal Procedure which states that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Section 472 is essentially the most relevant section of CrPC when it comes to continuing offences.
It is necessary to understand how the expression “Continuing Offences” has to be construed in order to answer those questions.
This expression has been the subject matter of hundreds of cases, not only in relation to offences under the Companies Act, but also in relation to several other statutes. Therefore, a review of those decisions would help in understanding the subject in depth.

Offences for which no separate penal clause exists:

Offences under various sections of the Act for which no separate penal clause has been provided are punishable under Section 450 of the act.
Section 450 states that if a company or any officer of a company or any other person contravenes any of the provisions of this Act or the rules made thereunder, or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, and for which no penalty or punishment is provided elsewhere in Offences under Corporate Laws regulations also enlarge the scope of “Connected Person” by including all the persons, entities connected with the company at that time or six months prior to the alleged act of insider trading.

Misrepresentation and Malpractices-Civil and Criminal Trial Procedure – Resolution of Corporate Disputes Non Compliances & Remedies Study Material

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