M/S Admiral Marine Service Pvt. Ltd. And Others v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE TIRTHANKAR GHOSH CRR/3/2022 M/s Admiral Marine Service Pvt. Ltd and others ...

Petitioners Vs.

The State ...

Respondent For the petitioners :

Mr. S. Vasudevan Mr. A Babu Mr. T.R. Ravi Mr. Arul Prasanth For the State :

Mr. Deep Chaim Kabir Mr. Ajith Prasad Hearing concluded :

June 24, 2022 June 28, 2022 Judgment on :

July 01, 2022 Tirthankar Ghosh, J.

1.

The present revisional application has been preferred challenging the First Information Report registered with Chatham Police Station being Chatham Police Station Case No. 0024 dated 08th December, 2021 under Sections 120B/409/420 of the Indian

Penal Code and Sections 190(a)/190(b)/194(b)/194(c)/194(e)/ 194(f)/441(1)/441(2) of the Merchant Shipping Act 1958. 2.

The allegation made in the First Information Report were as follows :- The Port Management Board Tug MT Andaman was out sourced to a private firm M/s Admiral Marine Service Pvt. Ltd., (hereinafter refer to as accused company) Chennai on 04.07.2019. The contract was initially for a period of one year which was extended till 28.02.2021, however no extension was issued in favour of the said company and several attempts were made to take possession of the vessel. Despite several attempts the accused company illegally occupied the vessel after termination of contract and continued without contract or agreement and instigated crew on board to stop all work and refused to allow the Tug to function. A committee was constituted by the CPA to take back the possession of the vessel but the same was disobeyed. On 09.09.

2021 an incident occurred as it was sought for manning of the said Tug MT Andaman, however the crew members being the crew deployed by the private company refused to leave the ship. The CPA discussed the matter with them as well as the private company but they refused to leave and once again on 10.09.

asked them to leave the vessel but once again they refused to comply with it and remained docked at Haddo, Knuckle Jetty and could not be utilized nor was it being maintained and was suffering damage. All port activity regarding ship movements and Tug related works were paralyzed and in an emergency situation PMB had to hire the Tug from the Indian Navy so that the port could remain functional. This illegal action by M/s Admiral Marine Service Pvt. Ltd. resulted in a loss of Rs. 21 lakhs to the exchequer. This position was also duly informed to the local Police Station with regard to the illegal action being done in violation of the Merchant Shipping Act. From 12.09.2021 to 30.09.

2021 the crew refused to comply with the orders or to do any maintenance work on the vessel or to take any steps with regard to operations of the vessel thereby rendering it unseaworthy and causing huge financial losses to the Administration by such non action. This was despite repeated request with the RPSL agent Capt. Ram Kumar and their local representative and Manager Gurmeet Singh. Meanwhile on 14.09.2021 the gangway register of MT Andaman demonstrated that the company representative Gurmeet Singh was on board and thereafter on 21.09.2021 Capt. Ram Kumar also went on Board.

of CPA directives for achieving their ulterior motives. On 22.09.2021 the company issued a letter invoking the arbitration clause to the CPA. On 30.09.2021 the CPA chaired a meeting with the PMB Officers and took a decision to forcibly evict the crew. On 30.09.2021 itself the company moved an application before the Court under Section 9 of the Arbitration and Conciliation Act being OS No. 09 of 2021 and obtained an ad interim order to that effect that the parties were directed to maintain status quo regarding possession of the vessel, however, realizing the extent of their illegal actions and seeking to demonstrate that there was no illegal detention of the vessel, on 01.11.2011 the company itself filed an application for modification of the earlier order to hand over the Tug.

An order was passed by the learned District Judge to the effect that the company be given liberty to handover vessel to the PMB. The Court order did not defend their position but did provide status quo without being informed as to the magnitude and repercussion and true nature of company actions which actually amounted to offences, but was misled to give an ad interim order, which ultimately the company itself admitted was not justified by filing an application for modification of the order.

commands. The company thus sought to abuse the process of legal authority for their illegal actions and the Court was never apprised of the entire situation, legal background or issues involved and the consequences of the same. On 03.11.2021 the PMB issued notice to the company to hand over the Tug, on 06.11.2021 finally the company handed over the vessel to the PMB officers, Master, Crew of the PMB. The vessel could only be brought up to date on maintenance/documents and put in service on or about 25.11.2021.

The extremely serious consequence of this situation which developed at the behest of the company under the control and supervision of its Directors, and which was put in to direct execution through its CEO Captain Ram Kumar and Gurmeet Singh, acting in collusion with its Master K.P. Jai Kumar and officers resulted in huge financial loses to the Government by practically paralyzing the movements having cascading detrimental effect on economic, trade and passengers with losses, and forcing the Government to incur heavy expenditure on alternative arrangements with the Indian Navy with further losses of about Rs. 21 Lakhs to the Government exchequer. Huge damages and financial losses have been caused to the PMB, to the Shipping Industry and the economy of the Islands which cannot be quantified only in terms of mere money due to the delays and difficulties caused to all shipping by

keeping the Tug out of service deliberately for a period of almost a month. The company continued to illegally hold the vessel against legitimate and lawful instructions by a Public Servant and to obstruct him from performing his duties in taking over the vessel. It was therefore alleged that company M/s Admiral Marine Service Pvt. Ltd, its Directors, CEO, Manager in collusion with its crews entered into a well planed conspiracy to commit offences punishable under Sections 120B/409 of the Indian Penal Code and read with Sections 190(a)/190(b)/194(b)/194(c)/194(e)/ 194(f)/441(1)/441(2) of the Merchant Shipping Act 1958. 3.

Mr. Vasudevan, learned Advocate appearing for the petitioners submitted that the FIR which has been registered at the behest of Capt. Ashutosh Pandey is not sustainable in view of the fact that the Directors and the office bearers of the company have been implicated as an accused without the company being made an accused. To that effect, the learned Advocate drew the attentions of this Court to the formal part of the FIR where 17 persons have been made an accused but the name of the company did not appear.

4.

It was also contended by the learned Advocate for the petitioners by drawing the attention of this Court to formal part of the FIR that Sections 409 and 420 of the Indian Penal Code has been alleged by the Police authority, which cannot be parallely

applicable in respect of the commission of the offences and is not tenable in eye of law, in view of the settled proposition of law that Section 409 of the Indian Penal Code and Section 420 of the Indian Penal Code are mutually exclusive and cannot apply in similar set of facts. To that effect, learned Advocate relied upon the series of authorities which would be dealt with in the later part of this judgment.

5.

The learned Advocate also drew attention of the Court to the relevant part of the FIR which narrates as follows:- "It therefore appears that the company M/s Admiral marine Service Pvt. Ltd, and its Directors Noorul Ameen, Mohammad Yusuf and Zeenath Begum, acting through the CEO Captain Ram Kumar and Manager Gurmeet Singh, and with the active collusion of its crews have acted pursuant to a well planned conspiracy to commit offences punishable ......................".

According to the learned Advocate the word "appears" is vague and a conspiracy is supposed to happen and an individual cannot be implicated in a Criminal case on vague surmises. 6.

The further arguments advanced by the learned Advocate appearing for the petitioners is that the offences complained of under the Merchant Shipping Act are all non cognizable offences and the same cannot be investigated by police authority without prior permission of the Court of law. It has also been contended that the FIR do not state that which property has been misappropriated and a case under Section 409 of the Indian

Penal Code has been registered by the police authority which is against the basic postulates of law. Attention of the Court was drawn to the formal FIR and period during which the alleged offence was committed i.e. 01.03.2021 to 0811.2021 and it was submitted that no reason have been assigned for delay in reporting such incident and the authorities have with ulterior motive instituted the instant case.

7.

It has been argued that the initiation of the FIR was for covering up of alleged revenue loss which can by no stretch of imagination be stated to be a criminal act, thereby calling for the petitioners to face investigation of the instant case. 8.

The learned Advocate for the petitioners have also drawn attention of the Court to number of documents which include agreements, bank guarantee and extension of such bank guarantee for convincing the Court that a civil dispute has been given a cloak of a Criminal Proceeding wherein the Crews were not paid.

9.

In order to substantiate their contention, the petitioners relied upon State of Haryana and others vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335, paragraph No. 102 was relied upon, which is set out as follows:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned

Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10.

Attention of this Court was drawn to Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and others vs. State of Gujarat reported in (2017) 9 SSC 641. By referring to paragraph No. 16 and its various sub paragraphs, learned Advocate reminded the authority of this Court to exercise the powers under Section 482 of the Code of Criminal Procedure. The relevant paragraph is set out as follows:- "16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash

under Section 482 is attracted even if the offence is noncompoundable. 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

Learned Advocate emphasized on paragraph 16.8 and submitted that in cases of commercial, financial and merchantile transactions wherein there is civil dispute, it is the dictum of the Hon'ble Apex Court that in appropriate situation High Courts should quash the proceeding.

11.

In order to substantiate his argument on the issue that criminal breach of trust and cheating cannot occur simultaneously in an offence relating to commercial transaction, an order of the Punjab and Haryana High Court reported in 1987 SCC Online P&H 580 (Jalpa Parshad Aggarwal Vs. State of Haryana and another) was relied, paragraph No. 3 of the said judgment is quoted below:- "3. At the very outset it may be mentioned that this Court held in Iqbal Singh Randhawa v. Doctor SatpaulGoyal, 1977 C.L.R. (Pb. &Har.) 134, that an offence under section 406, Penal Code, 1860, is, an antithesis of offence under section

420, Penal Code, 1860.

In a case of criminal misappropriation the property is voluntarily kept in the custody of an accused whereas in a case of cheating, the accused, by adopting deceitful means, induces the complainant to part with the property. Thus, an accused cannot be tried for these two offences simultaneously. Either he his committed an offence under Section 406, Penal Code, 1860 or under Section 420, Penal Code, 1860. 12.

In the case of Mahindra & Mahindra Financial Services Ltd and another vs. Delta Classic (P) Ltd. reported in (2011) 6 Gauhati Law Reports 604 relied upon by the petitioners, attention was drawn to paragraph Nos. 14 to 16 which is set out as follows: "14. In "criminal breach of trust", an accused comes into possession of a property or acquires dominion over a property honestly and bona fide, but he develops dishonest intention subsequent to the taking possession of, or subsequent to having acquired the dominion over, the property and, having developed such dishonest intention, he dishonestly misappropriates or converts to his own use the property, or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do.

15. Thus, in "criminal breach of trust", the intention of the accused cannot be dishonest or mala fide at the time, when he comes into possession of the property or comes to acquire dominion over the property; but, having come into possession of, or having acquired dominion over, the property, the accused develops dishonest intention and actuated by such mensrea, he converts to his own use the property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do.

16. Contrary to what happens in "criminal breach of trust", the intention of the accused, in a case of "cheating", is

dishonest from the very commencement of the transaction. There is really no consent by the person, who is intentionally induced by deception to deliver the property or allow any person to retain the property or is intentionally induced, as a result of deception, to do or omit to do anything, which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. In short, thus, while in "criminal breach of trust", the accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of 'cheating' is one, wherein the accused has dishonest intention from the very commencement of the transaction."

13.

In order to substantiate his argument, the petitioner relied upon Wolfgang Reim and others vs. State and another reported in 2012 SCC Online Del 3341: (2012) 172 Comp Case 86, relevant paragraph No. 34 is quoted below: "34. Further, a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e, after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction."

14.

Reliance was placed on N. Raghavendra vs. State of Andhra Pradesh reported in 2021 SCC Online SC 1232 and

attention of this Court was drawn to paragraph Nos. 41 to 48 and 68 which is set out as follows:- "41. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust.

42. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression 'criminal breach of trust' is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:

(i) Entrusting any person with property or with any dominion over property;

(ii) That person has dishonestly mis-appropriated or converted that property to his own use;

(iii) Or that person dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract.

43. It ought to be noted that the crucial word used in Section 405 IPC is 'dishonestly' and therefore, it presupposes the existence of mensrea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is 'mis-appropriates'

which means improperly setting apart for ones use and to the exclusion of the owner.

44. No sooner are the two fundamental ingredients of 'criminal breach of trust' within the meaning of Section 405 IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409 IPC, for which it is essential to prove that: (i) The accused must be a public servant or a banker, merchant or agent;

(ii) He/She must have been entrusted, in such capacity, with property; and (iii) He/She must have committed breach of trust in respect of such property.

45. Accordingly, unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof.

Where the 'entrustment' is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner.

Ingredients necessary to prove a charge under Section 420 IPC:

46. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine.

47. It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing

so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mensrea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.

48. It is equally well-settled that the phrase 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mensrea on his part.

Unless the complaint showed that the accused had dishonest or fraudulent intention 'at the time the complainant parted with the monies', it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract.

...

...

68. We may at this stage, briefly note that learned Senior Counsel for the Appellant had raised another contention, namely, that the charges under Section 409 and Section 420 IPC cannot go together. He eloquently argued that the essential ingredients of the two offences are conflicting in nature. Section 409 (or 405) IPC deals with offences where the accused has been 'entrusted' with the property and Section 420 IPC deals with offences where the accused has 'dishonestly induced' the victim/complainant to depart with the property in question. It was, therefore, argued that an accused cannot be charged under both the sections simultaneously.

This contention, however, has been rendered academic in the light of the afore-stated discussion and conclusion(s). We thus do not express any opinion and leave this question open for adjudication in an appropriate case."

15.

In Vesa Holdings P.Ltd and another vs. State of Kerala and others reported in 2015-2-L.W.(Crl.) 237 petitioners relied upon paragraph No. 8 which is set out as follows:- "8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out."

16.

In Ajay Aggarwal vs. Union of India and others reported in (1993) 3 SCC 609 petitioners referred to paragraph No. 8 which is set out as follows:- "The question is whether prior sanction of the Central Government is necessary for the offence of conspiracy under proviso to Section 188 of the Code to take cognizance of an offence punishable under Section 120-B etc. IPC or to proceed with trial. In Chapter V-A, conspiracy was brought on statute by the Amendment Act, 1913 (8 of 1913). Section 120-A of the IPC defines 'conspiracy' to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as "criminal conspiracy". No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120-B of

the IPC prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones case [King v.

Jones, 1832 B & AD 345 : 110 ER 485] that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg [(1868) LR 3 HL 306] and the House of Lords in unanimous decision reiterated in Quinn v.

"A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or for the use of criminal means." 17.

In Sushil Sethi and another vs. State of Arunachal Pradesh and another reported in (2020) 3 SCC 240, relevant paragraph relied upon is 8.2 which is quoted below:- "8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In Maksud Saiyed v. State of Gujarat [Maksud

Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] , it is observed and held by this Court that the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that the statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that 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. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside."

18.

The learned advocate for the petitioners also drew the attention of this Court to the Merchant Shipping (Maritime Labour) Rules, 2016. Attention of the Court was drawn to Rule 3(1)(i) which defines "ship owner", rule 7 relating to "recruitment and placement" and rule 14(1) which refer to "manning levels". It was emphasized before this Court that the petitioners strictly adhered to the provisions of law and the defacto-complainant was responsible for the stalemate which was created as on the one hand there were non-payments and on the other hand an impression was created to the company by extending the bank guarantee from the communication letter that the service of the accused company is required. Additionally, learned Advocate for the petitioners has relied upon documents which include letter

dated 26.08.2021 addressed to the Chief Port Administrator which expressed the difficulties faced because of non-payment of wages, a similar letter dated 13.09.2021 addressed to the Chief Port Administrator regarding the salary issue relating to the crews wages, a set of documents dated 06.11.2021 regarding protocol maintained for delivery of vessel MT Andaman. 19.

Reliance has also been placed upon Sharon Michael and others vs. State of Tamil Nadu and another reported in (2009) 3 SSC 375 and R. Kalyani vs. Janak C. Mehta and others reported in (2009) 1 SCC 516. The main thrust of contention for relying upon such judgment is that the nature of allegations reflect that the dispute arose out of a contract, more in the nature of commercial transaction and as such criminal case which has been registered cannot be allowed to continue in view of the fact that the vessel is already in possession of the complainant when the FIR was registered. The action of the complainant for initiation of the criminal case on the face of it, reflects ulterior motive for wrecking vengeance.

20.

On the other hand Mr. D.C. Kabir, learned Special Public Prosecutor appearing for the State authorities produced the case diary and submitted that the petitioners have diluted the gravity of offence by submitting before this Court that a civil dispute has been given a cloak of a criminal proceeding.

21.

In order to substantiate his stand, he has referred to number of documents which reflects that the Chief Port Administration (PMB) from 09.09.2021 onwards have taken all steps for recovery of the vessel which was one of the prime resource for effecting essential services in these Islands. It has been pointed out that the vessel has been illegally withheld and for the same purpose the port authority had to make requisition to the Naval Authorities for using the Naval Tug on payment basis. Such service of Naval Tug was for a total number of 160 occasions between the period 13.09.2021 to 05.11.2021. Much stress has been made by the state on the issue that by illegally withholding the vessel in fact the petitioners have paralyzed the essential services which the port authorities are bound to deliver by taking aid of the said vessel.

Documents have been produced before this Court which were collected during the investigation which relates to number of times attempt being made for handing over the vessel which was on 20.09.2021 through the engineer(s) attached to the port, the same team of engineers on 23.09.2021 again went for handing over the vessel but was refused on issue of settlement of payments.

Documents collected by the Investigation Agency also reflects that even the CISF was deputed for the vessel to be handed over but the same was berthed at Haddo, Knuckle Jetty on and from 14.09.2022 in a manner and

with resistance from the crew of the said vessel the Port administration was both handicapped and paralyzed. It has also been contended that the investigation of the case is in progress, materials are being collected and the petitioners who had taken the law in their own hands by illegally withholding the vessel are subsequently trying to give the offences committed by them the colour of a civil dispute.

22.

According to the learned Advocate for the State the guilty intention and action of the petitioners would be transparent from the materials already collected by the investigating agency that they intended to paralyze the essential services of the islands and thereby attempted to settle their disputes at their own dictates. It was stated that as a prima facie case for wrongfully withholding of property has been made out, there is no scope for interference by the Court at this stage. Learned Advocate for the State has concluded his arguments by rebutting the arguments of the learned Advocate for the petitioner on the questions of law raised by him and the authorities cited. It has been submitted that an FIR is not meant to be an encyclopaedia of facts and all that is required is to demonstrate, prima facie offence being made out. By referring to Section 155(4) of the Code of Criminal Procedure, learned Advocate submitted that when there is cognizable and non-cognizable offence being made out in the FIR police are

authorized to investigate both the offences. The contractual obligation cannot be a bar for initiating a criminal case when the petitioners have taken the law in their own hands. The provisions of Section 482 of the Code of Criminal Procedure according to the learned Advocate do not propose for roving analysis of the factual matrix of the case and such evaluation is to be done at appropriate stage when evidence is adduced before the trial Court.

23.

This Court has taken into account the authorities cited by the learned Advocate appearing for the petitioners. So far as the issue relating to the company not being made a party and the Director/other Officers as such cannot be implicated in the case is concerned, I find that in the allegations made in the FIR there are clear assertions in respect of the company, its Directors and responsible persons and it is only in the formal part of the FIR, the name of the company has not been written. The same is a clerical error, as the contents of letter of the complaint categorically states regarding the name of the company and the persons responsible. It is the person who filled up the formal part of the FIR who may be responsible for the same and as such I do not think for such technical issue at this stage when the investigation is under progress and the report under Section 173 of the Code of Criminal Procedure is yet to be filed by the

Investigating Officer, adjudicating such issue would be a premature act on the part of this Court.

24.

So far as the issue of registration of FIR under Section 409 of the Indian Penal Code and Sections 420 of the Indian Penal Code is concerned which has been very strenuously argued by the learned Advocate for the petitioners by relying upon the number of authorities, it would be worthwhile to state that in column No. 12 wherein the contents of the FIR refers to Indian Penal Code sections, the same are restricted to Section 409 and Section 120B. Again in the tabular form at column No. 2, Section 420 of the Indian Penal Code has been referred along with Section 409 and 120B of the Indian Penal Code.

It would be apposite to state that at the stage of the investigation mere mentioning and non mentioning of the sections are irrelevant, what is important is the nature of the allegations and as to whether any cognizable offence has been made out. It is a fact that there is a difference between column No. 12 and the column No. 2 of the formal FIR, at the same time the facts of the case do disclose that the accused company and their responsible persons wrongfully withheld the vessel and the same could not be taken over even by the CISF personnel who were carrying out the order of the Port Authorities for recovering the vessel.

offence. The word "appears", as emphasized by the learned Advocate representing the petitioners used for implicating large number of persons for the purposes of invoking the provisions of criminal conspiracy under Section 120B of IPC also cannot be taken into account as at this stage the investigation is in progress and the materials collected by the investigating agency reflects that the crews refused to hand-over the vessel to the Engineers of the port as well as the CISF personnel. It is for the investigating agency to find out whether the crew isolatedly took such a decision for refusing to handover the vessel or the same was at the instance of the company and its responsible officers. To monitor the applicability of the section at this stage would deter the investigating agency to find out the persons responsible for the offence and as such this contention cannot be accepted at the present stage.

25.

The argument of the learned Advocate for the petitioner regarding police authorities carrying out investigation under the Merchant Shipping Act in case of non-cognizable is also not acceptable, in view of the fact that when an offence describes both cognizable and non-cognizable offences, then in that case the police authorities are empowered to investigate the noncognizable offence along with the cognizable offence which they are investigating as per the provisions of Section 155(4) of the

Code of Criminal Procedure. The reason for delay as contended are substantiated from the documents collected by the Investigating Agency in view of the repeated attempts being made by the port authorities with the aid of their Engineers and CISF failing to do the same, to that effect the order passed by the port authorities and the registers which has been maintained itself reflects the attempts being made. Barely, because the police authorities were lately approached, it cannot be said at this stage when investigation is in progress that no offence has been made out.

26.

In Mahendra K. C. vs. State of Karnataka and another reported in (2022) 2 SCC 129, the Hon'ble Supreme Court in paragraph No. 16 reminded the powers of High Court under Section 482 of the Code of Criminal Procedure which is as follows:- "On reading the judgment of the Single Judge, it would appear that the Single Judge has failed to notice the distinction between a petition for quashing under Section 482 (which was being considered) and a criminal trial or an appeal against a conviction on a charge under Section

306. The Single Judge has transgressed the limits of the jurisdiction under Section 482 of the CrPC. The judgment is replete with hypothesis and surmises on the basis of which the Single Judge has reached an inference on facts. The Single Judge has tested the veracity of the allegations in the criminal complaint and in the suicide note left behind by the deceased without having the benefit of an

evidentiary record which would be collected during the trial. At the stage when the High Court considers a petition for quashing under Section 482 of the CrPC, the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a Judge conducting a trial would, on the basis of the evidence collected during the course of trial. The High Court in the present case has virtually proceeded to hold a trial, substituting its own perception for what it believed should or should not have been the normal course of human behavior. This is clearly impermissible".

Relying upon the proposition of State of Haryana and others vs. Bhajan Lal and others (supra) in the judgment of Mahendra K. C. vs. State of Karnataka and another (supra) in paragraph 22, the Hon'ble Supreme Court laid down two tests which is set out as follows:- "Based on the above precedent, the High Court while exercising its power under Section 482 of the CrPC to quash the FIR instituted against the second respondentaccused should have applied the following two tests: (i) whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint"

27.

Further in Priti Saraf and another vs State of NCT of Delhi and another reported in 2021 SCC Online SC 206, the Hon'ble Supreme Court in paragraph No. 23, 28, 31 and 34 have reiterated the powers of the High Court while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure for terminating a proceeding at the stage of investigation. The aforesaid paragraphs are set out below:- "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

...

28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.

...

31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care

and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.

...

34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the chargesheet filed against 2nd respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial."

28.

Having regard to the submission advanced by the petitioners, State and the documents relied upon, this Court is of the opinion that a reading of the FIR prima facie reflects that the petitioners tried to take law in their own hands by illegally withholding/retaining the vessel which was used by the port authorities for essential services of the Islands. 29.

Thus, even if there was a dispute regarding payment, the alleged act of the petitioners in conspiracy with the crew members and others referred to in the FIR requires elicitation of truth which can only be done by an investigation being carried out in respect of the facts narrated in the FIR. Further the documents collected by the investigating agency in support of the case do not satisfy the parameters stated either in the celebrated judgment of the Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others (supra) or can it be said that there would be an abuse of the process or a miscarriage of justice would be

caused because of the continuation of the investigation. As such at this stage, there is no scope for interference. 30.

Accordingly, CRR/3/2022 is dismissed.

31.

Pending application, if any, consequently disposed of. 32.

Parties are directed to act on the server copy of this order duly uploaded on the official website of the Hon'ble Calcutta High Court.

(TIRTHANKAR GHOSH, J.)