JUDGMENT S.S. SANDHAWALIA, C.J.

1. The three significant issues which arise in this reference to the Full Bench may be precisely formulated in the terms following : --

1. Whether section 35 of the Bihar Shops and Establishments Act, 1953 necessarily mandates that the company or the partnership firm must be arraigned simultaneously along with the Director, Partner, Manager or Secretary thereof for prosecutions for the contravention of the said Act?

2. Whether section 35 of the Bihar Shops and Establishments Act, 1953 inflexibly requires that the allegation that the Director, Partner, Manager or Secretary either exercised ultimate control over the affairs of the company or the partnership firm or was in immediate charge of the general management or control thereof must be pleaded in express terms in all complaints against them for offences in contravention of the said Act?

3. Whether J. S. Ram v. State of Bihar, 1976 BBCJ (HC) 213 : (1976 Lab IC 1512), V. Poddar v. State of Bihar, 1978 BBCJ (HC) 498 and Krishna Trading v. State of Bihar, 1979 BBCJ (HC) 94 : (1979 Cri LJ 760) and other precedents taking a similar view in the context of section 35 of the Bihar Shops and Establishments Act, 1953 lay down the law correctly?

2. The facts giving rise to the issues aforesaid are not in serious dispute and may be recounted briefly. Of the twelve petitioners, eleven are admittedly partners of the firm Messrs Vaishali Pictures, Rajendra Nagar, Patna whilst petitioner No. 12, Shri S. N. Singh, is the Manager thereof. On the 12th of December, 1980 the premises of Messrs Vaishali Pictures were inspected by Mr. Ram Pravesh Singh, Labour Superintendent and Inspective Authority, and he discovered certain contraventions of the Bihar Shops and Establishments Act, 1953 (hereinafter called the 'Act') and the rules framed thereunder. Subsequently, he preferred the complaint (vide Annexure-'1') against the petitioners as partners and manager of M/s. Vaishali Pictures, though the said partnership firm in terms was not made a party to the proceedings. On 16th of April, 1981 the Chief Judicial Magistrate, Patna, took cognizance of the offence against the petitioners under section 34 of the Act and transferred the case to the Court of Shri H. Hassan, Judicial Magistrate, 1st Class, Patna, for trial. Aggrieved thereby, the present petition has been preferred for quashing the prosecution.

3. The salient grounds pressed in the present petition are that the partnership firm of Messrs Vaishali Pictures has not been made an accused in the complaint and is, therefore, not simultaneously arraigned along with the Partners and the Manager thereof : and further that the complaint does not expressly allege that the petitioners were persons responsible for or in charge of the business on that date and they either exercised ultimate control over the firm or were in immediate charge of the general management and control thereof. It is the stand that in a long line of decisions of this Court under the Act and those under Section 10 of the Essential Commodities Act and analogous statutes, this Court has held that the prosecution cannot be sustained unless the company or the partnership firm is simultaneously charged for the offence and further the necessary averments incorporating the terms of Section 2(5) of the Act are inflexibly made in the complaint itself.

4. At the threshold stage of admission, this case came up before B. S. Sinha, J. Before him firm reliance was placed on his own judgment in 1978 BBCJ (HC) 498 (supra). Doubting the correctness of the said view, ex facie, the case was referred to a Division Bench. Before the Division Bench firm reliance was placed by way of analogy on R. N. Dutta v. State of Bihar, 1971 BLJR 1005 pertaining to the somewhat analogous provisions of Section 10 of the Essential Commodities Act. Casting some doubt about the correctness of the view therein and a long line of decisions holding so, the matter for clarity of precedent was referred for an authoritative decision by a larger Bench.

5. Learned counsel for the petitioners was now somewhat lukewarm in pressing his earlier stands in view of the recent binding decision of the Final Court in Sheoratan Agarwal v. State of Madhya Pradesh, AIR 1984 SC 1824, and the Full Bench judgments in Ram Kripal Prasad v. State of Bihar, 1985 Pat LJR 271 : (1985 Cri LJ 1048) and Criminal Misc. No. 5948 of 1983 (Mahmud Ali v. State of Bihar), decided on the 28th November, 1985 (reported in AIR 1986 Patna 133). It is apparent that these decisions substantially cover the field arising in this case. Nevertheless as significant questions under the specific provisions of the Act have been raised, these must necessarily be considered and adjudicated upon.

6. Since the primal stand on behalf of the petitioners is rooted on the reasoning and rationale of precedents which have been rendered under Section 10 of the Essential Commodities Act, it becomes necessary to advert to the same at the very outset. It calls for pointed notice that the provisions of Section 35 of the Act are in spirit analogous to those in Section 10 of the Essential Commodities Act but cannot possibly be labelled as in pan materia therewith. This would seem manifest when they are juxtaposed against each other: --

Section 35 of the Act Section 10 of the E. C. Act "35. Penalty where the employer is a firm or company.-- If the person contravening any provision of this Act or a rule of order made thereunder is a company or a partnership firm, every director, partner, manager Or secretary thereof shall, unless he proves that the contravention took place without his knowledge or thai he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.

"10. Offences by companies.-- (1) If the person, contravening an order made under S. 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in subsec. (1), where an offence under this Act has been committed by a company and it is proved that "the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

x     x     x     x     x     x     x     x     x     x"

7. Even a plain look at the aforesaid language of Section 35 of the Act would indicate that its terms are apparently more stringent than those of Section 10 of the Essential Commodities Act. Whereas Sub-section (1) of the latter provision requires as a pre-condition of liability that the person must be in charge of and was responsible to the company for the conduct of the business of the company, Section 35 is not hedged in by any such pre-condition in the case of directors, partners, managers or secretaries of such companies and partnership firms. Indeed, Section 35 in plainer terms and unqualified language lays down that when contravention is by a partnership firm or company then every director, partner, manager or secretary thereof will be deemed to be guilty of such contravention and the burden would be on him to show that the same took place without his knowledge or that he exercised all due diligence to prevent such contravention. Yet again under Sub-section (2) of Section 10 of the Essential Commodities Act, there appears to be a requirement of either consent or connivance or neglect on the part of the director, manager, secretary or other officer of the company before they are to be vicariously held liable for the said offence. However, Section 35, as already noticed, does not talk of any such consent, connivance or neglect for fastening criminal liability, but, in terms, makes the director, partner, manager or secretary ipso facto liable for the contravention of the provisions of the Act by the company or the partnership firm and throws the burden upon them to prove that either they had no knowledge or, if so, they had exercised positive diligence to prevent the offence. It seems unnecessary to elaborate what is obvious, namely, that Section 35 of the Act is couched in wider terms and imposes a somewhat stringent vicarious liability than the analogous provisions of Section 10 of the Essential Commodities Act.

8. However, the larger principle and rationale underlying Section 35 of the Act and those of Section 10 of the Essential Commodities Act are indeed plain and discernible. Both the statutes are directed against social or economic offences and may well be labelled as beneficent legislation which has to be somewhat liberally construed. The violation of the provisions of these Acts, apart from individual persons, may also be committed by companies, bodies corporate, firms and other associations of individuals. It is well-settled that the strict criminal liability of partnership firms, companies or legal persons is in a class by itself and poses problems peculiar to them, since a legal person is a fiction of the law and does not exist in actually, the issue of vicarious liability of the office-bearers through whom a company or a partnership firm must necessarily act comes to the fore. It is manifest that the provisions of these statutes indicate that they incorporate the stringent principle of strict vicarious criminal liability of persons who are responsible to the company for the conduct of its business or its responsible officers like the director, partner, manager or secretary. Now strict vicarious criminal liability is somewhat of an exception to the general rule of direct personal culpability and is a modern development through statutory provisions. That there can be such vicarious criminal liability by legislative mandate is no longer in dispute. Indeed, in modern conditions it is an inevitable necessity. Nevertheless stepped as we are in the basic principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime, it needs some effort to accept whole-heartedly the legislative mandate of vicarious criminality even in the absence of either of the aforesaid ingredients.

9, Having viewed the matter in the larger perspective, one may now advert to question No. I posed at the very outset. The learned counsel for the petitioners had faintly sought to argue that since the partnership firm of Messrs Vaishali Pictures had itself not been arraigned as an accused in the complaint, the petitioners could not be vicariously prosecuted for the offence. Reliance was sought to be placed on V. Poddar v. State of Bihar, 1978 BBCJ (HC) 498. Undoubtedly, there has earlier been some cleavage of judicial opinion on this point. Apparently this 'stemmed from the observations of their Lordships in State of Madras v. C. V. Parekh, AIR 1971 SC 447 : (1971 Cri LJ 418) basically relied on in this judgment to arrive at the conclusion. However, all controversies in this context now seem to have been set at rest by the Final Court in Sheoratan Agarwal v. State of Madhya Pradesh, AIR 1984 SC 1824. That was a case under Section 10 of the Essential Commodities Act. After adverting to and fully explaining the earlier judgment in State of Madras v. C. V. Parekh, (supra) it was concluded as follows:

"The sentences underscored by us clearly show that what was sought to be emphasised was that there should be a finding that the contravention was by the Company before the accused could be convicted and not that the Company itself should have been prosecuted along with the accused. We are, therefore, clearly of the view that the prosecutions are maintainable and that there is nothing in Section 10 of the Essential Commodities Act which bars such prosecutions."

The aforesaid authoritative enunciation, in my view, completely covers the case under Section 35 of the Act as well. Indeed, learned counsel for the petitioners had fairly conceded that in view of the categoric findings by the Final Court he can hardly contend to the contrary.

10. To conclude on this aspect, the answer to the question No. 1 is rendered in the negative and it is held that Section 35 of the Act does not require that the company or the partnership firm must be arraigned simultaneously along with the director, partner, manager or secretary thereof for prosecutions for the contravention of the Act.

11. Adverting now to question No. 2, the provisions of Section 35 call for a somewhat closer attention for its true interpretation. The last part of the section creates a deeming legal fiction whereby every director, partner, manager or secretary becomes automatically guilty of the offence committed by such a company and partnership firm, unless he proves to the contrary and the burden of such proof is obviously laid upon him. No other overt act or direct commission of offence by such an office-bearer is necessary barring the factum of being a director, partner, manager or secretary of the company or partnership firm. Indeed, the provisions of Section 35 can be recast to make its meaning more manifest in the following form: --

"(i) If the person contravening any provision of this Act or a rule or order made mere under is a company or a partnership firm;

(ii) every director, partner, manager or secretary thereof shall be deemed to be guilty of such contravention;

(iii) unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention."

As already noticed, vicarious criminal liability herein is foisted by virtue of the deeming fiction of the last part of the section. One is inclined to recall the famous dictum in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109:-

"if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that, having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

Construing Section 35 in the light of the above, it provides that if the basic liability for the offence is alleged or established against the company or partnership firm as such then by a fiction of law every director, partner, manager or secretary thereof is deemed as much guilty of the offence as the primal offender company or partnership firm itself.

12. That the aforesaid rule is both stringent and rigorous seems manifest. Yet its rigour is tempered and a shade softened by a rule of evidence spelt cut in Section 35 itself. It lays down that a director, partner, manager or secretary upon whom vicarious liability has been foisted may wriggle out of the same if he proves that the offence took place without his knowledge or that he exercised all due diligence to prevent the same. The burden of proof is clearly laid down upon such office-bearer of the company or partnership which reverses the ordinary mandate pf criminal liability that the burden of establishing the offence against an accused person always lies on the prosecution. Thus viewed, Section 35 lays down that once the offence is alleged or established against the company or the partnership firm and the factum of being a director, partner, manager or secretary thereof is existing then such a person becomes liable therefor without more, vicariously. The burden is then laid upon him to establish and prove a total absence of knowledge about the commission of the crime or a diligent prevention thereof.

13. Analysed as above, Section 35 spells out both a deeming fiction of vicarious liability and a rule of evidence laying the burden of proof on the directors, partners, managers or secretaries of the company or partnership firm committing the contravention.

14. Despite the wide ranging provisions of Section 35 it is the basic plea in the petition that unless the language of Section 2(5) of the Act is incorporated in the complaint itself in terms, no prosecution can be maintained against the petitioners. It seems to be the stand that either expressly or substantially the requirements of he definition of an 'employer' must be pleaded in the complaint to sustain its maintainability.

15. The aforesaid hyper-technical stand which was half-heartedly advanced is, in my view, untenable. It is significant to note that the body of Section 35 does not use the word 'employer' at all. However, undoubtedly the said word is employed in the heading of the marginal note of the section. It is well-settled that the marginal note of the section does not necessarily or wholly control the provision. Be that as it may, the word 'employer' and its definition are there by reference to Section 2(5). This is in the following terms: --

"2. Definitions. -- In this Act, unless there is anything repugnant in the subject or context--

xx         xx         x
 

(5) 'employer' means a person who owns or ' exercised ultimate control over the affairs of an establishment and includes a manager, agent or any other person in the immediate charge of the general management or control of such establishment;
 

xx       xx       x" 
 

Now it is settled beyond cavil that it is not necessary to plead the language of the statute itself. When a clause of the enactment describes the person who could be prosecuted, it does not require that each and every attribute of his office or power must in terms be stated in the complaint itself. The definition of 'complaint' in the Code of Criminal Procedure is wide and reads as follows :--

"2.

XX	XX               X
 

(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, hut does not include a police report.
 

Explanation -- A report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made be deemed to be the complainant." 
 

It is significant that a complaint may even be made orally and it primarily means allegations against a person for having committed the offence. One must always keep in mind the perspective that the administration of criminal law is more a matter of substance than of form and should not be allowed to be obscured by pettifogging technicality. This aspect seems to be well covered by two recent Full Bench judgments of this Court. In Ram Kripal Prasad v. State of Bihar, 1985 Pat LJR 271 : (1985 Cri LJ 1048) also it was argued in the context of Section 14 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 that the petition of complaint must, in terms, plead each and every relevant fact including the precise number of employees in the establishment. Repelling such a contention on principle and precedent, it was concluded by the Full Bench in the terms following:

"To sum up on this aspect, the answer to question No. (iii) formulated at the outset has to be rendered in the negative and it is held that a petition of complaint for offences under Section 14 of the Act need not in terms plead each and every minuscule relevant fact nor the precise number of employees of the prosecuted establishment. In any event, the failure to do so does not vitiate the proceedings on such technical ground alone."

Again the Full Bench in Mahmud Ali v. State of Bihar, (Criminal Misc. No. 5948 of 1983 decided on the 29th November, 1985), (reported in AIR 1986 Patna 133) was considering an identical argument under Section 47(1) of the Water (Prevention and Control of Pollution) Act, 1974, which admittedly is in pari materia with Section 10 of the Essential Commodities Act. Repelling such a stand after an exhaustive discussion, the Bench summed up the matter as follows :

"To finally conclude on this aspect, on the larger purpose of the Act and the particular language of Section 47(1) of the Act, as also on principle and binding precedent, the answer !o question No. (1) posed at the outset is rendered in the negative. It is held that Section 47(1) of the Act does not necessarily mandate the incorporation of the words -- 'was in charge of and was responsible to the company for the conduct of the business of the company' -- in all complaints against the Chairman, the Managing Director or the General Manager of the company for offences in contravention of the Act."

16. It seems plain from the aforesaid enunciation that the matter herein is virtually concluded against the petitioners. It has already been noticed that the provisions of Section 35 of the Act are in fact more stringent than those under Section 10 of the Essential Commodities Act. What is, therefore, applicable under the latter statute would be doubly so in the case of prosecution under the Act.

17. To sum up on this aspect, the answer to question No. 2 is rendered in the negative. It is held that Section 35 of the Act does not inflexibly require the pleading that the director, partner, manager or secretary either exercised ultimate control over the affairs of the company or the partnership firm, or was in immediate charge of the general management or control thereof, in all complaints against them, for offences in contravention of the said Act.

18. Inevitably adverting now to precedents and to question No. 3, it does appear that there exist a number of judgments of this Court taking a view contrary to what has been held above on questions Nos. 1 and 2. However, the sheet-anchor of this stand was rested on R. N. Dutta v. State of Bihar, 1971 BLJR 1005. The correctness of this view came up for an exhaustive consideration by the Full Bench in Mahmud AH v. State of Bihar, (AIR 1986 Patna 133) (supra). Therein after a detailed discussion of the reasoning and rationale of R. N. Dutta v. State of Bihar (supra) and a host of other precedents, it has been authoritatively held that R. N. Dutta's case and a long line of precedent taking a similar view -- both earlier and subsequent thereto -- do not lay down the law correctly and all those judgments stand overruled. It is thus manifest that the basic precedential plank in favour of the petitioners is now non-existent. However, referring to judgments expressly under the Act mention must first be of J. Section Ram v. State of Bihar, 1976 BBCJ (HC) 213 : (1976 Lab IC 1512). Therein it seems that the material provisions of Section 35 were altogether missed and after referring to English cases with regard to the civil liability of the Director, Manager, etc., of a company, it was held that the cognizance against the Director could not be taken and the proceedings were quashed. With the deepest respect, the opinion therein is against the teeth of the letter and spirit of Section 35 which, as already noticed, surprisingly missed consideration altogether. It would appear that the issue was not adequately debated. The view therein is plainly contrary to the subsequent judgment of the Final Court and the authoritative Full Bench judgments of this Court referred to earlier with the deepest respect, it must be held that J. S. Ram v. State of Bihar, does not lay down the law correctly and is hereby overruled.

19. In V. Poddar v. State of Bihar, 1978 BBCJ (HC) 498 basic reliance was on State of Madras v. C. V. Parekh, AIR 1971 SC 447 : (1971 Cri LJ 418) which, already noticed, has been subsequently explained authoritatively in Sheoratan Agarwal v. State of Madhya Pradesh, AIR 1984 SC 1824. Equally reference was made to R. N. Dutta's case (supra) which was followed and as already noticed now stands overruled. It was noticed somewhat erroneously that Section 10 of the Essential Commodities Act is in pari materia with Section 35 of the Shops and Establishments Act, which, as already shown, is not so. What is perhaps thus more significant is the fact that the correctness of the view was expressly doubted himself by B. D. Sinha, J. in the order of refernce in the present case. With the deepest deference this judgment has also to be consequently overruled.

20. In the later judgment the learned single Judge in Krishna Trading Co. v. State of Bihar, 1979 BBCJ (HC) 94 : (1979 Cri LJ 760) followed the earlier view of the Court and rested himself substantially if not primarily on the ground that the company must be prosecuted along with its office-bearers for the offence. That view plainly cannot now hold water after the judgment in AIR 1984 SC 1824 (supra). With the greatest deference, this judgment has also to be overruled. It seems unnecessary and wasteful to advert individually to other unreported judgments either following or taking a similar view.

21. To conclude, the answer to question No. 3 is rendered in the negative and it is held that J. S. Ram v. State of Bihar, 1976 BBCJ (HC) 213 : (1976 Lab IC 1512), V. Poddar v. State of Bihar, 1978 BBCJ (HC) 498 and Krishna Trading Co. v. State of Bihar, 1979 BBCJ (HC) 94 : (1979 Cri LJ 760) do not lay down the law correctly.

22. Once the three significant questions have been answered in the terms above, it is plain that there remains not the least merit in this criminal miscellaneous petition. The same has, therefore, to be dismissed. There has already been considerable delay in the trial of the case because of the pendency of the present criminal miscellaneous case. The Court below shall now expeditiously proceed to complete the trial.

P. S. Sahay, J.

23. I agree.

S. Shamsul Hasan, J.

23A. Though I agree with the ultimate result in this application and the decision on points Nos. 1 and 3 arrived at by Hon'ble the Chief Justice, I feel, while agreeing I must express my own view on point No. 2. At the outset I must state that I reiterate my views expressed in my judgment of dissent in Crl. Misc. No. 5948 of 1983: (Mahmud Ali v. State of Bihar), disposed of on 28-11-1985 : (reported in AIR 1986 Patna 133) on matters common in that application and in this application. Succinctly stated, I am of the view that even where a person is prosecuted vicariously pro-designata, indictment must contain facts relating to the occurrence and the accused, which the prosecution will have to prove at the trial. It is true that Section 35 of the Bihar Shops and Establishments Act, 1983, (in short, 'the Act') is wider in its amplitude than Section 10 of the Essential Commodities Act, 1955, and the persons mentioned in Section 35 of the Act can be arraigned as accused even if they are not in charge of and responsible (for) the affairs to a Company, yet the materials will have to be brought in the indictment which will indicate that the accused persons actually held the posts which have brought them within the purview of Section 35 of the Act on the date the occurrence took place. Merely stating that they were holding certain posts would not be enough. The Supreme Court in the two oft cited decisions, that is, Municipal Corpn. of Delhi v. Purshotam Dass Jhunjhunwala, AIR 1983 SC 158 : (1983 Cri LJ 172) and Municipal Corpn. of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : (1983 Cri LJ 159) lends sustenance to my views. In the case of Jhunjhunwala the Supreme Court states as follows : --

4. Unlike the other case, para 5 of the complaint of this case gives complete details of the role played by the respondents and the extent of their liability. It is clearly mentioned that Ram Kishan Bajaj is the Chairman and R. P. Neyatia is the Managing Director and respondents 7 to 11 are the Directors of the Mill and were in charge of and responsible for the conduct of its business at the time of the commission of the offence whereas in the other case the complaint has merely drawn a presumption without any averment.

5. In the instant case, a clear averment has been made regarding the active role played by the respondents and the extent of their liability. In this view of the matter, it cannot be said that para 5 of the complaint is vague and does not implicate respondents 1 to 11. As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.

6. From a perusal of the various clauses of the complaint, including para 5, it is quite clear that a prima facie case for summoning the accused has been made out and the High Court was absolutely wrong in holding that the allegations made in para 5 are vague. The High Court failed to consider that the allegations were quite clear and explicit so as to be sufficient for taking cognizance of the offence against the accused.

7. Further details would have to be given in the shape of evidence when the trial proceeds and in view of the clear allegations made in para 5 of the complaint, we are not in a position to agree with the High Court that it is a fit case in which it should have exercised its discretion under Section 482 of the Code of Criminal Procedure, 1973, in order to quash the proceedings against the accused-respondents."

24. In my view, this decision clearly emphasises the necessity of indictment containing facts that would justify the prosecution of an accused. Similarly, in Rohtagi's case (1983 Cri LJ 159) (SC) (supra) the prosecution of the directors was quashed in the absence of sufficient evidence in the indictment leaving the Court to take steps under Section 319 of the Code of Criminal Procedure, 1973, if sufficient evidence was found, though it was mentioned in the complaint that they were in charge of and responsible to the affairs of the Company. It was, however, thought desirable to refrain from quashing the case against the General Manager because of the very nature of his duties inferred from designation which justified his prosecution. It will be useful to cite the following passage from the decision which is relevant.

"So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable....."

25. During the course of argument, however, learned counsel for the petitioners did not press this point in the light of what I have held above in my judgment of dissent in the case of Mahmud Ali (AIR 1986 Patna 133) (FB) (supra). I, therefore, find no reason to disagree in the ultimate result of this application as arrived at by Hon'ble the Chief Justice.