Does The Authorized Representative Of The Accused Company Require To Take Bail In A Criminal Case?

In criminal cases, when a company is made an accused, the company, being a juristic person, authorizes a representative to represent the company before the Court.

Section 305 of Code of Criminal Procedure, 1973 (“Cr.P.C.”)/ Section 342 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNNS”) deals with the procedure when a company is an accused.

Section 305 of Cr.P.C. / 342 of BNNS

Procedure when corporation or registered society is an accused.

(1) In this section,” corporation” means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860 ).

(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.

(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.

(4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub- section (3) shall not apply.

(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.

(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court.

As per the above provision, the company can authorize a person to appear and represent the company, give evidence, and perform all other things as required to defend the case in the Court.

Now, the question that arises is whether the authorized representative of the accused company is required to take bail from the Court.

In the case of Dow Agro Science India Pvt. Ltd. vs. Central Bureau of Investigation, Criminal Misc. No.25244 of 2012 (O&M), the Hon’ble High Court of Punjab and Haryana was dealing with a petition under Section 482 of the Cr.P.C., challenging the order of the trial Court, which directed the authorized representative of the accused company to furnish bail bonds.

The Hon’ble Court while deciding the said petition perused Section 305 of the Cr.P.C. and held that authorized representative cannot be equated to the accused and therefore, cannot be directed to furnish bail bonds. The relevant extract from the judgment is as under:

Thus, as per the above provision, where a Company is an accused then, it may appoint a representative during trial to represent it. As per 305(4) Cr.P.C. where the representative of the Company fails to appear then 305(3) shall not apply. Thus, in that situation, the proceedings in the trial Court shall be carried out…

Thus, a representative of the Company is not to be equated as an accused. The said representative of the Company is not liable for punishment. The said representative merely represents the Company during trial to watch its interest. Since the representative of the Company is not an accused, then he cannot be asked to furnish bail bonds.

Further, in the case of Jay Switches (India) Private Limited vs. State of Haryana, MANU/PH/2279/2014, ), the Hon’ble High Court of Punjab and Haryana while entertaining a petition under Section 482 of the Cr.P.C. set aside the condition imposed by the Trial Court on the authorized representative of the accused company to furnish bond in the sum of Rs. 50,000/- with one surety and held as under:

7. I have gone through the provisions of Section 305 Cr.P.C., which deal with appointment of representative for the purpose of enquiry or trial. Clause 3 to Sub- section 305 sates that where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that thing shall be done in the presence of the representative etc. and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined. Clause 4 of this Section states that where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply.
8. Therefore, the above laid procedure clearly shows that if any representative does not appear, then the condition that he shall be examined or anything is to explained to representative or to be read to him or evidence is to be taken in his presence, will not apply. It is nowhere written in the procedure that like an accused, bail bonds and surety bonds are to be taken or in his absence, non-bailable warrants be issued to procure the presence of the representative. It is also nothing in this provision that evidence must be recorded in the presence of representative or representative must be examined as is required for an accused. Therefore, in view of the specific provisions in the Cr.P.C., no bail bonds can be taken from the representative and his presence cannot be compelled on each and every date.

In view of the above cases and Section 305 of the Cr.P.C., it is apparent that the authorized representative of the accused company cannot be equated with an accused as he is merely representing the accused company pursuant to his authorization. He does not have any direct liability. The authorization in favour of the authorized representative is also revocable.

Therefore, there is no need for the authorized representative of the accused company to take bail or furnish bail bonds while representing the accused company in a criminal case.