Jammu & Kashmir High Court
Managing Director vs State Of Jammu & Kashmir And Others on 13 July, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
....
CRTA no.39/2013
CrlM no.1603/2019
IA no.03/2014; 37/2013
CrlM no.1354/2021
Reserved on: 01.06.2022
Pronounced on: 13.07.2022
Managing Director, Operations
.........Petitioner (s)
Through: Mr Sunil Sethi, Senior Advocate
with Mr Navyug Sethi, Advocate
Versus
State of Jammu & Kashmir and others
.........Respondent(s)
Through: Ms Chetna Manhas, Assisting
Counsel vice Mr Amit Gupta, AAG for
respondent no.1
Mr Raman Sharma, AAG for respondent no.2
Mr P.N.Raina, Senior Advocate with
Mr J. A. Hamal, Advocate for respondents 3 to
5
Mr Shafiq A Wani, Advocate for respondents 6&7
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
JUDGEMENT
1. Transfer of Complaint, bearing File no.01/A, titled as State through Drug Inspector v. Akhil Gadoo and others, from the court of Additional District & Sessions Judge (TADA/POTA) Srinagar, designated Special Court under Drugs & Cosmetics Act, 1940 (for brevity "court below") to the court of Special Judge (Anti-Corruption Cases), Jammu, is implored for in the application in hand.
2. The case summarized by the applicant is that applicant is duly registered global pharmaceutical company operating since 1969, and Page 1 CRTA no.46/2018 manufacturing various drugs. It is being maintained that applicant came to know through media reports that certain samples of drugs lifted from government hospitals had been declared as "Not of Standard Quality"
by the Government Analyst of the Drugs Laboratory under the Drugs & Food Control Organisation, which included the drug, named as Maximizin 625 (Amoxicillin Trihydrate and Potassium Clavunate) Batch no.PBT 1583, allegedly manufactured by applicant-company and supplied by M/s Lifeline Pharmaco Surgicals. It is being claimed by applicant that he enquired and found that M/s Lifeline Pharmaco Surgicals - proforma respondent herein, has used forged, fabricated and tampered authorisation certificate/reports of applicant-company, to avail the tender for supply of the aforesaid drugs to government hospitals and that in this regard applicant-company also issued a clarification that applicant has not authorised any party directly or indirectly to supply the above drug to the hospitals in J&K. It is being further averred that in view of seriousness of the matter, the Government constituted a three members Committee vide Order no. 239-HME of 2013 dated 4th April 2013, which reported that M/s Lifeline Pharmaco Surgical used forged, fabricated and tampered authorisation certificate/reports of applicant-company and that in pursuance of communication no.PS/CS/ H&ME/76/2013 dated 20th April 2013, an FIR no.10/2013 came to be registered in police station Crime Branch Jammu for commission of offences punishable under Sections 274, 420, 465, 467, 468, 471, 120-B RPC read with Section 5(2) P. C. Act, Section 27 of Drugs and Cosmetics Act 1940.
Page 2 CRTA no.46/2018 Notwithstanding this fact, it is next stated by applicant, the Drugs Departments without waiting for completion of investigation by the Crime Branch, hastened to file a complaint before the court below, implicating therein applicant-company as one of the accused in the complaint with the allegations that applicant has conspired with other accused persons in manufacture, marketing and distribution of spurious drugs for commission of offences under Section 17 B, 18 (a) (I) read with Section 27(a) of Drugs & Cosmetics Act 1940.
It is being further averred that applicant challenged cognisance order before this Court in a petition under Section 561-A Cr.P.C. bearing 561-A no.66/2013, in which proceedings against applicant vide order dated 3rd May 2013 were stayed and the said petition was subsequently heard along with PIL no.06/2013, which was disposed of vide order dated 23rd May 2013, asking petitioner to appear before the court below and agitate all the grounds taken in the said petition.
According to applicant, the Crime Branch has now completed the investigation in case FIR no.10/2013 and filed charge-sheet before the court of Special Judge (Anti-Corruption) Cases, Jammu, against 14 persons, establishing commission of offences under Section 274, 420, 465, 467, 468, 471, 120-B RPC read with Section 5(2) P.C. Act and 27 Drugs & Cosmetics Act 1940. It is being claimed by applicant that Crime Branch has not found the role of applicant in preparation or supply of fake drugs and, therefore, absolved it of criminal charges and that in view of filing of charge-sheet by the Crime Branch, the complaint filed by Drug Inspector before the court below cannot Page 3 CRTA no.46/2018 proceed as there cannot be two separate trials with respect to the offences arising out of the same transaction which may result into a contradictory finding. This is how the instant application has come up before this Court.
3. Objections in opposition to and for dismissal of the application in hand have been filed by respondent no.1, vehemently resisting the transfer of the case from the court below as the application is based on flimsy grounds, having no existence in the eye of law.
4. Heard learned counsel for parties and perused the record.
5. The instant application for transfer of the complaint from the court below is governed and regulated by the provisions of Section 526 of J&K Code of Criminal Procedure (erstwhile State of J&K), which for facility of ready reference is reproduced infra:
"526. High Court may transfer case or itself try it. --
(1) Whenever it is made to appear to the High Court--
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) that an order under this section will tend to the general convenience of the parties or witness; or
(i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before itself; or
(iv) that an accused person be committed for trial to itself or to a Court of Session.
(l-a) Notwithstanding anything contained in sub-section (1), no application shall lie to the High Court for the exercise of its powers under the said sub-section for transferring any case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
Page 4 CRTA no.46/2018 (2) When the High Court withdraws for trial before itself any case from any Court, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn. (3) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. (4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Government Advocate, be supported by affidavit or affirmation. (5) When an accused person makes an application under this section, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this section award by way of compensation to the person opposing the application.
(6) Notice to Public Prosecutor of application under this section. Every accused person making any such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made and no order shall be made on the merits of the application, unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6-A) Where any application for the exercise of the power conferred by this section is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding two hundred and fifty rupees as it may consider proper in the circumstances of the case.
(7) Nothing in this section shall be deemed to affect any order made under section 197.
(8) Adjournment on application under this section or under section 528.
-- If in an inquiry under Chapter VIII or in any trial, any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section or under section 528, the Court shall upon his executing, if so required, a bond without sureties, of an amount not exceeding two hundred rupees, that he will make such application within a reasonable time to be fixed by the Court, adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon:
Provided that nothing herein contained shall require the Court to adjourn the case upon a second or subsequent intimation from the same party if the application is intended to be made to the same Court to which the party has been given an opportunity of making such an application, or, where an adjournment under this sub-section has already been obtained by one of several accused, upon a subsequent intimation by any other accused. (9) Notwithstanding anything hereinbefore contained, a Judge presiding in a Court of Session shall not be required to adjourn a trial under sub-
section (8) if he is of opinion that the person notifying his intention of making an application under this section has had a reasonable opportunity of making such an application and has failed without sufficient cause to take advantage of it.
Explanation. -- Nothing contained in sub-section (8) or sub-section (9) restricts the powers of a Court under section 344. (10) If, before the argument (if any) for admission of an appeal begins, or in the case of an appeal admitted, before the argument for the appellant hundred rupees that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal for such a period, as will afford sufficient time for the application to be made and an order to be obtained thereon."
Page 5 CRTA no.46/2018
6. It is deducible from above Section 526 Cr.P.C., which is relatively pari materia to Section 407 Cr.P.C. (Central), that when it appears that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate to the High Court, it may transfer the case. The power can be exercised in three ways, namely, (1) the High Court can suo motu; (2) the High Court can act on application of the lower court; or (3) the High Court can act on an application of a party. The conditions to be satisfied for invoking the powers are that a fair and impartial inquiry or trial cannot be held otherwise; some question of law of unusual difficulty is like to arise; it will tend to the general convenience of the parties or witnesses; it is expedient for the ends of justice.
7. On a careful reading of Section 526 Cr.P.C., it will be evident that the purpose of transferring a criminal case from one court to another is to achieve a fair and impartial enquiry or trial or to handle some question of law of unusual difficulty or for meeting the general convenience of the parties or witnesses and the like. The High Court, notwithstanding the jurisdictional restrictions imposed by Sections 177 and 178 Cr.P.C. (erstwhile State of J&K) has power to transfer a case from one court to another for enabling a fair trial in all respects and thereby to do complete justice in a given case.
8. Salient feature of the power, exercisable under Section 526 Cr. P.C., is that by invoking it, no cause could be decided by the High Court. In other words, what is granted or declined under Section 526 Cr. P.C. is only the choice of forum and that the High Court, while exercising its Page 6 CRTA no.46/2018 power under Section 526 Cr. P.C., does not adjudicate any cause; it simply specifies a forum for fair trial.
9. It is germane to mention here that the aim and purpose of criminal trial is to dispense with fair and impartial justice uninfluenced by extraneous considerations.
In the present case, FIR no.10/2013 was registered in police station Crime Branch Jammu, after a full-fledged enquiry conducted by the Government of J&K and after receipt of the report from the Committee constituted by the Government, for various offences including Section 27 of Drugs and Cosmetics Act, 1940.
Insofar as subsequent complaint filed by respondent no.1 before the court below is concerned, it also, amongst others, mentions commission of offence under Section 27 (a) of Drugs and Cosmetics Act 1940.
10.In addition to above, as urged by learned senior counsel for applicant, witnesses cited in the complaint before the court below are from Jammu and trial of complaint at Srinagar would result in enormous delay in conclusion of the Trial besides unnecessary expenses which could be avoided.
It is also being exhorted by learned senior counsel that 11 accused persons, including applicant, out of 14 accused persons in the complaint before the court below are from outside State of J&K and it would be very difficult for them to partake in the trial before court below on every date of hearing sometimes due to hostile weather conditions to which they are not used to.
Page 7 CRTA no.46/2018 It is being next averred by learned senior counsel that it is not the case that alleged offence has been committed exclusively within the jurisdiction of courts at Srinagar as the origin of offence is at Jammu and most part of alleged offences have been alleged to be committed at Jammu and besides nine accused persons, whose are also amongst accused persons in the complaint before the court below, have been implicated as accused in the Challan filed by Crime Branch Jammu before the court of Special Judge (Anti-Corruption) Cases, Jammu, with respect to the same offences as alleged in the complaint in addition to other offences and, thus, there cannot be two trials with respect to same offence which is violative of Article 21 of the Constitution of India.
Apart from provisions of Section 526 Cr.P.C., learned senior counsel has also invited attention of this Court to the provisions of Section 205-E of Cr.P.C. to submit that transfer of the complaint pending before the court below has become imperative so as to avoid conflicting findings and simultaneously save accused persons of facing double jeopardy.
11.Section 205-E Cr.P.C. (of erstwhile State of J&K), which is pari materia to Section 210 Cr.P.C. (Central Code), provides that when there is a complaint case and police investigation in respect of the same offence. Subsection (1) thereof provides that when in a case instituted otherwise than on a police report, i.e., a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is subject matter of Page 8 CRTA no.46/2018 inquiry or trial held by him, the Magistrate is required to stay proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. Subsection (2) of Section 210 envisions that if a report is made by the I.O. under Section 173 and on such report cognisance of any offence is taken by the Magistrate against any person, who is an accused in a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report.
12.The object of introducing Section 210 Cr.P.C. (Central), or for that matter Section 205-E Cr.P.C., happens to be under the garb of the Constitution of India, which has also been followed under the Code by way of introduction of Section 300 Cr.P.C. (Central) whereby and whereunder accused has been saved to face double jeopardy. Verily, if a complaint petition as well as police case launched for same occurrence against same accused is allowed to proceed independently, then in that event, there would be flagrant violation of the mandate of the law, because of the fact that for the same occurrence, the accused has to suffer the rigour of trial twice as for which he is found tried with ultimate result may be, by way of conviction or acquittal. The aforesaid event will also frustrate the scope of Section 223 Cr.P.C. (Central) whereunder, apart from other persons, accused of the offence committed in the course of the same transaction are to be charged conjointly.
13.Indisputably, FIR no.10/2013 has been lodged, followed by presentation of Challan before the court at Jammu. A complaint has also Page 9 CRTA no.46/2018 been filed by respondent no.1 as to the same occurrence/transaction before the court below at Srinagar. If both the cases are permitted to proceed independently, then it may end up, perhaps, in conflicting findings and judgements, thereby defeating the dispensation of fair and impartial justice.
14.The Apex Court in Kamlesh Kumar v. State of Jharkhand, 2013 (15) SCC 460, has considered the nature of power under Section 407 Cr.P.C. (Central) in a different context. The Apex Court observed thus:
"The High Court does have the power to transfer the cases and appeals under Section 407 Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) Cr. P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Session. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution of India."
Thus, the proposition that power vested in the High Court by virtue of Section 407 Cr.P.C. (Central) is a judicial power is indubitable. Besides, the Apex Court has expanded the fundamental right guaranteed under Article 21 of the Constitution by proclaiming that a right to fair and speedy trial is a non-negotiable right and also a facet of life and personal liberty. I do not intend to burden this judgment by citing a cartload of precedents as the above statement of law is unassailable.
15.A contention has been raised by learned counsel for respondents that applicant is not accused in the case pending before the Special Judge (Anti-Corruption Cases), Jammu, and, therefore, he cannot seek transfer of the case from the files of court below.
Page 10 CRTA no.46/2018 The above contention is misconceived owing to the fact that the expression 'party interested', used in Section 407 (2) Cr.P.C. (Central)
- Section 526 (3) Cr.P.C. (erstwhile State of J&K), is wide enough to cover a prospective accused. The words used in Section 407 are "whenever it is made to appear to the High Court", and Subsection (2) of Section 407 Cr.P.C. (Central)/Subsection (3) of Section 526 Cr.P.C. (erstwhile State of J&K) provides that the High Court may act, inter alia, on the application of a 'party interested'. The usage of these words makes the intention of the legislature self-evident, so as to give wide powers to the High Court to act under the aforesaid provisions of Section 407 Cr.P.C. Reliance in this regard is placed upon K. Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767, wherein it was observed that the term 'party interested' has to be given a wider meaning. If the legislature intended to narrow the scope of the said power, the words used would have been 'party to the proceedings'. Reliance is also placed on State of Jharkhand and another v. Govind Singh (2005) 10 SCC 437, wherein the Apex Court has observed that where the words are clear, there is no obscurity or ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to innovate or to take upon itself the task of amending or altering the statutory provisions. A fine line between adjudication and legislation has to be observed. Reliance is also placed on Swaran Singh and others v. State of Punjab and others, (1994) 3 SCC 544, wherein it has been held that a 'party interested' means a person who is directly interested in the outcome of the dispute.
Page 11 CRTA no.46/2018 In the backdrop of above discourse and well settled legal position, applicant has every right to approach this Court with application in hand beseeching transfer of the complaint from the court below to the Special Judge (Anti-Corruption Cases), Jammu.
16.For all what has been observed, considered and analyzed herein above, the application in hand is allowed and the complaint, bearing File no.01/A, titled as State through Drug Inspector v. Akhil Gadoo and others, is withdrawn from the court of Additional District & Sessions Judge (TADA/POTA) Srinagar, (designated Special Court under Drugs & Cosmetics Act, 1940) and transferred to the court of Special Judge (Anti-Corruption Cases), Jammu, and shall be tried together with the Police Case in FIR no.10/2013 P/S Crime Branch, Jammu.
17.Disposed of as above.
18.Copy be sent down.
(Javed Iqbal Wani) Judge Jammu 13.07.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes / No. Page 12 CRTA no.46/2018