Karnataka High Court
M/S. Alembic Pharmaceuticals Ltd., vs State Of Karnataka on 28 September, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28 T H DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .100700/2018
BETWEEN:
1. M/S. ALEMBIC PHARMACEUTICALS LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT,
ALEMBIC ROAD, VADODARA-390003,
GUJARAT, INDIA, REGD. OFFICE
REP. BY ITS DEPUTY GENERAL MANAGAR,
MR. RANBIR SINGH THAKUR.
2. MR.CHIRAYU AMIN, S/O. MR. RAMAN BHAI AMIN,
AGED ABOUT 72 YEARS,
CHAIRMAN, M/S. ALEMBIC PHARMACEUTICALS LTD.
ALEMBIC ROAD, VADODARA-390003,
GUJARAT, INDIA.
3. MR.RANBIR SINGH THAKUR
S/O. MR. THIRU RAM,
AGED ABOUT 48 YEARS,
OCC: DEPUTY GEN. MANAGER
PLOT NO.21,22, EPIP-PHASE I,
JHAMAJRI, BADDI, HIMACHAL PRADESH-173205,
ALSO R/AT: 31-B, PINE HOMES,
DHAKAULI (ZIRAKPUR), SAS NAGAR,
PUNJAB-140603.
NOTE: PETITIONER NO.1 REP. BY PETITIONER NO.3
RESIDENTIAL ADDRESS IS PETITIONER NO.3 IS SAME.
... PETITIONERS
(BY SRI. RAVI B. NAIK, SENIOR COUNSEL FOR SRI. J.
BASAVARAJ, ADVOCATE)
Crl.P.No.100700/2018
:2:
AND:
1. STATE OF KARNATAKA
BY THE ASST. DRUGS CONTROLLER,
BELAGAVI CIRCLE, BELAGAVI.
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, DHARWAD.
2. MR.N.V. RAGHURAM
ASST. DRUGS CONTROLLER,
BELAGAVI CIRCLE,
O/O DEPUTY DRUGS CONTROLLER,
BESIDES AYUSH HOSPITAL,
VACCINE DEPOT, MANDOLI ROAD,
BELAGAVI-590008.
... RESPONDENTS
(BY SRI.PRAVEEN K. UPPAR, HCGP FOR R1)
---
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE COMPLAINT, THE
ORDER DATED 13.09.2017 PASSED BY THE JMFC-II COURT
BELAGAVI IN C.C.NO.808/2017 AGAINST THE PETITIONERS
ARE CONCERNED ONLY AND CONSEQUENTLY QUASH THE
ENTIRE PROCEEDINGS THEREIN FOR OFFENCE PUNISHABLE
UNDER SECTION 18(a)(i) AND UNDER SECTION 27(d) OF
DRUGS AND COSMETICS ACT, 1940.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners seek to quash the order d ated 13.09.2017 in C.C.No.808/2017 passed by the JMFC II Court, Belag avi and the complaint in the said case.
Crl.P.No.100700/2018:3:
2. Second respond ent - the Drug s Controller filed complaint before the Magistrate as per Annexure-A ag ainst the petitioners, alleging that during his inspection of the estab lishment of M/s. Sheetal Medicals, Belag avi, he collected Althrocin Liquid Syrup and sent that for analysis to Regional Drugs Testing Laboratory, Hubb alli.
3. It was further alleg ed that the report of analyst as p er Annexure-C dated 21.07.2015 revealed that the p roduct d id not conform to the standards of d escription i.e., orange coloured susp ension in a sealed screw capped transp arent plastic bottle and it was ad hering to the inner walls of the bottle and did not disperse even after shaking . Second respond ent in the complaint alleged that thereby accused have violated Section 18(a)(i) of the Drugs and Cosmetics Act, 1940, which is punishable under Section 27(d) of the said Act.
4. The learned Magistrate on receiving the complaint d isp ensed with the examination of Crl.P.No.100700/2018 :4: respondent No.2 on the g round that he is a pub lic servant and p assed ord er taking cognizance which reads as follows:
"The complainant is Assistant Drugs Controller, Belagavi Circle, filed the complaint under Section 200 Cr.P.C. The complainant as a Public Servant acting in discharge of his official duties has filed this complaint. Hence sworn statement to complaint is dispensed. Cognizance taken, office is directed to register Crl. Case against the accused in the Criminal Register No.III;Issue summons to accused No.1 to 6
returnable by 03.11.2017."
5. Sri. Ravi B. Naik, learned Senior Counsel app earing for Sri. J. Basavaraj, learned advocate on record for p etitioner, in his arg ument seeks to assail the impug ned ord er and the proceedings on the following grounds:
i. Since accused/petitioners were all residing b eyond the jurisdiction of the Mag istrate, Section 202 Cr.P.C.
requires Mag istrate to cond uct Crl.P.No.100700/2018 :5: inq uiry. But without complying the
same, order is passed mechanically.
ii. The Mag istrate has not recorded his satisfaction that there are g rounds to proceed ag ainst the accused as required und er Section 204 Cr.P.C.
iii. The Magistrate does not even state in the impugned order for which offences cognizance is taken. The ord er is passed without app lication of mind.
iv. There was no material for the trial
Court to take cognizance and to
proceed ag ainst the accused/
petitioners.
In support of his contention, he seeks to rely upon the following judgments:
i. Vijay Dhanuka Etc. vs. Najima Mamtaj Etc., 2014 (14) SCC 638 Crl.P.No.100700/2018 :6: ii. Abhijit Pawar vs. Hemant Madhukar N imbalkar & Ors., (2017)3 SCC 528 iii. GHCL Employees Stock Option Trust vs. India Infoline Ltd., 2013(4) SCC 505 iv. K. Ramachandra Reddy vs. State of Karnataka and Another, 2013(1) KCCR 334 6. Learned HCGP fairly conced es that the
imp ugned order does not conform to the procedure required und er Sections 202 and 204 Cr.P.C.
However, reiterating the grounds of statement of objections, he submits that the merits of the matter has to be considered by the Mag istrate on remand.
7. Having reg ard to the rival contentions, the question that arises for consideration is whether the impugned ord er of taking cognizance and the proceedings in C.C.No.808/2017 have caused failure of ends of justice and amount to the ab use of process of Court.Crl.P.No.100700/2018 :7:
8. The cause title of the comp laint itself discloses that all the accused were resid ing b eyond the jurisd iction of the Mag istrate.
9. Section 202 Cr.P.C. read s as follows:
"202. Postponement of issue of process. - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:"
10. Where accused resid e beyond jurisd iction of Mag istrate, whether conducting inquiry before taking the cognizance is mand atory, was consid ered by the Hon'b le Supreme Court in Vijay Dhanuka's case referred to supra.
Crl.P.No.100700/2018:8:
11. While holding that such inquiry is mand atory, the Hon'ble Sup reme Court in Vijay Dhanuka's case referred to supra held as follows:
"11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:Crl.P.No.100700/2018 :9:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused".
The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we Crl.P.No.100700/2018 : 10 : have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate."
(Emphasis supplied)
12. Relying on the judgment in Vijay Dhanuka's case, in Abhijit Pawar's case the Hon'b le Supreme Court in p ara 23 of the judgment held as follows:
"23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Code of Criminal Procedure was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22.06.2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them Crl.P.No.100700/2018 : 11 : from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment.
24. The essence and purpose of this amendment has been captured by this Court Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638."
(Emphasis supplied)
13. From the above judgments and perusal of Section 202 Cr.P.C., it is clear that having reg ard to the fact of p etitioners' residence b eyond his jurisdiction, the Magistrate oug ht to have cond ucted the inq uiry before taking cognizance. Therefore, the ord er and consequent p roceed ing are bad in law.
14. Further, in GHCL Employees Stock Option Trust's case referred to sup ra, the Hon'ble Sup reme Court while considering what all should be consid ered while taking Crl.P.No.100700/2018 : 12 : cognizance of an offence, in para 14 of the judgment held as follows:
"14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record."
(Emphasis supplied)
15. Thus, it is clear that the order taking cognizance should reflect the app lication of mind by the Mag istrate. The very fact of Mag istrate not noticing the petitioners being resid ents beyond his jurisdiction and non-compliance of the p roced ure prescrib ed und er Section 200 Cr.P.C. shows that there was no application of mind.
Crl.P.No.100700/2018: 13 :
16. This Court in Sri. K. Ramachandra Reddy's case referred to supra held that, while taking cognizance the order should reflect that for which offence the cognizance is taken, otherwise, the order of taking cognizance is untenab le and the Magistrate will not g et jurisdiction to proceed further in that matter. Referring to several other judgments of this Court on the p oint in p aras 23 to 26 of the jud gment in Sri. K. Ramachandra Reddy's case, this Court held as follows:
"23. The position in law will have to be referred to at this juncture. This court, in the case of M/s. Vijaya Bank Vs. State by the Labour Enforcement Officer, reported in ILR 2000 Karnataka 4773, has held that, taking cognizance of an offence being a judicial act after application of mind, the Magistrate should not use "printed proforma" in which even the words "Cognizance is taken" are also printed or typed.
24. In another decision of this court in the case of Prashanth K. Thakur, I.P.S. Vs. Raghunath Kodikal, reported in ILR 2001 Karnataka 1984, this court has held that, where the order of the Magistrate does not indicate as to in Crl.P.No.100700/2018 : 14 : respect of which of the offences cognizance is taken, the order of Magistrate is liable to be set aside and the matter requires to be remanded.
25. In the case of Parvatagouda Vs. Revanashiddayya, reported in ILR 2001 Karnataka 1607, this court has reiterated the aforesaid position in law viz., the requirement of specifically indicating as to what offences are made out and in respect of which of the particular offences, the accused needs to be proceeded against and it is only in respect of those offences that a case can be registered and process comes to be issued. This court, therefore, held that it would be necessary on the part of the learned Magistrate to mention the sections of the concerned statutes and in the case of IPC., the punishable sections in respect of which, according to the learned Magistrate, sufficient ground for proceeding has been made out and if the same are found to be absent, the impugned order is liable to be set aside.
26. In the case of G. A. Purushotham Vs. E.S.I. Corporation, reported in ILR 1993 Karnataka 651, this court has taken the view that without taking cognizance of the offence, the court will Crl.P.No.100700/2018 : 15 : not get jurisdiction to proceed further in the matter goes to the root of the case and if the court had not taken cognizance of the offence or there is no indication that it had applied its mind before taking cognizance of the offence, this illegality goes to the root of the matter and cannot be regularized on the ground that the accused had not challenged the proceedings on the point of cognizance."
(Emphasis supplied)
17. In this case, the Magistrate has not stated which of the offences are mad e out and for which offences he is taking cognizance. Therefore, the imp ugned ord er of taking cognizance and the conseq uent p roceedings in C.C.No.808/2017 on the file of JMFC II Court, Belag avi have caused failure of ends of justice. However, that does not warrant quashing of compliant. The matter has to be remanded to the Mag istrate to p roceed in accord ance with law in the light of the observations mad e above.
18. Therefore, the petition is p artly allowed. The order dated 13.09.2017 p assed by the JMFC, II Court, Belag avi in C.C.No.808/2017 reg ard ing taking Crl.P.No.100700/2018 : 16 : cognizance and all further proceedings consequent to that are hereby quashed.
19. The matter is remanded to the trial Court. The Mag istrate shall proceed on the complaint in accord ance with law in the light of the observations mad e above.
Sd/-
JUDGE gab