LALANKUMAR SINGH & ORS. VERSUS STATE OF MAHARASHTRA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1757 OF 2022

[Arising out of SLP (Crl.) No. 8882 of 2015]

LALANKUMAR SINGH & ORS. …APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA …RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. Leave granted.

2. This appeal arises out of the judgment and order dated

25th June 2015 passed by the learned Single Judge of the

High Court of Judicature of Bombay, at Aurangabad, in

Criminal Writ Petition No.288 of 2015, thereby dismissing

the said criminal writ petition filed by the appellants herein

and upholding the order of issuance of process dated 30th

March 2009 passed by the learned Chief Judicial

Magistrate, Beed (hereinafter referred to as “the learned

CJM”) and the order passed by the learned Sessions Judge,

Beed dated 25th November 2014 dismissing the Criminal

Revision being Criminal Revision Petition No.115 of 2013

filed by the appellants thereagainst.

3. The facts, in brief, giving rise to the present appeal are

as under:

3.1 The Appellants are the Directors of M/s Cachet

Pharmaceuticals Private Ltd. (hereinafter referred to as

“CPPL”). CPPL was granted permission to manufacture

‘Hemfer Syrup’ which falls under Schedule C & C(1) to the

Drugs & Cosmetics Rules, 1945 (hereinafter referred to as

“the said Rules”).

3.2 On 30th August 2006, Sh. N. A. Yadav, the then Drugs

Inspector, Food and Drugs Administration, Beed,

Maharashtra, visited the premises of M/s. Priya Agencies at

Beed and purchased ‘Hemfer Syrup’, from which he had

drawn samples of the drug. On 31st August 2006, he sent

one such sample to the Government Analyst, Maharashtra

State Drug Control Laboratory Mumbai so as to have the

drug tested. On 26th February 2007, he received a test

report dated 13th February 2007 from the Government

Analyst stating that the sample was not of standard quality

as the content of Cyanocobalamin was less than the

permissible limit, i.e., 39% of the label amount. On the

same day, the manufacturer of the drug, i.e., CPPL, was

informed by a registered post about the test report.

3.3 On 29th March 2007, Sh. Vijay Jain, Deputy Manager,

QA of CPPL requested the Drug Inspector to send the

samples again for analysis. Pursuant to an application filed

by M/s Alkem Laboratories, the distributor of CPPL, the

learned CJM, Beed sent the samples of ‘Hemfer Syrup’ for

reanalysis on 24th April 2007. On 10th July 2007, the

Learned CJM, Beed received the test report from the Central

Drug Laboratory, Calcutta stating therein that the sample

was not of standard quality as it did not conform to the

accepted limits of Cyanocobalamin content.

3.4 Vide letter dated 21st August 2008, the Drug Inspector

called upon CPPL to furnish the particulars of Directors,

Articles of Association, Memorandum of Association, copies

of License to manufacture and sell drugs, particulars of

technical persons, and all such information as was needed

to be provided under the Drugs & Cosmetics Act, 1940

(hereinafter referred to as “the said Act”). In reply to this

letter, CPPL informed the Drug Inspector that the report

dated 10th July 2007 was signed by “InCharge Director”

and not the Director of Central Drugs Laboratory and thus

requested him to send a proper report signed by the

Director of the Central Drugs Laboratory.

3.5 Vide letter dated 12th January 2009, the Drug

Inspector again called upon CPPL to furnish particulars that

were previously sought. Vide letter dated 12th February

2009, CPPL provided the information and documents

requested by the Drug Inspector and it was categorically

stated therein that the ‘Hemfer Syrup’ was manufactured

under the supervision and technical guidance of Sh. Ashok

Kumar, the FDA approved manufacturing chemist for liquid

orals.

3.6 Mr. Ashok Kumar (Accused No. 9) wrote an individual

letter dated 13th February 2009 to the Drug Inspector

stating therein that the said batch of ‘Hemfer Syrup’ was

manufactured under his supervision and that the drug

complied with the requisite standards. Similarly, Mr.

Naresh Roy (Accused No. 10) also wrote a letter dated 13th

February 2009 to the Drug Inspector stating therein that

the said batch of the ‘Hemfer Syrup’ was tested under his

supervision and from the test results it appeared that the

drug complied with the requisite standards.

3.7 Pursuant to the orders to take legal action against the

manufacturer of the drug by the Joint Commissioner (H.Q.)

and Controlling Authority, Food & Drug Administration,

Mumbai, the Complaint bearing RCC No. 233 of 2009 came

to be filed before the Ld. Chief Judicial Magistrate, Beed

under Section 18(a)(i) read with Sections 16 and 34 of the

said Act and punishable under Section 27(d) of the said Act.

In the said complaint, the present Appellants being

Directors of the Company were arrayed as Accused Nos. 5 to

3.8 The learned CJM, Beed issued Summons to all the

accused, including the Appellants herein vide Order dated

30th March 2009. The Appellants filed a Criminal Revision

Petition against the summoning order before the learned

Sessions Judge, Beed on the ground that there are no

specific averments in terms of Section 34 of the said Act as

to the role played by the Directors and thus sought for the

Summoning Order to be quashed. However, the learned

Sessions Judge, Beed rejected the said Criminal Revision

Petition noting that there is a specific averment in the

complaint that the appellants are concerned with the

manufacture, distribution and sale of ‘Hemfer Drug’.

3.9 The Appellants preferred a Criminal Writ Petition

before the Bombay High Court assailing the order passed by

the learned Sessions Judge. The High Court, vide the

impugned judgment, dismissed the said Criminal Writ

Petition on the ground that all the Directors were

conducting the business of CPPL and thus, they were

involved in the manufacturing process.

3.10 Hence, the present appeal.

4. We have heard Shri C.U. Singh and Shri Anupam Lal

Das, learned Senior Counsels appearing on behalf of the

appellants and Shri Siddharath Dharmadhikari, learned

counsel appearing on behalf of the respondentState of

Maharashtra.

5. Shri C.U. Singh and Shri Anupam Lal Das, learned

Senior Counsels submit that Section 34 of the said Act

specifically provides that only such person who, at the time

of the commission of the offence, was incharge 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 offence and shall be liable to be proceeded

against and punished accordingly.

6. Shri C.U. Singh, learned Senior Counsel, further

submits that Rule 76 of the said Rules prescribes a Form of

licence to manufacture drugs specified in Schedule C and

C(1), excluding those specified in Part XB and Schedule X,

or drugs specified in Schedule C, C(1) and X and the

conditions for the grant of such licence. He further submits

that, before a license in Form 28 or Form 28B is granted,

certain conditions are required to be complied with by the

applicant. He submits that under subrule (1) of Rule 76 of

the said Rules, the manufacture is required to be conducted

under the active direction and personal supervision of

competent technical staff consisting at least of one person

who is a wholetime employee and who possesses the

requisite qualification as prescribed under the said Rules.

He further submits that under subrule (4) of Rule 76 of the

said Rules, an applicant is required to provide and maintain

adequate staff, premises and laboratory equipment for

carrying out such tests of the strength, quality and purity of

the substances as may be required to be carried out by him

under the provisions of Part X of the said Rules. He further

states that under subrule (4A) of Rule 76 of the said Rules,

the head of the testing unit is required to possess a degree

in Medicine or Science or Pharmacy or Pharmaceutical

Chemistry of a University recognised for the said purpose.

He is also required to have experience in the testing of

drugs, which in the opinion of the licensing authority is

considered adequate. He submits that Form 28 is a license

to manufacture for sale or distribution of drugs in

accordance with Rule 76 of the said Rules. Learned Senior

Counsel submits that in Form 28, the names of the

approved competent technical staff are required to be given.

He further submits that condition No.3 of the Conditions of

Licence requires that if there is any change in the

competent technical staff, the same shall be forthwith

reported to the licensing authority.

7. Learned Senior Counsel submits that Schedule M to

the said Rules provides for good manufacturing practice and

requirements of premises, plant and equipment for

pharmaceutical products. Learned Senior Counsel submits

that clause 6.1 of Part I of Schedule M specifically provides

that the manufacture shall be conducted under the direct

supervision of competent technical staff with prescribed

qualifications and practical experience in the relevant

dosage form and/or active pharmaceutical products. It is

further the submission of the learned Senior Counsel that

as per clause 6.2 thereof, the head of the Quality Control

Laboratory is required to be independent of the

manufacturing unit. It also requires that the testing shall

be conducted under the direct supervision of competent

technical staff, who shall be whole time employees of the

licensee.

8. Shri Singh further submits that in the licence which is

duly signed by the designated licensing authority, the

names of the approved competent technical staff are already

given. It is further submitted that in the reply dated 13th

February 2009 to the Drug Inspector, Food & Drug

Administration, M.S. Beed, Mr. Naresh Roy, Assistant

Manager Q.A. (Accused No.10) had stated that the raw

material was analysed in the Quality Control Department by

Mr. Aftab, Chemist under his supervision. It is further

informed that the finished product of the said batch of the

drug was analysed by Mr. M.K. Sharma under his

supervision. Mr. Naresh Roy (Accused No.10) further

informed that he was approved by the Rajasthan FDA as a

competent person.

9. Learned Senior Counsel submits that similarly, Mr.

Ashok Kumar, Assistant Manager, Production (Accused

No.9) had also informed the Drug Inspector by

communication dated 13th February 2009 that he was

approved by the Rajasthan FDA. The goods were released

after the final approval from Quality Control. He further

states that the manufacturing record of the said batch was

prepared by him and it bears his signature.

10. Shri Singh further submits that merely mentioning

that the present appellants, being the Directors of the

accused company, were responsible to the company for the

conduct of the business of the company would not be

sufficient to initiate proceedings against them. It is

submitted that, unless and until there is a specific averment

as to what was the role in the conduct of the business of the

company, a person cannot be proceeded against solely on

the ground that he was a director of the company. He relies

on various judgments of this Court in support of this

proposition.

11. Shri C.U. Singh further submits that there is no formal

order of issuance of the process passed by the learned CJM.

It is submitted that, while issuing process, a duty is cast

upon the Magistrate to arrive at a subjective satisfaction

that there is sufficient ground to proceed. He submits that

there is no such order which would reflect the application of

mind by the learned CJM and on this ground also, the

impugned order is liable to be set aside.

12. Shri Siddharath Dharmadhikari, learned counsel, on

the contrary, submits that perusal of the complaint, and

specifically paragraphs 3 and 25 thereof would reveal that

there is sufficient compliance of requirement of Section 34

of the said Act. He submits that the complaint has to be

read as a whole and cannot be read in a piecemeal manner.

Learned counsel relies on the judgment of this Court in the

case of U.P. Pollution Control Board vs. Mohan Meakins

Ltd. and others1

in support of the proposition that there is

1 (2000) 3 SCC 745

no legal requirement for the trial Court to pass a detailed

order while issuing process. He also relies on the judgment

of this Court in the case of Dinesh B. Patel and others vs.

State of Gujarat and another2

to buttress his submission

that the averments made in the complaint are sufficient to

proceed against the present appellants.

13. In the case of State of Haryana vs. Brij Lal Mittal

and others3

, this Court observed thus:

“8. Nonetheless, we find that the

impugned judgment of the High Court has

got to be upheld for an altogether different

reason. Admittedly, the three respondents

were being prosecuted as directors of the

manufacturers with the aid of Section 34(1)

of the Act which reads as under:

“34. Offences by companies.—(1)

Where an offence under this Act has been

committed by a company, every person

who at the time the offence 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 offence and shall be

liable to be proceeded against and

punished accordingly:

Provided that nothing contained in

this subsection shall render any such

2 (2010) 11 SCC 125

3 (1998) 5 SCC 343

person liable to any punishment

provided in this Act if he proves that

the offence was committed without his

knowledge or that he exercised all due

diligence to prevent the commission of

such offence.”

It is thus seen that the vicarious liability of

a person for being prosecuted for an offence

committed under the Act by a company

arises if at the material time he was in

charge of and was also responsible to the

company for the conduct of its business.

Simply because a person is a director of the

company it does not necessarily mean that

he fulfils both the above requirements so as

to make him liable. Conversely, without

being a director a person can be in charge of

and responsible to the company for the

conduct of its business. From the complaint

in question we, however, find that except a

bald statement that the respondents were

directors of the manufacturers, there is no

other allegation to indicate, even prima

facie, that they were in charge of the

company and also responsible to the

company for the conduct of its business.”

14. It could thus be seen that this Court had held that

simply because a person is a director of the company, it

does not necessarily mean that he fulfils the twin

requirements of Section 34(1) of the said Act so as to make

him liable. It has been held that a person cannot be made

liable unless, at the material time, he was incharge of and

was also responsible to the company for the conduct of its

business.

15. In the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta

Bhalla and another4

, this Court was considering the

question as to whether it was sufficient to make the person

liable for being a director of a company under Section 141 of

the Negotiable Instruments Act, 1881. This Court

considered the definition of the word “director” as defined in

Section 2(13) of the Companies Act, 1956. This Court

observed thus:

“8. ……. There is nothing which suggests

that simply by being a director in a

company, one is supposed to discharge

particular functions on behalf of a

company. It happens that a person may

be a director in a company but he may

not know anything about the daytoday

functioning of the company. As a director

he may be attending meetings of the

Board of Directors of the company where

usually they decide policy matters and

guide the course of business of a

company. It may be that a Board of

Directors may appoint subcommittees

consisting of one or two directors out of

the Board of the company who may be

made responsible for the daytoday

functions of the company. These are

4 (2005) 8 SCC 89

matters which form part of resolutions of

the Board of Directors of a company.

Nothing is oral. What emerges from this

is that the role of a director in a company

is a question of fact depending on the

peculiar facts in each case. There is no

universal rule that a director of a

company is in charge of its everyday

affairs. We have discussed about the

position of a director in a company in

order to illustrate the point that there is

no magic as such in a particular word, be

it director, manager or secretary. It all

depends upon the respective roles

assigned to the officers in a company.

…..”

16. It was held that merely because a person is a director

of a company, it is not necessary that he is aware about the

daytoday functioning of the company. This Court held that

there is no universal rule that a director of a company is in

charge of its everyday affairs. It was, therefore, necessary,

to aver as to how the director of the company was in charge

of daytoday affairs of the company or responsible to the

affairs of the company. This Court, however, clarified that

the position of a managing director or a joint managing

director in a company may be different. This Court further

held that these persons, as the designation of their office

suggests, are in charge of a company and are responsible

for the conduct of the business of the company. To escape

liability, they will have to prove that when the offence was

committed, they had no knowledge of the offence or that

they exercised all due diligence to prevent the commission of

the offence.

17. In the case of Pooja Ravinder Devidasani vs. State

of Maharashtra and another5

this Court observed thus:

“17. …… Every person connected with

the Company will not fall into the ambit

of the provision. Time and again, it has

been asserted by this Court that only

those persons who were in charge of and

responsible for the conduct of the

business of the Company at the time of

commission of an offence will be liable for

criminal action. A Director, who was not

in charge of and was not responsible for

the conduct of the business of the

Company at the relevant time, will not be

liable for an offence under Section 141 of

the NI Act. In National Small Industries

Corpn. [National Small Industries Corpn.

Ltd. v. Harmeet Singh Paintal, (2010) 3

SCC 330 : (2010) 1 SCC (Civ) 677 : (2010)

2 SCC (Cri) 1113] this Court observed:

(SCC p. 336, paras 1314)

5 (2014) 16 SCC 1

“13. Section 141 is a penal provision

creating vicarious liability, and which,

as per settled law, must be strictly

construed. It is therefore, not sufficient

to make a bald cursory statement in a

complaint that the Director (arrayed as

an accused) is in charge of and

responsible to the company for the

conduct of the business of the

company without anything more as to

the role of the Director. But the

complaint should spell out as to how

and in what manner Respondent 1 was

in charge of or was responsible to the

accused Company for the conduct of

its business. This is in consonance

with strict interpretation of penal

statutes, especially, where such

statutes create vicarious liability.

14. A company may have a number

of Directors and to make any or all the

Directors as accused in a complaint

merely on the basis of a statement that

they are in charge of and responsible

for the conduct of the business of the

company without anything more is not

a sufficient or adequate fulfilment of

the requirements under Section 141.”

(emphasis in original)

18. In Girdhari Lal Gupta v. D.H.

Mehta [Girdhari Lal Gupta v. D.H. Mehta,

(1971) 3 SCC 189 : 1971 SCC (Cri) 279 :

AIR 1971 SC 2162] , this Court observed

that a person “in charge of a business”

means that the person should be in

overall control of the daytoday business

of the Company.

19. A Director of a company is liable to

be convicted for an offence committed by

the company if he/she was in charge of

and was responsible to the company for

the conduct of its business or if it is

proved that the offence was committed

with the consent or connivance of, or was

attributable to any negligence on the part

of the Director concerned (see State of

Karnataka v. Pratap Chand [State of

Karnataka v. Pratap Chand, (1981) 2 SCC

335 : 1981 SCC (Cri) 453] ).

20. In other words, the law laid down by

this Court is that for making a Director of

a company liable for the offences

committed by the company under Section

141 of the NI Act, there must be specific

averments against the Director showing

as to how and in what manner the

Director was responsible for the conduct of

the business of the company.

21. In Sabitha Ramamurthy v. R.B.S.

Channabasavaradhya [Sabitha

Ramamurthy v. R.B.S.

Channabasavaradhya, (2006) 10 SCC

581 : (2007) 1 SCC (Cri) 621] , it was held

by this Court that: (SCC pp. 58485, para

“7. … it is not necessary for the

complainant to specifically reproduce

the wordings of the section but what is

required is a clear statement of fact so

as to enable the court to arrive at a

prima facie opinion that the accused is

vicariously liable. Section 141 raises a

legal fiction. By reason of the said

provision, a person although is not

personally liable for commission of such

an offence would be vicariously liable

therefor. Such vicarious liability can be

inferred so far as a company registered

or incorporated under the Companies

Act, 1956 is concerned only if the

requisite statements, which are

required to be averred in the complaint

petition, are made so as to make the

accused therein vicariously liable for

the offence committed by the company.”

(emphasis supplied)

By verbatim reproducing the words of the

section without a clear statement of fact

supported by proper evidence, so as to

make the accused vicariously liable, is a

ground for quashing proceedings initiated

against such person under Section 141 of

the NI Act.”

18. It could thus clearly be seen that this Court has held

that merely reproducing the words of the section without a

clear statement of fact as to how and in what manner a

director of the company was responsible for the conduct of

the business of the company, would not ipso facto make the

director vicariously liable.

19. A similar view has previously been taken by this Court

in the case of K.K. Ahuja vs. V.K. Vora and another6

20. In the case of State of NCT of Delhi through

Prosecuting Officer, Insecticides, Government of NCT,

Delhi vs. Rajiv Khurana7

, this Court reiterated the

position thus:

“17. The ratio of all these cases is that

the complainant is required to state in

the complaint how a Director who is

sought to be made an accused, was in

charge of the business of the company or

responsible for the conduct of the

company's business. Every Director need

not be and is not in charge of the

business of the company. If that is the

position with regard to a Director, it is

needless to emphasise that in the case of

nonDirector officers, it is all the more

necessary to state what were his duties

and responsibilities in the conduct of

business of the company and how and in

what manner he is responsible or liable.”

6 (2009) 10 SCC 48

7 (2010) 11 SCC 469

21. Recently, in the case of Ashoke Mal Bafna vs. Upper

India Steel Manufacturing and Engineering Company

Limited8

, this Court observed thus:

“9. To fasten vicarious liability under

Section 141 of the Act on a person, the

law is well settled by this Court in a

catena of cases that the complainant

should specifically show as to how and in

what manner the accused was

responsible. Simply because a person is a

Director of a defaulter Company, does not

make him liable under the Act. Time and

again, it has been asserted by this Court

that only the person who was at the helm

of affairs of the Company and in charge of

and responsible for the conduct of the

business at the time of commission of an

offence will be liable for criminal action.

(See Pooja Ravinder Devidasani v. State of

Maharashtra [Pooja Ravinder

Devidasani v. State of Maharashtra,

(2014) 16 SCC 1 : (2015) 3 SCC (Civ)

384 : (2015) 3 SCC (Cri) 378 : AIR 2015

SC 675] .)

10. In other words, the law laid down by

this Court is that for making a Director of

a Company liable for the offences

committed by the Company under

Section 141 of the Act, there must be

specific averments against the Director

showing as to how and in what manner

8 (2018) 14 SCC 202

the Director was responsible for the

conduct of the business of the Company.”

22. In the light of these observations, let us examine the

averments made in the complaint insofar as the present

appellants are concerned:

“3. That, Accused no. 5 to 8 are the

Directors of the M/s Cachet

Pharmaceuticals Pvt. Ltd. village Thana

Baddi, Tehsil Nalagarh dist. Solan (H.P.)

Pin code 173205 head office 415,

Shahanahar, Worli, Mumbai 400018,

and looking after day to day activities of

the company.

That, Accused no. 4 is the Pvt. Ltd.

Company and is doing the business of

manufacturing, buying, selling, importing

and exporting of and/or dealers in

Pharmaceuticals, Cosmetics, Beauty aids,

Oils, Chemicals, Food products and

provisions, Veterinary and Surgical

Equipments, Medicinal preparations

including Spirit.

That, Accused no. 4 has mfg. unit at no.

(1) Village Thana Baddi, Tehsil Nalagarh

Dist. Solan (H.P.) Pin code 173205 and

no. (2) at C582, Ricco Ind. Area Bhiwadi,

Dist. Alwar, Rajasthan.

That, Accused no.4 are holding drug mgf.

License No. MNB/05/267 in form 25 and

licence no. MB/05/268 in form 28

granted on 17.3.2006 valid upto

16.3.2011.

*** *** ***

25. That, on 12.2.2009, the complainant

visited and inspected the premises of M/s

Cachet Pharmaceuticals Pvt. Ltd. village

Thana Baddi, Tehsil Nalagarh Dist. Solan

(H.P.) Pin code 173205 that is accused

no.4. At the time of inspection, Shri Ajay

Prakash Gupta Vice President Technical,

accused no. 9 and 10 were present.

During enquiry, it was revealed that

Accused no. 4 to 10 manufactured

"Hemfer syrup Mfg. Lic. No.

MB/05/268/B. No. HMS/6015 CMfg.

Date May2006 which has been declared

to be NOT OF STANDARD QUALITY at

the premises of M/s Cachet

Pharmaceuticals Pvt. Ltd. village Thana

Baddi, Tehsil Nalagarh Dist. Solan (H.P.)

Pin code 173205 that is accused no.4

under licence No. MB/05/268 and sold

the above said drugs to M/s Priya

Agencies Behind Dr. Vaidya Hospital

Jalna Road, Beed, Dist. Beed through

M/s Alkem Laboratories Ltd. situated at

reality warehousing Pvt. Ltd., Gut

No.2323/1 property no. 115, Pune Nagar

road, At. Post Wagholi, Tai. Haveli, Dist.

Pune 412207.”

23. It can thus be seen that there are no specific

averments insofar as the present appellants are concerned.

It is further to be noted that the present appellants are

neither the managing director nor the wholetime directors

of the accused company.

24. It is further to be noted that, in accordance with the

provisions of Rule 76 of the said Rules read with Form 28,

the Accused Nos. 9 and 10 have specifically been approved

by the licensing authority in Form 28. Accused No.9 was

approved as a person under whose active direction and

personal supervision the manufacture would be conducted

as required under subrule (1) of Rule 76 of the said Rules.

Similarly, Accused No.10, who was approved as a head of

the testing unit, was to be incharge for carrying out the test

of the strength, quality and purity of the substances as may

be required under the provisions of Part X of the said Rules.

We are therefore of the considered view that the complaint

is totally lacking the requirement of Section 34 of the said

Act.

25. The impugned orders are liable to be quashed and set

aside on another ground also.

26. Perusal of the order passed by the learned Single

Judge of the High Court would itself reveal that the learned

CJM has not even cared to pass a formal order of issuance

of process. It will be relevant to refer to the following part of

the judgment and order of the learned Single Judge of the

High Court:

“….Though, it is true that on the certified

copy produced by the petitioners there is

no such formal order but copy of

Roznama (daily notings of the proceeding)

shows that such order was made on 30

32009. The Roznama dated 3032009

reads as follows :

(i) Complaint filed by Vilas Vishwanath

Dusane.

(ii) Copy of list of documents containing

44 document.

Order was made on Exhibit 1 (of issue

process). Take entry in register of

criminal cases and issue summons

against accused. List the matter for

appearance of accused on 1862009.

This record is sufficient to infer that the

order of issue process was made and

after that summons were issued against

accused to ask them to appear in the

Court.”

27. It could thus clearly be seen that the learned Single

Judge of the High Court held that though there was no

formal order of issuance of process, the record was

sufficient to infer that the order of issue process was made.

28. The order of issuance of process is not an empty

formality. The Magistrate is required to apply his mind as

to whether sufficient ground for proceeding exists in the

case or not. The formation of such an opinion is required to

be stated in the order itself. The order is liable to be set

aside if no reasons are given therein while coming to the

conclusion that there is a prima facie case against the

accused. No doubt, that the order need not contain detailed

reasons. A reference in this respect could be made to the

judgment of this Court in the case of Sunil Bharti Mittal

vs. Central Bureau of Investigation9

, which reads thus:

“51. On the other hand, Section 204 of

the Code deals with the issue of process,

if in the opinion of the Magistrate taking

cognizance of an offence, there is

sufficient ground for proceeding. This

section relates to commencement of a

criminal proceeding. If the Magistrate

9 (2015) 4 SCC 609

taking cognizance of a case (it may be the

Magistrate receiving the complaint or to

whom it has been transferred under

Section 192), upon a consideration of the

materials before him (i.e. the complaint,

examination of the complainant and his

witnesses, if present, or report of inquiry,

if any), thinks that there is a prima facie

case for proceeding in respect of an

offence, he shall issue process against the

accused.

52. A wide discretion has been given as

to grant or refusal of process and it must

be judicially exercised. A person ought

not to be dragged into court merely

because a complaint has been filed. If a

prima facie case has been made out, the

Magistrate ought to issue process and it

cannot be refused merely because he

thinks that it is unlikely to result in a

conviction.

53. However, the words “sufficient

ground for proceeding” appearing in

Section 204 are of immense importance.

It is these words which amply suggest

that an opinion is to be formed only after

due application of mind that there is

sufficient basis for proceeding against the

said accused and formation of such an

opinion is to be stated in the order itself.

The order is liable to be set aside if no

reason is given therein while coming to

the conclusion that there is prima facie

case against the accused, though the

order need not contain detailed reasons.

A fortiori, the order would be bad in law if

the reason given turns out to be ex facie

incorrect.”

29. A similar view has been taken by this Court in the case

of Ashoke Mal Bafna (supra).

30. In the present case, leaving aside there being no

reasons in support of the order of the issuance of process,

as a matter of fact, it is clear from the order of the learned

Single Judge of the High Court, that there was no such

order passed at all. The learned Single Judge of the High

Court, based on the record, has presumed that there was an

order of issuance of process. We find that such an approach

is unsustainable in law. The appeal therefore deserves to be

allowed.

31. In the result, the appeal is allowed. The impugned

order of issuance of process dated 30th March 2009 passed

by the learned Chief Judicial Magistrate, Beed and the order

passed by the learned Sessions Judge, Beed dated 25th

November 2014 dismissing the Criminal Revision being

Criminal Revision Petition No.115 of 2013 are quashed and

set aside. The complaint against the present appellants is

dismissed. Needless to state that the complaint shall

proceed against rest of the accused in accordance with law.

..............................J.

[B.R. GAVAI]

.............................J.

[ C.T. RAVIKUMAR]

NEW DELHI;

OCTOBER 11, 2022

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

- March 04, 2020

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