1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR M/s. Hindustan Antibiotics Ltd. & Ors. vs. The State of Rajasthan (S.B. CRIMINAL MISC. PETITION NO. 530/1999) Date of Order: 24/11/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. S.R. Bajwa, Senior Advocate with Mr. V.P. Bishnoi, , for the petitioners. Mr. B.K. Sharma, Public Prosecutor for the State. By the Court: (Oral). This criminal misc. petition has been filed by the accused-petitioners seeking to quash the criminal proceedings which has been registered as case No. 1130/1997 and pending before the Court of learned Chief Judicial Magistrate, Jaipur City, Jaipur. 2. The brief facts of the case are that on 20.02.1993, the Drug Inspector, Jaipur had inspected the Central Medical Stores of S.M.S. Hospital, Jaipur. The Inspector is said to have noticed some suspended particulate matter in one plastic bottle of Injection Dextrose I.P. (5% W/V) (540 Ml.). During the inspection, the store-keeper informed the Drug Inspector that on 24.03.1992, the drug injection had been purchased from Hindustan Antibiotics Ltd., 37, Sanjay Marg, Bopal Bari, Jaipur. On suspecting adulteration in the drug, the Inspector divided the 2 sample of the drug in four parts. One part was handed over to the store-keeper. Second part was forwarded to Analyst, C.I.P.L., Gaziabad. The third part was dispatched to Hindustan Antibiotics Ltd. on 23.02.1993 at its Jaipur office. Thereafter, the Analyst report was received on 31.05.1994 from Gaziabad Laboratory. The report revealed that the sample did not meet with the general requirements of I.P. in respect of test for sterility. Therefore, the drug was also to be treated as sub- standard. The copy of the Analyst report was sent to S.M.S. Hospital, Jaipur on 30.06.1994 and another report was handed over on 01.07.1994 to one Shashi V. Narayan, Computer Operator of M/s. Bhilwara Drug Distributors, who was clearing and selling Agent of M/s. Hindustan Antibiotics Ltd., Jaipur. 3. It is the case of the petitioners that somewhere in the month of December, 1994, the petitioner No. 1 came to know of the result of the chemical analysis made by the Laboratory at Gaziabad. Thereafter, the accused-petitioner No. 1 had, on 15.12.1994, challenged the report by addressing a letter to the Drug Inspector, Jaipur. Further, request was made to the Drug Inspector for sending the fourth part of the sample retained by him to the Central Drug Laboratory, Calcutta, for analysis. In pursuance of the said letter, the Deputy Drug Controller, vide his letter dated 17.12.1994, directed the Inspector to arrange forthwith for sending the sample for retesting to Central Drug Laboratory, Calcutta. The complainant had applied for sanction to prosecute the accused-petitioners which was granted by the 3 Deputy Drug Controller, Jaipur, on 10.06.1996. Thereupon, a regular criminal complaint in the Court of learned chief Judicial Magistrate, Jaipur City, Jaipur had been filed against nine accused persons, including the present petitioner for the offences punishable under the Act of 1940. Thereafter, the learned Magistrate took cognizance and process was issued against all the accused persons. 4. In this misc. petition, after the aforesaid proceedings had been taken place in the criminal case including the passing of the order of cognizance, the petitioners have sought to challenge the criminal proceedings pending in the Court of Chief Judicial Magistrate, Jaipur City, Jaipur. The learned Public Prosecutor has, in this regard, raised objection that the cognizance order have already been passed in this case and that had not been challenged by the accused persons and, as such, the same has become final. Further, he has submitted that as per the principle of law laid down in the case of Sessions Judge, Sawai Madhopur vs. Dashrath Singh, 1996 RCC 592, the said order of cognizance was final in nature and, as such, a revision petition could have been filed by the accused petitioners. He has, therefore, submitted that in view of the order of cognizance, having already been passed, there is no question of now challenging the entire proceedings by invoking the inherent powers of this Court for quashing the criminal proceedings. According to him, the order of cognizance ought to have been challenged in the case, if the petitioners were 4 aggrieved of it. Further, it has been submitted by the learned Public Prosecutor that the application for retesting of the sample had also been rejected and the said rejection had not been challenged by the accused-petitioners and, as such, it does not lie with the petitioners to have now challenged the entire criminal proceedings. 5. I have given my thoughtful consideration to the rival submissions made by the parties and have also taken into consideration the material on record. In this case, the petitioners have sought for quashing of the criminal proceedings pending before the learned Magistrate on various grounds. It is to be noted that before filing of this misc. petition, the learned Magistrate had passed the order of cognizance so as to issue process against the petitioners. Moreover, the petitioners were very much aware about the steps taken by the Drug Inspector even prior to passing of the order of cognizance but they had not, at that time, challenged the proceedings as soon as the complaint was filed before the criminal court. In such view of the matter, the filing of this misc. petition, particularly, after the passing of the order of cognizance, which could have been challenged in the normal course, in my considered opinion, it would not be appropriate for this Court to now quash the entire proceedings which had been initiated in criminal case No. 1130/1997. The petitioners have not approached the Court at the appropriate time and before passing the order of cognizance. In case, the petitioners were aggrieved of the order of 5 cognizance then they could have challenge the same by appropriate proceedings before the appropriate Court which is provided under law. It is settled principle of law that exercise of inherent powers of this Court is only to be in exceptional cases and in rarest of rare cases. Moreover, when specific provision has been given for the procedure to be adopted by a person aggrieved then this Court has its limitation and cannot interfere in such a case where specific remedy under the Code of Criminal Procedure is provided to the person aggrieved. In the case of Raj Kapoor v. State, (1980) 1 SCC 43 : (AIR 1980 SC 258) where Krishna Iyer J. observed as follows (para 10) :- “Even so, a general principle pervades this branch of law when a specific provision is made : easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.” Also in the case of Municipal Corporation of Delhi vs. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, the Hon'ble Supreme Court had observed as under:- “It is well settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly.” The Hon'ble Apex Court has time and again reiterated the scope and limitation of the inherent power of this 6 Court. Only to name one, the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., (2006) 7 SCC 188, held as under:- “7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the 7 court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” “10. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by 8 the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person.” 6. After having considered the facts and circumstances of the case and for the reasons mentioned above, I am of the considered view that the petitioners would be free to raise all their objections before the learned Magistrate, at the appropriate time. It may be made clear that this Court has not gone into or made any observation on the merits of the case and, as such, it will be open for the trial court to decide the contentions raised before it. As the Hon'ble Supreme Court has made it clear in the case of Laxminarayan & Ors. vs. North East Securities Ltd. & Ors., (2004) 13 SCC 447, that rejection of a misc. petition does not take away the right of the accused to place materials at the time when the question of framing charge is taken up to show that the materials do not justify the framing of charge. The Hon'ble Court has observed as under:- 9 “By the impugned judgment a prayer made in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short “CrPC”) was rejected. On going through the orders of the High Court we find no infirmity in the conclusions arrived at. It is pointed out by the learned counsel for the appellants that in a connected matter the Court while considering whether charge is to be framed, discharged accused persons, the appellants and that too in a case which involved same parties. Mere dismissal of the application under Section 482 Cr.P.C. does not take away the right of an accused to place materials at the time when the question of framing of charge is taken up to show that the materials do not justify framing of charge. It shall be open to the appellants to place such materials as are legally permissible to be placed before the court when the question of framing charge is taken up by the court concerned. We express no opinion upon the aspect. The appeal is accordingly disposed of”. 7. In view of the aforesaid reasons, I am of the view that this criminal misc. petition does not have merit. However, it would be open to the petitioners to raise all their objections before the learned trial court, at the appropriate time by placement of relevant documents, if found necessary. As this matter relates to the year 1997, I deem it just and proper to direct the parties to appear before the trial court on 15.12.2008 and the trial court is to proceed further expeditiously. The record of the trial court shall be sent forthwith. With the aforesaid directions, this criminal misc. petition stands disposed of. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A.s-3