D.K. Jhaver Vs. State of Punjab and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 6. for facility of reference, however, the relevant portion of section 33 of the insecticides act, 1968, is reproduced hereunder :33. offences by companies--(1) whenever 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, or 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. the complaint was filed before the magistrate against the manager, the company as well as the directors ,of the company. 12. before parting with the judgment, i would, however, make it clear that the mere fact that the proceedings have been quashed against the petitioner, will not prevent the court from exercising its discretion if itis fully satisfied that a case for faking cognizance against him has been made out on the additional evidence led before it.harphul singh brar, j. 1. this is a petition under section 482 of the code of criminal procedure, 1973, read with article 227 of the constitution of india, for quashing complaint annexed as annexure p-1 with this petition, under sections 3(k)(i), 17, 18, 29 and 33 of the insecticides act, 1968, read with rule 27(5) of the insecticides rules, 1971, and for quashing consequent proceedings arising therefrom.2. briefly stated, the facts giving rise to this petition are that the petitioner is a director of a firm. tropical agro systems pvt. ltd., madras, who is a manufacturing concern and is manufacturing monocrotophos 36 per cent. vipan kumar sanjay kumar, new grain market, faridkot, is a licensee for the purpose of selling, stocking, exhibiting insecticides and the said firm has obtained licence for that purpose which was issued by the chief agricultural officer, faridkot. tropical agro systems pvt. ltd. has also obtained a licence and is authorised to manufacture monocrotophos. in the licence issued to the said firm, the manufacturer's name is added, authorising him to sell the product being manufactured by tropical agro systems pvt. ltd.3. a sample of monocrotophos 36 per cent. was obtained by the insecticides inspector, faridkot, on july 24, 1990, from the shop of vipan kumar sanjay kumar, faridkot. after analysis, the active ingredient contents were found to the extent of 45.10 per cent. instead of 36 per cent. the sample did not conform to the isi specifications in respect of percentage active ingredient contents.4. the insecticides inspector, faridkot, filed a complaint under sections 3(k)(i), 17, 18, 29 and 33 of the insecticides act, 1968, read with rule 27(5) of the insecticides rules, 1971, in the court of chief judicial magistrate, faridkot, against the dealer, distributor and manufacturer including the petitioner being a director of the manufacturing concern.5. learned counsel for the petitioner states that there is no averment whatsoever against the petitioner as to how he was responsible for the misbranding of the product. he has not been described in the complaint as a person in charge of the business of the manufacturing concern. though , the petitioner was a director of the manufacturing concern, tropical agro systems pvt. ltd., madras, yet in terms of section 33 of the insecticides act, it had to be asserted in the complaint qua him that the offence had been committed with his consent or connivance of, or is attributable toany neglect on his part. there is no averment, according to counsel, in the complaint that the petitioner being a director was in charge of, or was responsible to, the company for the conduct of the business of the company. in view of this, learned counsel states that no case is made out against the petitioner and the complaint, the continuation of which is an abuse of the process of the court, is liable to be quashed qua him. he has cited municipal corporation of delhi v. ram kishan rohtagi, air 1983 sc 67, in order to substantiate his argument.6. for facility of reference, however, the relevant portion of section 33 of the insecticides act, 1968, is reproduced hereunder :'33. offences by companies--(1) whenever 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, or 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.'7. the only point around which the controversy centres is, whether or not on the allegations made in the complaint the petitioner, viz., the director of the company committed any offence. the main clause of the complaint which is the subject-matter of dispute may be extracted, thus :'by selling these misbranded insecticides, the dealer and distributor have violation section 3(k)(i), 18 and 29 of the insecticides act, 1968, while the manufacturer has violated sections 3(k)(i), 17, 18, 19 and 33 of the act. the persons whose names are mentioned in the complaint are responsible for this violation.'8. the name of the petitioner is mentioned in the heading of the complaint as sh. d.k. jhaver, director, tropical agro systems pvt. ltd., 118, broadway, madras 600 108.9. it is clear from the above that it is nowhere stated in the complaint that the petitioner who was a director of the company, was in charge ofor was responsible to the company for the conduct of its business at the time the offence was committed. neither there is any evidence nor any other material to show apart from the presumption drawn by the complainant that there is any act committed by the director from which a reasonable inference can be drawn that he could also be vicariously liable. ram kishan rohtagi's case, air 1983 sc 67, squarely covers the case of the petitioner. that was a case under the prevention of food adulteration act. the government food inspector, municipal corporation of delhi, visited the premises where madan lal had kept for sale 'morton toffees'. the inspector after purchasing the sample of the article sent it to the public analyst who opined that the said sample did not conform to the standards prescribed for toffees. the toffees were manufactured by upper ganges sugar mills. respondent no. 1, ram kishan rohtagi, was the manager of the company, and respondents nos. 2 to 5 were the directors of the company, including the company also. the complaint was filed before the magistrate against the manager, the company as well as the directors ,of the company. their lordships of the supreme court held in that case as under (page 70 ) :'so far as the directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the directors from which a reasonable inference can be drawn that they could also be vicariously liable. in these circumstances, therefore, we find ourselves in complete agreement with the argument of the high court that no case against the directors (accused nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.'10. in the case in hand also, no allegation has been made in the complaint in terms of section 33 of the insecticides act, 1968, qua the petitioner that the offence had been committed with his consent, or connivance, or was attributable to any neglect on the part of the petitioner. there is no averment in the complaint that the petitioner being a director was in charge of, or was responsible for the conduct of the business of the company.11. in view of my discussion above, i quash the complaint, annexure p-1 and consequent proceedings, if any, qua the petitioner only.12. before parting with the judgment, i would, however, make it clear that the mere fact that the proceedings have been quashed against the petitioner, will not prevent the court from exercising its discretion if itis fully satisfied that a case for faking cognizance against him has been made out on the additional evidence led before it.13. with these observations, this petition is allowed to the extent, indicated above.14. a copy of this order be also sent to the trial court.