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1993 DIGILAW 5 (MP)

Narendar Kumar v. State of M. P.

1993-01-05

A.R.TIWARI

body1993
JUDGMENT This petition, filed under section 482 of the Code of Criminal Procedure, is directed against the registration and cognizance of the case against the applicants as partners of the partnership firm M/s Prem Pharmaceuticals, Indore by the Chief Judicial Magistrare, Indore, in Criminal case No. 4391/86. Briefly stated the facts of the case are that the applicants claimed to be the partners of the partnership firm bearing the aforesaid name. This firm carried on the business of manufacturing drugs at Palda, Indore. The applicants submitted that they do not participate in the manufacturing of the drugs and are not conversant with the niceties and the activities associated with this business. According to them, this is done by the technical staff which should have at least one person holding the qualification as prescribed under the Rule 76 of the Drugs and Cosmetics Rules, 1945. According to the applicants, the entire work was done under the guidance and active supervision of such a person that it is only this person who is responsible for the lapses, if any. The Drug Inspector has launched the case even against the present applicants on the linchpin that the applicants are the partners of the aforesaid firm. The case was registered and the cognizance was taken. Aggrieved by this, the applicants have filed the aforesaid petition. I have heard Miss Rashmika Vaidya, learned counsel for the applicants and Shri G. Desai learned Dy. Govt. Advocate for the State. It is not disputed before me that no such prayer was made before the Trial Court and as such the Trial Court had no occasion to consider the objection raised in the petition here. It cannot be disputed that the order issuing the process is of interminature and is liable to be recalled or dropped by the Magistrate concerned once reasonable grounds are shown by the persons against whom such process has been issued. In K. M. Methew v. State of Kerala [1992 (1) MPWN 30] the Apex Court has laid down as under: "It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his Judicial discretion. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his Judicial discretion. No specific provision is required for the Magistrate to drop the proceeding or recind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it docs not disclose any offence against the accused." The non-applicant docs not dispute the legal position that the application can be filed by the applicants before the Court below. In the circumstances, the aforesaid petition is allowed with the direction that the applicants shall beat liberty to file an appropriate application in the Court below assailing the registration of the case and the cognizance taken and in the event of such an application being filed the Trial Court shall consider and decide the same in accordance with law. The applicants may also move an application for exemption from personal appearance in the Court below and for permission of being represented through duly appointed counsel in the trial Court. On such an application being filed, it shall be considered sympathetically on its own merits till decision of such as application, the trial Court shall not insist on personal appearance of the applicants. The petition thus, stands allowed in terms indicated above. The parties are directed to appear before the trial Court on 5.2.1993 and the Registry is directed to sent back the records of the Courts below immediately so as to reach the trial Court well before the date fixed for appearance of the parties as above. 1992 (I) MPWN 30 (SC) followed.