Draft amendment granted. Learned advocate Ms. Manisha Narsinghani is directed to carry out the amendment.
2. Learned Sr. Counsel Shri Percy Kavina appearing with learned advocate Ms. Narsinghani has referred to the papers and has prayed that in spite of the order passed by this court dated 12.6.2012, the Court of learned Judicial Magistrate, Budgam, Jammu & Kashmir, has passed an order which has been produced with the additional affidavit. Learned Sr. Counsel Shri Kavina has referred to the order passed by the Court of Judicial Magistrate, Budgam, J&K dated 20.7.2012 at Annexure R-I and thereafter the order passed on HC-NIC Page 1 of 8 Created On Thu Dec 08 00:54:03 IST 2016 SCR.A/1713/2012 2/8 ORDER 29.9.2012 produced at Annexure R-II with the additional affidavit.
3. Learned Sr. Counsel Shri Percy Kavina has submitted that the order of this Court has also been specifically referred and he pointedly emphasized that it has also been recored by the Court of Judicial Magistrate, Budgam, J&K that the order has been passed by the High Court of Gujarat and the presence of M.D., if he is represented by a lawyer, has been ordered to be dispensed with, and according to the order passed by the Court of Judicial Magistrate, Budgam, J&K dated 20.7.2012, the process issued against the accused has been suspended.
4. However, as stated in detail in the additional affidavit, two applications have been given by the lawyer for accused No.1, who is the Managing Director of the present petitioner company, stating that the two applications have been given, one for recalling the process issued under sec. 352(2) of CrPC and another application has been given for discharge of the M.D. from the complaint filed by respondent No.2 complainant.
5. Learned Sr. Counsel Shri Percy Kavina has also referred to the additional affidavit at p. 38 stating that information has been obtained in reply to an RTI application filed by the petitioner under Right to Information Act and the guidelines issued by the Central Drugs Standard Control Organization and under the Drugs and Cosmetics HC-NIC Page 2 of 8 Created On Thu Dec 08 00:54:03 IST 2016 SCR.A/1713/2012 3/8 ORDER (Amendment) Act, 2008 obtained by the petitioner from the website of the said apex body. The said information which has been quoted reads, "Placed alongside is notice served upon by the Hon'ble High Court of Gujarat at Ahmedabad for appearance in person or by Advocate on 25th June 2012.
The date is already over. We may if approved wait for further action by the Hon'ble Court."
07.07.2012 "Seek opinion from DAG"
6. Thus, it would be clear that though respondent No.2 is served, may be later on, but the service is effected, and as it transpires from the record which has been referred to by learned Sr. Counsel Shri Percy Kavina, even the Court of Judicial Magistrate, Budgam, J&K has taken note of the order of this Hon'ble Court and has in fact suspended the process issued.
7. As could be seen from the facts, the issue involved in the matter is Complaint Case No. 39 J of 2010 before the Chief Judicial Magistrate, Budgam, J&K with regard to the provisions of the Drugs & Cosmetics Act, 1940. Specific contention has been raised that unless the company is joined, the M.D. cannot be held liable and, admittedly, the company has not been joined in the said complaint.
8. A reference has been made to the judgment of the Hon'ble Apex Court in the case of Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., reported in (2012) 5 SCC 661. Though this judgment is with regard to the proceedings arising under sec. 138 of the Negotiable Instruments Act, the concept of vicarious liability has been discussed by the Hon'ble Apex Court referring to other provisions and judgments like there is a reference to the provisions of the Customs Act as well as other statutes. The Hon'ble Apex Court also has referred to and discussed the principle of vicarious liability in criminal jurisprudence and it has been quoted referring to Halsbury's Laws of England, Vol. 11(1), in Para 35, "it has been laid down that in general, a corporation is in the same position in relation to criminal liability as a natural person and may be convicted of common law and statutory offences including those requiring mens rea." It has also been observed that in H.L. Bolton (Engg.) Co. Ltd. v. T.J. Graham & Sons Ltd. [(1956) 3 All ER 624 (CA)], Lord Denning, while dealing with the liability of a company, in his inimitable style, has expressed that:
"..... A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are Directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such."
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9. Therefore, without any further elaboration, in view of the contentions raised in the present petition before the court specifically pointing out that the part of cause of action which can be said to have arisen within the jurisdiction of this Court, and applying the principles and observations of the Hon'ble Apex Court in the case of Navinchandra N. Majithia v. State of Maharashtra and ors., reported in (2000) 7 SCC 640, this Court has been examining the contentions raised. It is in this background the order came to be passed that if accused No.1 who is the Managing Director of the petitioner company is represented by a lawyer, he may be exempted from personal appearance in the proceedings before the Court of Judicial Magistrate, Budgam, J&K, till this matter is decided in accordance with law. Further, the same contentions could be raised before the Court of Judicial Magistrate, Budgam, J&K, and in fact have been raised, as stated in the affidavit, and also recorded in the order passed by the Judicial Magistrate, Budgam, J&K. It is in these circumstances the aspect of territorial jurisdiction will have to be examined, and when that issue is pending before this High Court, the aforesaid order for a limited period granting exemption has been passed which should have been respected.
10. The Hon'ble Apex Court in the aforesaid judgment in the case Navinchandra N. Majithia (supra) has made the observations referring to the cause of action in para 36, HC-NIC Page 5 of 8 Created On Thu Dec 08 00:54:03 IST 2016 SCR.A/1713/2012 6/8 ORDER "36. It was the said decision of the Constitution Bench which necessitated Parliament to bring the Fifteenth Amendment to the Constitution by which clause (1-A) was added to Article 226. That clause was subsequently renumbered as clause (2) by the Constitution Forty-Second Amendment. Now clause (2) of Article 226 reads thus :
"226(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
37. The object of the amendment by inserting clause (2) in the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Subba Rao [AIR 1953 SC 210] and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which "the cause of action, whole or in part, arises" and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts." (emphasis supplied)
11. It is in this background, once the order has been passed by this High Court, judicial discipline or comity would require that the Court of Judicial Magistrate, Budgam, J&K, should not have made such a hurry in issuing non-bailable warrant, particularly when the State of J&K has been served as a party respondent under which the authority has initiated the proceedings before the Court of Judicial Magistrate, Budgam, J&K.
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12. Further, as could be seen from the order passed by the Court of Judicial Magistrate, Budgam, J&K produced with the additional affidavit dated 20.7.2012 at Annexure R-I, it clearly refers to the fact that exemption from personal appearance of accused No.1 has been sought by filing the two applications pursuant to the order passed by this Court dated 12.6.2012 in this petition. The order also mentions, "Till the above mentioned two applications are decided, the process issued by this court against accused No.1, i.e. Managing Director R.P.G. Life Sciences Ltd. is hereby suspended."
13. Thereafter, as stated in the affidavit, the matter was adjourned and it has been kept on 29.9.2012. As could be seen from the order of the Court of Judicial Magistrate, Budgam, J&K produced at Annexure R-II with the additional affidavit, dated 3.10.2012, the order which came to be issued for the non-bailable warrant on 29.9.2012 was sought to be cancelled by making an application by the counsel on the same day on 29.9.2012 and it was requested to be recalled and in spite of that, vide order dated 3.10.2012, the application has been rejected on the ground that the counsel or lawyer was not present on 29.9.2012, though the fact remains that he has remained present, and he has given the application to recall the order on the same day and therefore there is no justification for this order by the Court of Judicial Magistrate, Budgam, J&K dated 3.10.2012.
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14. It is in these circumstances, this Court is constrained to pass the order granting further prayer in terms of para 31 (bbb) that pending hearing and final disposal of this petition, the order passed issuing non-bailable warrant by the Court of Judicial Magistrate, Budgam, State of Jammu & Kashmir, vide order dated 29.9.2012 directing the Commissioner of Police, J&K, to execute the warrant stands stayed till further orders.
15. The Registrar General is directed to convey by fax to the Registrar General, J&K High Court, a copy of this order forthwith. Direct service of the order is also permitted.
16. The Special Criminal Application is ordered to be posted for hearing on 5.11.2012.
(Rajesh H. Shukla, J.) (hn) HC-NIC Page 8 of 8 Created On Thu Dec 08 00:54:03 IST 2016