Jammu & Kashmir High Court
Reserved On: 30.03.2026 vs Sanjeev Kumar Gupta on 2 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:953
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 450/2018
c/w
CRMC No. 690/2017
CRMC No. 720/2017
CRMC No. 44/2018
CRMC No. 64/2018
Reserved on: 30.03.2026
Pronounced on : 02.04.2026
Uploaded on : 02.04.2026
Whether the operative part or full
judgment is pronounced: Full
Amit Kumar Bansal and Ors.
....Petitioners
Through:- Mr. Sunil Sethi, Sr. Advocate with
Mr. Ankesh Chandel, Advocate.
V/s
Sanjeev Kumar Gupta
.....Respondents
Through:- Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Assisting Counsel.
\
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
(JUDGMENT)
01. By virtue of this judgment, the afore-titled five
petitions under Section 482 of CrPC, involving common
question of law are proposed to be disposed of.
02. Background facts:
(i) CRMC No. 450/2018
2.1. Through the medium of the present petition under
Section 482 of CrPC, the petitioners, who have been impleaded
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as accused Nos. 1 to 3, 5 to 8 and 11 in the impugned
complaint, have challenged the complaint registered as File No.
1208/Complaint with date of institution as 10.04.2018, filed
by the respondent against them before the court of learned
Chief Judicial Magistrate, Jammu, alleging commission of
offences under Section 18 (a) (i) read with Section 27 (d) of the
Drug and Cosmetics Act, 1940 (hereinafter to be referred to as
“Act of 1940”). Challenge has also been thrown to order
dated 10.04.2018 passed by the learned Chief Judicial
Magistrate, Jammu by virtue of which process has been issued
against the petitioners and co-accused.
2.2. As per allegations made in the impugned complaint,
sample of drug Ceftriaxone Inj. I.P, Batch No. CFXM 16041,
manufacturing date 05/2016, expiry date: 04/2018,
manufactured by the accused company M/s Theon
Pharmaceuticals Ltd was found to be not of standard quality
upon its analysis by the government analyst. As per the
allegations made in the impugned complaint, petitioner No. 1
is the Managing Director of the accused company whereas,
petitioners No. 2 and 3 are the whole time Directors of the
accused company and as such, are responsible to the accused
company and are also persons incharge of the business of the
accused company. It is further averred in the impugned
complaint that petitioner No. 4, 5, 6 and 7 are the other
Directors of the accused company and they are also
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responsible to the accused company by virtue of their
designation and they are the persons incharge of the business
of the company. On the basis of these allegations, the
petitioners are sought to be prosecuted for having committing
the aforesaid offences.
(ii) CRMC No. 690/2017
2.3 Through the medium of the present petition, the
petitioners have challenged the complaint registered as File No.
31 of 2017 with date of institution as 31.08.2017, filed by the
respondent against them before the court of learned Judicial
Magistrate 1st Class, Kishtwar, alleging commission of offences
under Section 18 (a) (i) read with Section 27 (d) of the Drug
and Cosmetics Act, 1940.
2.4 Petitioner No. 1 happens to be accused No. 2,
petitioner No. 2 happens to be accused No. 3, petitioner No. 3
happens to be accused No. 5, petitioner No. 4 happens to be
accused No. 6, petitioner No. 5 happens to be accused No. 7,
petitioner No. 6 happens to be accused No. 8 and petitioner
No. 7 happens to be accused No. 1 in the impugned complaint.
It is alleged in the impugned complaint that upon analysis of
sample of drug Glimepiride and Metformin Hydrochloride (SR)
Tablets Batch No. GT160179, manufacturing date 02/2016,
expiry date: 01/2018, manufactured by the accused company
M/s Theon Pharmaceuticals Ltd., it was found to be not of
standard quality.
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2.5 According to the complainant, petitioner No. 7
happens to be the Managing Director of the accused company
whereas, petitioners No. 1 and 2 are the Whole Time Directors
of the accused company, petitioners No. 3 and 6 are the
Additional Directors of the accused company whereas,
petitioners No. 4 and 5 are the Directors of the accused
company and in that capacity they have been arraigned as
accused.
(iii) CRMC No. 720/2017
2.6 Through the medium of the present petition, the
petitioners have challenged the complaint registered as File No.
31 of 2017 with date of institution as 31.08.2017, filed by the
respondent against them before the court of learned Judicial
Magistrate 1st Class, Kishtwar, alleging commission of offences
under Section 18 (a) (i) read with Section 27 (d) of the Drug
and Cosmetics Act, 1940.
2.7 Petitioner No. 1 happens to be accused No. 9,
petitioner No. 2 happens to be accused No. 10, petitioner No. 3
happens to be accused No. 4, petitioner No. 4 happens to be
accused No. 12 and petitioner No. 5 happens to be accused No.
11 in the impugned complaint. It is alleged in the impugned
complaint that upon analysis of sample of drug Glimepiride
and Metformin Hydrochloride (SR) Tablets Batch No.
GT160179, manufacturing date 02/2016, expiry date:
01/2018, manufactured by the accused company M/s Theon
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Pharmaceuticals Ltd., it was found to be not of standard
quality.
2.8 As per the impugned complaint, petitioner No. 1
was AGM-Production of the accused company, petitioner No. 2
was Senior Manager (Quality Control) of the accused company,
petitioner No. 3 was Whole Time Director, petitioner No. 4 was
proprietor of accused company whereas petitioner No. 5 is the
accused company. The petitioners have been arraigned as
accused in the aforesaid capacity.
(iv) CRMC No. 44/2018
2.9 Through the medium of the present petition, the
petitioners have challenged the complaint registered as File No.
28/Complaint with date of institution as 09.06.2017, filed by
the respondent against them before the court of learned Chief
Judicial Magistrate, Jammu, alleging commission of offences
under Section 18 (a) (i) read with Section 27 (d) of the Drug
and Cosmetics Act, 1940.
2.10 As per the contents of the impugned complaint,
upon analysis of sample of drug Ceftriaxone Inj. I.P Batch No.
CFXM 16031, manufacturing date 04/2016, expiry date:
03/2018, manufactured by the accused company M/s Theon
Pharmaceuticals Ltd., it was found to be not of standard
quality.
2.11 Petitioners No. 1 to 3 have been impleaded as
accused Nos. 1 to 3, petitioners No. 4 to 10 have been
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impleaded as accused No. 5 to 11 in the impugned complaint.
As per the averments made in the impugned complaint,
petitioner No. 1 happens to be the Managing Director of the
accused company, petitioners No. 2 and 3 happen to be the
Whole Time Director of the accused company, petitioners No. 4
to 7 happen to be the Directors of the accused company,
petitioner No. 8 happens to be the AGM Production Manager,
petitioner No. 9 happens to be the Senior Manager (Quality
Control) whereas petitioner No. 10 happens to be the
manufacturing company. In that capacity, the petitioners have
been arraigned as accused persons.
(V) CRMC No. 64/2018
2.12 Through the medium of the present petition, the
petitioners have challenged the complaint registered as File No.
27/Complaint with date of institution as 09.06.2017, filed by
the respondent against them before the court of learned Chief
Judicial Magistrate, Jammu, alleging commission of offences
under Section 18 (a) (i) read with Section 27 (d) of the Drug
and Cosmetics Act, 1940.
2.13 As per the contents of the impugned complaint,
upon analysis of sample of drug Ceftriaxone Inj. I.P Batch No.
CFXM 116002, manufacturing date 01/2016, expiry date:
12/2017, manufactured by the accused company M/s Theon
Pharmaceuticals Ltd., it was found to be not of standard
quality.
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2.14 Petitioners No. 1 to 3 have been impleaded as
accused Nos. 1 to 3, petitioners No. 4 to 10 have been
impleaded as accused No. 5 to 11 in the impugned complaint.
As per the averments made in the impugned complaint,
petitioner No. 1 happens to the Managing Director of the
accused company, petitioners No. 2 and 3 happen to the
Whole Time Directors of the accused company, petitioners No.
4 to 7 happen to the Directors of the accused company,
petitioner No. 8 happens to the AGM Production Manager,
petitioner No. 9 happens to be the Senior Manager (Quality
Control) whereas petitioner No. 10 happens to the accused
manufacturing company. In that capacity, the petitioners have
been arraigned as accused persons.
03. Grounds of challenge:
3.1 The main ground of challenge that has been raised
by the petitioners in all the aforesaid petitions is that there are
no specific averments made in the impugned complaints
ascribing any role to the petitioners. It has been contended
that the accused company had submitted a declaration with
the competent authority informing it that Sh. Puran Chand
Joshi, Director of the company, is the person responsible to
the company for the conduct of the business of the company
under Section 34 of the Act of 1940, therefore, only the said
person could have been impleaded as an accused in the
impugned complaints and that there being no specific
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allegations in the impugned complaints against the other
accused, as such, prosecution against the said accused is not
sustainable in law.
4. I have heard learned counsel for the parties and
perused record of the case including record of the trial court.
05. Analysis
5.1 All the impugned complaints, which are subject
matter of challenge by way of afore-titled petitions, have been
filed against M/s Theon Pharmaceutical Ltd, which is the
accused company. The samples of drugs, which are subject
matter of the impugned complaints, have been manufactured
by M/s Theon Pharmaceutical Ltd, as such, the said company
happens to be alleged offender. The question that arises for
determination is as to which of its officers/functionaries are to
be arraigned as accused along with the said company for their
prosecution in respect of commission of offences under the Act
of 1940. In this regard, Section 34 of the Act of 1940 is
required to be noticed. It 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 sub-section shall
render any such person liable to any punishment provided inCRMC No. 450/2018 a/w Page 8 of 21
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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.
(2) Notwithstanding anything contained in sub-section (1),
where an offence under this Act has been committed by a
company and it is proved that the offence has been committed
with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager, secretary
or other officer shall also be deemed to be guilty of that offence
and shall be liable to be proceeded against and punished
accordingly.
5.2 From a perusal of the aforesaid provision, it is
manifest that when an offence has been committed by a
company, every person who, at the time when the offence
was committed, was incharge of and was responsible to the
company for the conduct of the business of the company
along with the company is deemed to be guilty of the offence
and shall be liable to be proceeded against. It further
provides that a person responsible to the company has the
option of rebutting the aforesaid presumption if he proves
that the offence was committed without his knowledge or
that he exercised due diligence to prevent commission of the
offence. Thus, the presumption relating to commission of
offence by the company under the Act of 1940 extends to the
person who was incharge and responsible to the company at
the relevant time. However, the presumption is rebuttable
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in nature. Thus, once it is shown that a person has been
nominated by a company to be incharge and responsible to
the company for the conduct of the business, a presumption
that he has committed the offence along with the company
gets triggered against him. Such person has to be arraigned
as an accused in connection with the prosecution relating to
an offence committed by the company.
5.3 So far as other officers of the company, whether
Managing Directors or other functionaries are concerned,
their culpability would depend upon the nature of
allegations relating to their role made in the complaint filed
against the offender company. If there are specific
allegations leveled against any officer or functionary of the
company relating to commission of an offence by the
company, of course the said officer or functionary of the
company is liable to the prosecuted in connection with an
offence committed by the company.
5.4 In my aforesaid view, I am supported by the ratio
laid down by the Supreme Court in the case of M/s
Cheminova India Limited and anr Vs. State of Punjab
and Ors, (2021) 8 SCC 818. Paragraph 9 of the said
judgement is relevant to the context and the same is
reproduced as under:
“9. Section 33 of the Act deals with „offences by companies‟.
A reading of Section 33(1) of the Act, makes it clear thatCRMC No. 450/2018 a/w Page 10 of 21
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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. In the case on hand, it is not in dispute
that on behalf of the 1 st Appellant – Company, 2nd Appellant
– Managing Director has furnished an undertaking dated
22.01.2013, indicating that Shri Madhukar R. Gite, Manager
of the Company, has been nominated in the resolution passed
by the Company on 28.12.2012 to be in charge of and
responsible to the said Company, to maintain the quality of
the pesticides manufactured by the said Company and he
was authorized to exercise all such powers and to take all
such steps, as may be necessary or expedient to prevent the
commission of any offence under the Act. Filing of such
undertaking with the respondent is not disputed. Even, at
Para 5.10 in the counter affidavit filed before this Court, it is
pleaded by the Respondents that by appointing persons
responsible for affairs of the Company, quality control, etc.,
2nd Appellant – Managing Director cannot escape his liability
from offences committed by 1st Appellant – Company. In view
of the specific provision in the Act dealing with the offences by
companies, which fixes the responsibility and the responsible
person of the Company for conduct of its business, by making
bald and vague allegations, 2nd Appellant – Managing
Director cannot be prosecuted on vague allegation that he
being the Managing Director of the 1st Appellant – Company,
is overall responsible person for the conduct of the business of
the Company and of quality control, etc. In the instant case,
the Company has passed a resolution, fixing responsibility of
one of the Managers namely Mr. Madhukar R. Gite by way of
a resolution and the same was furnished to the respondents
by the 2nd Appellant in shape of an undertaking on
22.01.2013. When furnishing of such undertaking fixing the
responsibility of the quality control of the products is not in
dispute, there is no reason or justification for prosecuting theCRMC No. 450/2018 a/w Page 11 of 21
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2nd Appellant – Managing Director, on the vague and spacious
plea that he was the Managing Director of the Company at the
relevant time. A reading of Section 33 of the Act also makes it
clear that only responsible person of the Company, as well as
the Company alone shall be deemed to be guilty of the offence
and shall be liable to be proceeded against. Though, the
Managing Director is overall incharge of the affairs of the
company, whether such officer is to be prosecuted or not,
depends on the facts and circumstances of each case and the
relevant provisions of law. Having regard to specific provision
under Section 33 of the Act, and the undertaking filed in the
present case, respondent cannot prosecute the 2nd Appellant
herein. Thus, we find force in the contention of Mr. Sidharth
Luthra, learned Senior Counsel, that allowing the prosecution
against 2nd Appellant – Managing Director is nothing but,
abuse of the process of law. At the same time, we do not find
any ground at this stage to quash the proceedings against the
1st Appellant – Company.”
5.5. From the aforesaid analysis of legal position, it
becomes clear that merely on the basis of bald allegations
made in the complaint against a functionary or officer of the
company does not make the said officer/functionary
responsible for the conduct of business of the company. The
presumption of being responsible for the conduct of the
business of the company arises only against a person, who
has been nominated by the company as person responsible
to the company for conduct of business under Section 34 of
the Act of 1940. With this legal position in mind, let us now
deal with the individual cases.
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(i) CRMC No.450/2018
5.6 The material on record of the trial court annexed
to the impugned complaint in this case would reveal that the
accused company had informed the respondent that
Sh. Puran Chand Joshi (accused No. 4) is the person
incharge and responsible for manufacturing and analysis of
the offending drug in question and is competent person to
act on behalf of the company as envisaged under Section 34
of the Act of 1940. The petitioners have also placed on
record a copy of communication dated 21.02.2015 issued by
the State Drugs Controller, Controlling-Cum-Licensing
Authority, Baddi, District Solan, H.P whereby it has been
noted that Sh. Puran Chand Joshi, Director of the accused
company has been endorsed as person responsible to the
company for conduct of business of company under Section
34 of the Act of 1940. Thus presumption under section 34
of the Act of 1940 arises against afore-named accused. The
impugned complaint to the extent of accused Puran Chand
Joshi as also to the extent of accused company has to
proceed further.
5.7 So far as the petitioners No. 1 to 7 are concerned,
the issue whether the impugned complaint can proceed
against them would depend upon the nature of allegations
leveled against them in the impugned complaint. If we have
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a look at the averments made in the impugned complaint,
the only allegation against the petitioners No. 1 to 7 is that
petitioner No. 1 is the Managing Director whereas other
petitioners are either Whole Time Directors or Directors of
the accused company. No specific role has been ascribed to
them in connection with commission of the alleged offence.
Merely because the petitioners No. 1 to 7 happen to be the
Managing Director/Directors of the accused company would
not make them liable to prosecution for the alleged offence
unless a specific role is ascribed to them. In the absence of
specific allegations against these petitioners, merely on the
basis of bald assertion, the impugned complaint as against
them cannot proceed further.
(ii) CRMC No. 690/2017
5.8 In this case also, the accused company happens to
M/s Theon Pharmaceuticals Limited. As per the material on
record, Sh. Puran Chand Joshi (accused No. 4) is the person
incharge and responsible for manufacturing and analysis of
the offending drug in question and is competent person to
act on behalf of the company as envisaged under Section 34
of the Act of 1940. The petitioners have placed on record
copy of communication dated 21.02.2015 issued by the
State Drugs Controller, Controlling Cum Licensing Authority
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Baddi, District Solan, H.P whereby it has been noted that
Sh. Puran Chand Joshi, Director of the accused company
has been endorsed as person responsible to the company for
conduct of business of company under Section 34 of the Act
of 1940. Therefore, the impugned complaint to the extent of
accused Puran Chand Joshi as also to the extent of the
accused company has to proceed further.
5.9 Coming to the question whether there are any
specific allegations in the impugned complaint as against
the petitioners, who happen to be Managing
Director/Directors of the accused company, a perusal of the
impugned complaint would reveal that there are no
allegations much less specific allegations made in the
impugned complaint with regard to the role of the petitioners
in the commission of the alleged offence. The impugned
complaint, therefore, as against the petitioners cannot
proceed further.
(iii) CRMC No. 720/2017
5.10 In this case also, the accused company happens
to M/s Theon Pharmaceuticals Limited. As per the material
on record, Sh. Puran Chand Joshi (accused No. 4) is the
person incharge and responsible for manufacturing and
analysis of the offending drug in question and is competent
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person to act on behalf of the company as envisaged under
Section 34 of the Act of 1940. The petitioners have also
placed on record a copy of communication dated 21.02.2015
issued by the State Drugs Controller, Controlling Cum
Licensing Authority, Baddi, District Solan, H.P whereby it
has been noted that Sh. Puran Chand Joshi, Director of the
accused company has been endorsed as person responsible
to the company for conduct of business of company under
Section 34 of the Act of 1940. Therefore, the impugned
complaint to the extent of accused Puran Chand Joshi as
also to the extent of accused company has to proceed
further.
5.11 So far as role of petitioners No. 1, 2 and 4 is
concerned, a perusal of the impugned complaint would
reveal that petitioner No. 1, who has been impleaded as
accused No. 9, is shown to be the AGM-Production
(Tablet/Capsule Section), petitioner No. 2 is shown to be
Senior Manager (Quality Control) of the accused company
whereas, petitioner No. 4 is shown to be the Proprietor of
M/s Theon Pharmaceuticals Ltd, Srinagar. However, there
are no allegations much less specific allegations in the
impugned complaint as against petitioners No. 1, 2 and 4
with regard to their role in the alleged offence. The
impugned complaint is completely silent as to what role the
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afore-named three petitioners have played in the alleged
offence. The complaint to the extent of the petitioners No. 1,
2 and 4, therefore, cannot proceed further.
(iv) CRMC No. 44/2018
5.12 In this case also, the accused company happens
to M/s Theon Pharmaceuticals Limited. As per the material
on record, Sh. Puran Chand Joshi (accused No. 4) is the
person incharge and responsible for manufacturing and
analysis of the offending drug in question and is competent
person to act on behalf of the company as envisaged under
Section 34 of the Act of 1940. The petitioners have also
placed on record a copy of communication dated 21.02.2015
issued by the State Drugs Controller, Controlling Cum
Licensing Authority Baddi, District Solan, H.P whereby it
has been noted that Sh. Puran Chand Joshi, Director of the
accused company has been endorsed as person responsible
to the company for conduct of business of company under
Section 34 of the Act of 1940. Therefore, the impugned
complaint to the extent of accused Puran Chand Joshi as
also to the extent of the accused company has to proceed
further.
5.13 That takes us to the role of other
petitioners/accused. Excepting the allegations that
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petitioners No. 1 to 7 happen to be the Managing
Director/Director of the accused company, there are no
specific allegations against these petitioners ascribing any
role to them with regard to commission of alleged offence.
On the basis of mere bald allegations against these
petitioners, they cannot be arraigned as accused in the
impugned complaint.
5.14 Regarding petitioners No. 8 and 9, it is specifically
alleged in the impugned complaint that they are approved
technical employees of the accused company and are
actively involved in manufacturing and production of the
offending drug. Thus, there are specific allegations against
these two petitioners in the impugned complaint. Therefore,
the impugned complaint as against petitioners No. 8 and 9
as also against petitioner No. 10 has to proceed further.
(v) CRMC No. 64/2018
5.15 In this case also, the accused company happens
to M/s Theon Pharmaceuticals Limited. As per the material
on record, Sh. Puran Chand Joshi (accused No. 4) is the
person incharge and responsible for manufacturing and
analysis of the offending drug in question and is competent
person to act on behalf of the company as envisaged under
Section 34 of the Act of 1940. The petitioners have also
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placed on record a copy of communication dated 21.02.2015
issued by the State Drugs Controller, Controlling Cum
Licensing Authority Baddi, District Solan, H.P whereby it
has been noted that Sh. Puran Chand Joshi, Director of the
accused company has been endorsed as person responsible
to the company for conduct of business of company under
Section 34 of the Act of 1940. Therefore, the impugned
complaint to the extent of accused Puran Chand Joshi as
also to the extent of the accused company has to proceed
further.
5.16 That takes us to the role of other
petitioners/accused. Excepting the allegation that
petitioners No. 1 to 7 happen to the Managing
Director/Director of the accused company, there are no
specific allegation against these petitioners ascribing any
role to them with regard to commission of alleged offence.
On the basis of mere bald allegations against these
petitioners, they cannot be arraigned as accused in the
impugned complaint.
5.17 Regarding petitioners No. 8 and 9, it is specifically
alleged in the impugned complaint that they are approved
technical employees of the accused company and are
actively involved in manufacturing and production of the
offending drug. Thus, there are specific allegations against
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these two petitioners in the impugned complaint. Therefore,
the impugned complaint as against petitioners No. 8 and 9
as also against petitioner No. 10 has to proceed further.
Conclusion:
6. In view of the foregoing discussion, the afore-titled
petitions are disposed of in the following manner:
(i) CRMC No. 450/2018 is partly allowed and the
impugned complaint to the extent of petitioners No.
1 to 7 and the proceedings emanating therefrom as
against the aforesaid petitioners are quashed. The
impugned complaint, however, to the extent of other
accused shall proceed further.
(ii) CRMC No. 690/2017 is partly allowed and the
impugned complaint to the extent of petitioners No.
1 to 7 and the proceedings emanating therefrom as
against the aforesaid petitioners are quashed. The
impugned complaint, however, to the extent of other
accused shall proceed further.
(iii) CRMC No. 720/2017 is partly allowed and the
impugned complaint along with proceedings
emanating therefrom to the extent of petitioners No.
1, 2 and 4 are quashed. The petition to the extent of
other petitioner is dismissed.
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(iv) CRMC No. 44/2018 is partly allowed and the
impugned complaint to the extent of petitioners No.
1 to 7 and the proceedings emanating therefrom as
against the aforesaid petitioners are quashed. The
petition to the extent of petitioners No. 8, 9 and 10 is
dismissed.
(v) CRMC No. 64/2018 is partly allowed and the
impugned complaint to the extent of petitioners No.
1 to 7 and the proceedings emanating therefrom as
against the aforesaid petitioners are quashed. The
petition to the extent of petitioners No. 8, 9 and 10 is
dismissed.
(I)
7. Original record of the trial court be sent back.
(SANJAY DHAR)
JUDGE
JAMMU
02.04.2026
Naresh/Secy.
Whether the judgment is speaking: Yes
Whether the judgment is reportable: Yes
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