What is duty of Magistrate before passing order of issue process against accused who is resident of area beyond his jurisdiction?

 However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure are mandatory in nature and ought to have been complied in this case. Perusal of title of the complaint demonstrates that accused persons were residents of the place which was beyond the jurisdiction of the learned Magistrate. In such circumstances, it was not open for the learned Magistrate to issue process against them without conducting an enquiry or calling upon the concerned police to conduct enquiry. Since the accused were not residing within the jurisdiction of the Court, it was obligatory on the part of the learned Magistrate to postpone issuance of process against those accused till such enquiry is conducted. It is also brought to the notice of the Court that order passed by the learned Magistrate is not reasoned order. Needless to say that order of issuance of process need not be a detailed order however, it should reflect that the learned Magistrate has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back to Trial Court for issuance of process afresh.{Para 6}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 851 OF 2023

Vikram Ambalal Vakil & others Vs The State of Maharashtra 

CORAM : R. M. JOSHI, J.

DATE : 21st AUGUST, 2023.

1. This application is filed under Section 482 of the Code of

Criminal Procedure for quashment of SCC No. 1/2012 pending

before learned Judicial Magistrate First Class, Corporation Court,

Aurangabad.

2. It is the contention of learned counsel for applicants that

applicants No.1 and 2 were partners of M/s Priyal Pharma and

applicant No.3 was working as Manufacturing Chemist and applicant

No. 4 was the Quality Control Chemist in the said frm. It is his

contention that the said partnership firm has been dissolved in the

year 2016. It is alleged that the applicants are not responsible for

conduct of day to day business of the firm and were not incharge of

the business of the firm. There is no dispute made about the fact

that the complainant had purchased sample of Azithromycin Oral

Suspension “Aziros-200” 15 ml. The said sample was sent to the

Government Analyst, Drug Control Laboratory, Maharashtra State,

Aurangabad in Form No. 18 on 29th July, 2011. Its report was

received on 13th September, 2011. In the said report, it was found

that the drug seized was not of standard quality. The said report was

communicated to M/s Priyal Pharma on 1st October, 2011. The

complainant thereafter visited the premises of applicant No. 2 as well

as premises of M/s Priyal Pharma at Ahmedabad for obtaining

information. The necessary information was provided by accused

M/s Priyal Pharma. Learned Trial Court issued process against the

accused by order dated 2nd January, 2012.

3. Learned counsel for applicants further submits that

there is no averment in the complaint about the present applicants

being responsible for day to day affairs of the partnership frm or

were incharge for conduct of business at the time of commission of

offence. He further submits that in the absence of such averment

being made in the complaint, the complaint deserves to be dismissed.

He placed reliance on judgment of Hon’ble Apex Court in the case of

Lalankumar Singh and others Vs. State of Maharashtra, MANU/SC/

1301/2022, judgment of this Court in case of Mahendra Verma and

others vs. State of Maharashtra, MANU/MH/1454/2021. It is his

further submission that the learned Trial Court has not applied its

mind to the facts of the case while issuance of process. It is his

submission that even the learned Trial Court has not signed the said

order. By drawing attention of Court to the addresses of the present

applicants, it is submitted that they are residents of Ahmedabad and

without conducting any enquiry under Section 202 of the Code of

Criminal Procedure, process came to be issued against them which is

not tenable. To support this contention, he placed reliance on

judgment of this Court in the case of M. R. Wani & another vs. State

of Maharashtra in Criminal Writ Petition No. 965/2021.

4. Learned APP supported the impugned order and opposed

the application for quashment. He submits that when notice was

issued to M/s Priyal Pharma for supply of documents, the applicants

did not make the documents available. Learned counsel for the

applicants opposed this contention by drawing attention of the Court

to the reply dated 11th October, 2021 given to the Drugs Inspector by

M/s Priyal Pharma.

5. As far as quashment of proceeding is concerned,

reference can be made to the judgment of the Hon’ble Apex Court in

case of State of Haryana and others vs. Bhajan Lal and others, AIR

1992 Supreme Court Cases 335 wherein scope of the powers of High

Court under Section 482 of Code of Criminal Procedure or Article

226 of the Constitution of India, to quash proceeding is considered in

detail. It is held therein that High Court should not embark upon

inquiry into merits and demerits of the allegations. However,

quashment may be permissible in following cases :-

(1) Where the allegations made in the first

information report or the complaint, even if they are

taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a

case against the accused.

(2) Where the allegations in the first information

report and other materials, if any, accompanying the

FIR do not disclose a cognizable offence, justifying an

investigation by police officers under Section 156(1) of

the Code except under an order of a Magistrate within

the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in

support of the same do not disclose the commission of

any offence and make out a case against the accused.

(4) x x x

(5) x x x

(6) x x x

(7) x x x

Thus, law in this regard is fairly settled to say that if the

complaint on the face of it fails to make out any offence, quashment

thereof is permissible. The Court is not expected to sift and weigh

evidence at this stage. In the instant case, though it is sought to be

contended that as contemplated by Section 34 of Drugs and

Cosmetics Act, there is no averment in the complaint about the

present applicants being incharge and responsible for conduct of

business of the company, prima facie perusal of the complaint shows

that accused No. 3 and 5 were present at the time of visit of the

Drugs Inspector in the premises of accused M/s Priyal Pharma on

11th October, 2011. Instant case is not the one wherein there is

absolutely no averment in the complaint with regard to accused No. 3

and 4 being responsible for the affairs of the partnership firm. Apart

from this, perusal of the application fled before this Court clearly

shows that applicants No. 1 and 2 were partners of M/s Priyal

Pharma and applicant No. 3 was working as Manufacturing Chemist

and applicant No. 4 was working as Quality Control Chemist in the

said firm. These averments in the present application are more than

sufficient to show that the present applicants were concerned with

the business and activities of manufacturing drugs of M/s Priyal

Pharma. Perusal of judgment in the case of Lalankumar (supra)

clearly shows that there was absolutely no other averment in the

complaint except stating the fact that the accused is director of the

company. In view of the said fact, it was held by the Hon’ble Apex

Court that considering the provisions of Section 34 of the Drugs and

Cosmetics Act, the vicarious liability cannot be fastened upon the

accused on the basis of such bald statement. In respectful view of

this Court, since there is pleading in the complaint about presence of

the accused at unit of company and as there is no denial of the fact

that they were not responsible for the affairs of the company as

stated in the present application, in view of this Court, the applicants

are not entitled to take any benefit of the said judgment. Prima facie

perusal of complaint does not show that no offence is made out

against accused under provisions of the Act. Hence, this is not a ft

case to quash proceedings.

6. However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure

are mandatory in nature and ought to have been complied in this

case. Perusal of title of the complaint demonstrates that accused

persons were residents of the place which was beyond the

jurisdiction of the learned Magistrate. In such circumstances, it was

not open for the learned Magistrate to issue process against them

without conducting an enquiry or calling upon the concerned police

to conduct enquiry. Since the accused were not residing within the

jurisdiction of the Court, it was obligatory on the part of the learned

Magistrate to postpone issuance of process against those accused till

such enquiry is conducted. It is also brought to the notice of the

Court that order passed by the learned Magistrate is not reasoned

order. Needless to say that order of issuance of process need not be a

detailed order however, it should reflect that the learned Magistrate

has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back

to Trial Court for issuance of process afresh.

7. Hence, by quashing order of issuance of process, matter

deserves to be remanded to the concerned Magistrate for compliance

of Section 202 of the Code of Criminal Procedure and to pass order of

issuance of process indicating application of mind. Hence, Order

dated 2nd January, 2012, passed by the learned Magistrate issuing

process against the applicants is hereby set aside. The learned

Magistrate is directed to comply with the mandatory provisions of

Section 202 of the Code of Criminal Procedure before issuance of

process and to pass order in accordance with law. Application is

disposed of in aforesaid terms.

( R. M. JOSHI)

Judge

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