DSM Pharma Chemicals Venlo B.V. vs Vijay Kumar Garg

Nirmaljit Kaur, J.—The present petition has been filed u/s 482 Code of Criminal Procedure for quashing and setting aside the Complaint Case No. 16009 of 2009 titled as Vijay Kumar Garg v. M/s. DSM Pharmaceutical Products against the Petitioner-Company pending in the Court of Judicial Magistrate 1st Class, Chandigarh u/s 156(3) of Code of Criminal Procedure Further the Petitioner-Company is seeking orders to quash the consequential orders passed in the said complaint including the order summoning the Petitioner-Company dated 21.02.2009 in the complaint.

Learned Senior Counsel for the Petitioner-Mr. R.S. Rai, at the outset, did not argue the case on merits and prayed for liberty to allow him to reserve his right to raise the question on merits at subsequent stage, if so required. However, the complaint and the summoning order was impugned by raising a legal issue. It was contended that the Petitioner-Company is situated at Netherlands. Therefore, the same is outside the jurisdiction of the trial Court. In spite of the same, the Petitioner has been summoned without following the mandate of Section 202(1) of Code of Criminal Procedure Incorporated by the amendment of the year 2006.

Learned Counsel for the Respondent, on the other hand, although did not dispute that no enquiry as envisaged u/s 202(1) of Code of Criminal Procedure was held, however, submitted that the holding of an enquiry u/s 202(1) Code of Criminal Procedure was not mandatory.

Learned Counsel for the parties were heard.

Without touching the issue on merits, the only question, in hand, is as to whether, it was mandatory for the trial Court to conduct an enquiry as per mandate of Section 202(1) Code of Criminal Procedure or not. This issue was dealt in detail by this Court in the case titled as Savera Sidhu v. Harleen Sidhu and Anr. vide Crl. Misc. No. M-7689 of 2009 decided on 14.10.2010 after relying on the judgment rendered in the case of S.K. Bhowmik v. S.K. Arora reported as 2007(4) RCR 650, as well as, the judgment rendered by Hon''ble the Apex Court in the case of Shivjee Singh Vs. Nagendra Tiwary and Others, , wherein, it was held that the enquiry as envisaged u/s 202(1) Cr.P.C was mandatory, in case, the accused is residing outside the jurisdiction of the Magistrate, where the complaint is filed.

The said issue, in the facts of the present case being squarely covered by the judgment rendered by this Court in the case of Savera Sidhu (supra), it was incumbent upon the Magistrate to hold an enquiry as envisaged in the said Section and comply with the mandate of Section 202(1) Cr.P.C.

Section 202(1) Code of Criminal Procedure reads as under:

Postponement of issue of process:

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him u/s 192, may, if he thinks fit (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either enquire into the case himself of direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

The purpose behind this amendment can well be noticed from the draft accompanying the amendment. This is as follows:

Clause 19.-False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

Admittedly, the Petitioner is a resident of Netherland i.e. outside the territorial jurisdiction of the trial Court. A perusal of the impugned summoning order makes it clear that the trial Court has not conducted any enquiry before issuance of the summons as mandate by Section 202(1) Code of Criminal Procedure Therefore, the impugned summoning order is liable to be set aside being squarely covered by the aforesaid judgments.

Accordingly, the summoning order dated 21.02.2009 (P-2) passed by Judicial Magistrate 1st Class, Chandigarh is set aside and the case is remanded back to the Magistrate to pass appropriate orders after complying with the amended provisions of Section 202(1) Cr.P.C.