Srinagar, July 10, KDC: The High Court of Jammu and Kashmir and Ladakh has held that a Magistrate cannot issue process against an accused residing beyond his territorial jurisdiction without first conducting an inquiry under Section 202 of the Code of Criminal Procedure, observing that the requirement is compulsory and not a matter of judicial discretion.
Justice Sanjay Dhar made the observation while allowing a petition filed by Anita Kukreja and another, who had challenged criminal proceedings initiated against them under the Drugs and Cosmetics Act in connection with an alleged substandard drug sample.
The petitioners, who are Managing Directors of M/s Mascot Health Series Pvt. Ltd., questioned the order of the Chief Judicial Magistrate, Srinagar, issuing process against them on a complaint filed by the Drugs Control Officer after a sample of “Wetolol 25 XR Tablets” was declared “not of standard quality” by the Government Analyst.
According to the prosecution, the drug sample was lifted in June 2018 from a pharmaceutical distributor in Srinagar during an inspection by the Drugs Control Department. Subsequent investigation traced the supply chain to M/s Astraazin Pharmaceuticals Pvt. Ltd., which disclosed that the product had been manufactured under a loan licence arrangement at the premises of M/s Mascot Health Series Pvt. Ltd. On the basis of the investigation, the Drugs Control Officer filed a complaint alleging offences under Sections 18(a)(i) and 27(d) of the Drugs and Cosmetics Act against the company and its Managing Directors.
Before the High Court, the petitioners contended that they resided outside the territorial jurisdiction of the Chief Judicial Magistrate, Srinagar, and that the Magistrate had issued process without first conducting the mandatory inquiry required under Section 202 of the Code of Criminal Procedure. They also argued that the complaint did not attribute any specific role to them and challenged the attempt to fasten vicarious liability upon them.
Without examining the merits of the allegations under the Drugs and Cosmetics Act, the High Court confined itself to the question of compliance with Section 202 of the Code. Justice Dhar observed that the statutory scheme clearly distinguishes between accused residing within the territorial jurisdiction of the Magistrate and those residing outside it.
Referring to Section 202, the Court held that while a Magistrate has discretion to conduct an inquiry where the accused resides within his jurisdiction, the provision leaves no such discretion when the accused resides beyond those territorial limits.
The Court observed that “in a case where the accused is residing beyond the territorial limits of a Magistrate, holding of an inquiry under Section 202 Cr.P.C. is mandatory.”
Examining the trial court record, the High Court found that the petitioners admittedly resided outside the territorial jurisdiction of the Chief Judicial Magistrate, Srinagar, yet no inquiry under Section 202 had been conducted before issuing process against them. Justice Dhar held that the failure to comply with the mandatory statutory requirement rendered the order issuing process legally unsustainable.
“Record of the trial court clearly suggests that the learned trial Magistrate has not conducted any inquiry in terms of Section 202 Cr.P.C. before proceeding to issue process against the petitioners. Thus, the impugned order… is not sustainable in law,” the Court observed.
Holding that the mandatory safeguard contained in Section 202 had been ignored, the High Court quashed the order dated December 20, 2020, by which the Chief Judicial Magistrate had taken cognizance and issued process against the petitioners.
The Court remanded the matter to the trial Magistrate with directions to first conduct an inquiry under Section 202 of the Code before deciding afresh whether sufficient grounds exist to proceed against the petitioners. It also directed the Magistrate to consider the other legal objections raised by the petitioners while passing a fresh order. (KDC)
