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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