There Is No Exception To Section 202 CrPC; Mandatory Even When Govt Is Complainant: Jharkhand High Court

The Jharkhand High Court has held that a Magistrate is mandatorily required to postpone the issue of process before taking cognisance of a matter when the accused persons are situated in an area beyond its territorial jurisdiction, even when the government is the complainant.

“It is worth considering that there is no exception to the section 202 Cr.P.C, and in that view of the matter, even in the Government complaint case, section 202 Cr.P.C is mandatory and it is admitted that the petitioners are stationed at Delhi and seeing that the learned magistrate was required to follow the mandatory provision of section 202 Cr.PC which has been amended vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned,” Justice Sanjay Kumar Dwivedi said.

The court passed the ruling on a petition seeking quashing of the criminal proceeding under Drugs and Cosmetics Act, including order taking cognizance dated 15.07.2013 pending in the court of Chief Judicial Magistrate, Deoghar.

The allegation in the complaint against the petitioners was that they were using Ciprofloxacin Hydrochloride, a potent antibacterial agent which is categorized under schedule-H of the Drugs and Cosmetics Rules, 1945, and selling it as a ‘nutritional supplement’ without obtaining any drug manufacturing license. The allegation was that the manufacturer by claiming ciprofloxacin hydrochloride as a nutritional supplement has tried to misguide and hamper the investigation process. The manufacturer distributed and sold the drug without obtaining the drug manufacturing license which violates section 18(c) and is punishable under section 27(b), it was alleged.

Advocate Pandey Neeraj Rai, appearing on behalf of the petitioners, argued that cognisance was taken by the Magistrate on the same day when the complaint was filed. He further submitted that the petitioners are residents of Delhi, despite that cognisance was taken without following the mandatory provision under section 202 Cr.P.C. He further argued that the petitioners are the directors of the company and there is no allegation that they are looking into the day to day affairs of the company.

Advocate Kumari Rashmi, appearing on behalf of the State argued that irregularity has been found and that is why the court has taken cognizance and there is no illegality in the cognizance order.

The bench observed that there is no averment to the effect that these petitioners are looking into the day to day affairs of the company.

While referring to section 34 of the Drugs and Cosmetics Act, 1940, the court observed, “looking at the above provision it is crystal clear that the person who is looking into the day to day affairs of the company and was responsible at the time of offence can only be prosecuted and in that view of the matter in absence of any averment to that effect vicarious liability upon the petitioners are not liable to be fastened upon them as there is no such averment in the complaint petition.”

While quashing the entire criminal proceeding including the order taking cognisance by the court of Chief Judicial Magistrate, Deoghar, the bench further noted that, “So far the record further suggests that in absence of any enquiry under section 202 Cr.P.C the learned court has taken cognizance.”

Case Title: K.N. Shastri and Ors. vs. The State of Jharkhand, through Inspector of Drugs, Deoghar

Citation: 2023 LiveLaw (Jha) 15

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