Cr.P.C. Accused residing outside the territorial jurisdiction of Magistrate. The Magistrate must adopt Halt and Proceed approach guided by Section 202. Karnataka High Court 26 Feb 2021
M/s. P J Margo Pvt Ltd and another vs State of Karnataka. Criminal Petition 101102 of 2020 decided on 26 February 2021. Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/368609/1/CRL%20PET%20101397-2020-26-02-2021.pdf
Relevant paragraphs: 6. Brief facts are to the effect that the Inspector, Legal Metrology, Gokak Sub- Division, Gokak presented separate private complaints against the petitioners in these petitions before the Principal Civil Judge and JMFC, Gokak alleging violation of the provisions of the Act by them and requesting the Court to take cognizance for the offences mentioned in the private complaints.
7. Briefly put, the thrust of the complaint presented by the Inspector, Legal Metrology, Gokak Sub-Division is that these petitioners through their companies produce/ manufacture various consumer/engineering products and they have put out advertisements in various websites and on browsing the same in the internet, the Inspector, Legal Metrology who will be henceforth referred to as complainant discovered that they were in violation of various provisions of the Act and Legal Metrology (Packaged Commodities) Rules, 2011. When the complaints were presented before the learned JMFC, he perused the same and since the complainant is a public servant, dispensing with the sworn statement, being of the opinion that the contents of the private complaints made out the ingredients of the offences under Sections 31 and 36 of the Act, took cognizance for the said offences and issued summons to the petitioners.
9. The contentions of the learned counsel for the various petitioners is that the orders impugned herein taking cognizance for the offences punishable under Sections 31 and 36 of the Act have been passed in total violation of the procedure established under law and more particularly under Section 202 of Cr. P.C.
10. Elaborating the said submission, it is contended that the learned Court below was having territorial jurisdiction for the Revenue Taluk of Gokak and all the petitioners herein are located/residing in places outside the said jurisdiction viz., Bangalore, Mumbai and various other states and therefore by following the procedure established under Section 202 of Cr. P.C. the issuance of process ought to have been postponed/deferred till after holding inquiry as provided therein. For the said purpose, the learned counsel placed reliance on the decision of the Hon’ ble Supreme Court in Udai Shankar Awasthi v. State of U.P. and others reported in (2013 ) 2 SCC 435 .
11. They also submitted that the companies which are the petitioners herein and the rest of the petitioners who are directors of the same are not liable to be prosecuted for the offences alleged as they have nominated a director under Section 49 (2 ) of the Act, substantially to act as a compliance officer. They further submitted that once such a director is nominated under Section 49 (2) of the Act, the company and rest of the directors of the company cannot be prosecuted unless the conditions enumerated under sub- section 4 of Section 49 were satisfied and there is nothing to indicate from the impugned order that learned JMFC had come to such a conclusion before issuing summons under the impugned orders.
13. I have heard the learned HCGP in detail on the petitions.
14. There cannot be any dispute about the fact that all the petitioners in these petitions are residing outside the jurisdiction of learned JMFC who has passed the impugned orders. The impugned orders, in these cases, are couched more or less in the same manner.
15. Learned JMFC has not applied his judicial mind to the facts of the case, the provisions of law applicable and also the provisions of the Code of Criminal Procedure, 1973. If he had only seen the private complaints, he would have noticed that all the petitioners are residing outside his jurisdiction and therefore, Section 202 of Cr. P.C., became applicable to the present situation. It reads as under:
“202. Postponement of issue of process .- ( 1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 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 inquire into the case himself or 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:
Provided that no such direction for investigation shall be made –
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present ( if any) have been examined on oath under section 200 .
(2) In an inquiry under sub- section ( 1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section ( 1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.”
16. A cursory glance of the complaints would have revealed to the learned judge that the companies and petitioners arraigned as accused in the complaints are located/residing outside his territorial jurisdiction. That would have alerted him to seek guidance from Section 202 of Cr. P. C. which loudly and clearly says that in such an eventuality, the Court should adapt what could be conveniently called as the “ halt and proceed” approach before issuing process. This is a guarantee assured to allthe potential accused in private complaints residing outside the territorial jurisdiction of the summoning Court that before they are called upon to make an arduous trip to the Court to answer the charges, Court has doubly assured itself that they are, in light of materials available before it, liable to answer such charges. The inquiry required to be held by Court at this stage or the investigation to be made by police officer in the alternative, contemplated under Section 202 of Cr.P.C. is towards fulfillment of such guarantee made available to an accused hailing from outside the jurisdiction. Courts should not treat this onerous obligation like a mere ritual or an empty formality. This “halt and proceed” is mandatory and any violation of the same will fetch a “red signal” from Section 202 of Cr. P. C.
17. The Hon’ ble Supreme Court in a similar case in Udai Shankar Awasthi (referred supra), at para No.40 has observed as follows:
“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Code of Criminal Procedure, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Code of Criminal Procedure were 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. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases. [ See also Shivjee Singh v. Nagendra Tiwary ( AIR 2010 SC 2261; and National Bank of Oman v. Barakara Abdul Aziz ( 2013) 2 SCC 488)]”.
18. In view of the above decision of the Hon’ble Supreme Court and in view of the mandatory provisions of Section 202 of Cr.P.C., the orders impugned herein taking cognizance for the offences punishable under Sections 31 and 36 of the Act, passed by the learned JMFC are liable to be set aside.
19.Learned JMFC ought to have borne in mind that taking cognizance for the offences against the accused persons named in the private complaints is a solemn act which will have adverse consequences on the life and liberty of the accused. Therefore, he should have applied his judicial mind to the allegations made, provisions of the Act which are alleged to have been violated and the ingredients of the offences etc., carefully before deciding to take cognizance for the offences. Now in this particular instance, additional care ought to have been bestowed by the learned JMFC in view of the fact that some of the petitioners are companies incorporated under the Indian Companies Act, 1956, and most of the petitioners are directors of the same. In regard to the vicarious liability of the director of companies for the offences alleged against them are concerned, law is very clear [Vide SMS Pharmaceuticals Limited vs. Neeta Bhalla and another reported in (2005 ) 8 SCC 89]. Learned Judge should have adverted his attention to the law laid down by the Hon’ble Supreme Court in the above case. Further Sub-section 2 of Section 49 of the Act enables the companies to authorize a director to act as compliance officer and once such nomination has been done in accordance with law and such nomination is conveyed to the Director or the concerned controller or any legal metrology officer, there is an embargo on prosecuting the Directors of the company for the violation of any of the provisions resulting in commission of offences. If the complainant has got a case that apart from the Director nominated as the compliance officer under Section 49(2) of the Act, any other directors also have committed offences, the complainant is duty bound to satisfy the requirements under Section 49 (4 ) of the Act, by providing necessary information along with the complaint. Learned JMFC has not applied his mind to any of these requirements. Non- application of the judicial mind by the learned JMFC is writ large on the face of the order itself.
