Allowed

Sri Satyabrata Dey v. the State of Bihar and Ors.

Patna HC18 Nov 2014CR. MISC./44730/2011

Case brief

AI extract

What is this about?

In this criminal miscellaneous petition, the Patna High Court quashed an order of the Judicial Magistrate requiring the petitioner to furnish a company agreement before any process was issued against him. The Court held that the statutory scheme does not permit an accused to participate in Section 202 enquiry prior to being summoned.

What did the court decide?

The order dated 18.10.2011 directing the petitioner to furnish a copy of the agreement was set aside. The application was allowed.

Sri Satyabrata Dey Vs the State of Bihar and Ors. — Civil Procedure and Limitation | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44730 of 2011 ====================================================== Sri Satyabrata Dey, Son of Late Suresh Chandra Dey, Director of M/S. Sreeleathers Pvt. Ltd., having its office at 6, Tottee Lane, Kolkata - 700016. .... .... Petitioner/s Versus 1. The State of Bihar 2. Sri Randhir Kumar Singh, Son of Late Dilip Kumar Singh, Proprietor of M/S. Shai Leather, of MIG - 89, Housing Board, Hanuman Nagar, Police Station - Patrakar Nagar and Town and District - Patna .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Rana Pratap Singh, Sr. Advocate, Mr. Utsav Kumar, Mr. Manish Kumar 2 & Mr. Avinash Kumar, Advocates. For the Opposite Party no.1: Mr. Jharkhandi Upadhyay, A.P.P. For the Opposite Party no.2: Mr. S.K. Bharti, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL ORDER

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11 18-11-2014 Heard Mr. Rana Pratap Singh, learned Senior Advocate for the petitioner, and Mr. S.K. Bharti, learned advocate for the Opposite Party no. 2. The State is being represented by Mr. Jharkhandi Upadhyay, A.P.P.

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The petitioner, who is the Proprietor of M/s Sreeleathers Private Limited, has put up a challenge to the order dated 18.10.2011 passed in Complaint Case No. 974C/2011 whereby the learned Judicial Magistrate 1^st Class, Patna has issued

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Patna High Court Cr.Misc. No.44730 of 2011 (11) dt.18-11-2014

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notice to him for the purposes of depositing the agreement between the complainant and the company.

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The slender ground of attack is that before the issuance of process, any person arraigned as an accused does not become an accused and he remains a complete outsider. No notice could have been issued to him for facilitating the case of the complainant to be built up for the purposes of issuance of process.

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Learned counsel for the petitioner submits that during the enquiry under Section 202 of the Code of Criminal Procedure, the complainant could not furnish the copy of the agreement, which indicated the relationship of the wholeseller and the retailer as between the parties. The petitioner, who was arraigned as an accused in the complaint petition, was issued notice to furnish a copy of the agreement.

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Perused the order.

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The scheme of the Code does not permit the appearance of the accused prior to the issuance of the process. A person against whom a complaint is lodged need not necessarily be precluded from being present, but he cannot be made to participate in the enquiry. The logic behind such a proposition is that since the very question for consideration being whether the accused should be called upon to face the accusation, he is not

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Patna High Court Cr.Misc. No.44730 of 2011 (11) dt.18-11-2014

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under obligation or would not ever be permitted to take part in the proceedings. Necessary corollary to this that the Magistrate holding the enquiry will have no jurisdiction to permit the accused to do so. The Magistrate cannot also compulsorily direct for appearance of a named accused person in the complaint to come forward to participate in the proceedings.

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Considering the fact that the petitioner, without any process having been issued, has been asked to furnish a copy of the agreement on which the complainant relies, such an order of the court below cannot be sustained.

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The order dated 18.10.2011, referred to above, is set aside.

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The court below can proceed with the complaint in accordance with law.

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Application is allowed.

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(Ashutosh Kumar, J)

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Dilip/-

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U T

Sri Satyabrata Dey v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Sri Satyabrata Dey v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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