Remanded

Dsm Pharma Chemicals Venlo B.V. v. Vijay Kumar Garg

Punjab & Haryana HC26 Oct 2010CRM-M/14270/2009

Case brief

AI extract

What is this about?

In this criminal miscellaneous petition, the High Court of Punjab and Haryana examined the validity of a summoning order issued against a petitioner company situated in the Netherlands. The court held that the trial court failed to conduct a mandatory enquiry under Section 202(1) Cr.P.C. before summoning an accused residing outside its jurisdiction, thus setting aside the order.

What did the court decide?

The summoning order dated 21.02.2009 is set aside, and the case is remanded to the Magistrate to pass appropriate orders after complying with Section 202(1) Cr.P.C.

Dsm Pharma Chemicals Venlo B.V. Vs… — Civil Procedure and Limitation | Punjab & Haryana HC (2010)

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Crl. Misc. No.M-14270 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Crl. Misc. No.M-14270 of 2009 Date of Decision: 26.10.2010

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DSM Pharma Chemicals Venlo B.V. ....Petitioner Company

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Versus

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Vijay Kumar Garg ...Respondent

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CORAM : Hon'ble Ms. Justice Nirmaljit Kaur

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Present:Mr. R.S. Rai, Sr. Advocate with Mr. Neeraj Khanna, Advocate for the petitioner.

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Mr. Akshay Bhan, Advocate for the respondent.

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Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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To be referred to the Reporters or not ?

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Whether the judgment should be reported in the Digest ?

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NIRMALJIT KAUR, J.

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The present petition has been filed under Section 482 Cr.P.C for quashing and setting aside the Complaint Case No.16009 of 2009 titled as Vijay Kumar Garg vs. M/s DSM Pharmaceutical Products against the petitioner-Company pending in the Court of Judicial Magistrate Ist Class, Chandigarh under Section 156(3) of Cr.P.C. Further the petitionerCompany is seeking orders to quash the consequential orders passed in the said complaint including the order summoning the petitioner-Company dated 21.02.2009 in the complaint.

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Learned Senior Counsel for the petitioner-Mr. R.S. Rai, at the outset, did not argue the case on merits and prayed for liberty to allow him to reserve his right to raise the question on merits at subsequent stage, if

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Crl. Misc. No.M-14270 of 2009

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so required. However, the complaint and the summoning order was impugned by raising a legal issue. It was contended that the petitionerCompany is situated at Netherlands. Therefore, the same is outside the jurisdiction of the trial Court. In spite of the same, the petitioner has been summoned without following the mandate of Section 202(1) of Cr.P.C. Incorporated by the amendment of the year 2006.

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Learned counsel for the respondent, on the other hand, although did not dispute that no enquiry as envisaged under Section 202(1) of Cr.P.C was held, however, submitted that the holding of an enquiry under Section 202(1) Cr.P.C was not mandatory.

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Learned counsel for the parties were heard.

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Without touching the issue on merits, the only question, in hand, is as to whether, it was mandatory for the trial Court to conduct an enquiry as per mandate of Section 202(1) Cr.P.C or not. This issue was dealt in detail by this Court in the case titled as Savera Sidhu vs. Harleen Sidhu and another vide Crl. Misc. No.M-7689 of 2009 decided on 14.10.2010 after relying on the judgment rendered in the case of S.K. Bhowmik vs. S.K. Arora reported as 2007(4) RCR (Criminal) 650, as well as, the judgment rendered by Hon'ble the Apex Court in the case of Shivjeet Singh vs. Nagendra Tiwary and others reported as 2010(7) SCC 578, wherein, it was held that the enquiry as envisaged under Section 202(1) Cr.P.C was mandatory, in case, the accused is residing outside the jurisdiction of the Magistrate, where the complaint is filed.

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The said issue, in the facts of the present case being squarely covered by the judgment rendered by this Court in the case of Savera Sidhu (supra), it was incumbent upon the Magistrate to hold an enquiry as envisaged in the said Section and comply with the mandate of Section 202(1) Cr.P.C.

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Crl. Misc. No.M-14270 of 2009

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Section 202(1) Cr.P.C reads as under :-

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“202. Postponement of issue of process :-

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(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 enquire into the case himself of 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.”

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The purpose behind this amendment can well be noticed from

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the draft accompanying the amendment. This is as follows :

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“ Clause 19.-False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”

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Admittedly, the petitioner is a resident of Netherland i.e outside the territorial jurisdiction of the trial Court. A perusal of the impugned summoning order makes it clear that the trial Court has not conducted any enquiry before issuance of the summons as mandate by Section 202(1) Cr.P.C. Therefore, the impugned summoning order is liable to be set aside being squarely covered by the aforesaid judgments.

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Crl. Misc. No.M-14270 of 2009

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Accordingly, the summoning order dated 21.02.2009 (P-2) passed by Judicial Magistrate Ist Class, Chandigarh is set aside and the case is remanded back to the Magistrate to pass appropriate orders after complying with the amended provisions of Section 202(1) Cr.P.C.

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26.10.2010 gurpreet

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(NIRMALJIT KAUR) JUDGE

Dsm Pharma Chemicals Venlo B.V. v. Vijay Kumar Garg

Case brief

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Dsm Pharma Chemicals Venlo B.V. v. Vijay Kumar Garg

Case brief

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