Preliminary Inquiry Is Mandatory Before Issuing Process When Accused Resides Beyond Territorial Jurisdiction Of Magistrate: J&K HC

Post By 24law
February 23, 2025

Pranav B Prem

The High Court of Jammu and Kashmir and Ladakh has ruled that a Magistrate must conduct a preliminary inquiry before issuing process against an accused who resides outside its territorial jurisdiction. Justice Sanjay Dhar delivered the judgment, wherein the court found that the trial Magistrate had failed to undertake the mandatory inquiry under Section 202(1) of the Code of Criminal Procedure (Cr. P.C.). Consequently, the High Court set aside the order and remanded the matter for fresh consideration.

Background of the Case

A complaint was filed by the Drug Control Officer, Anantnag, against the petitioners, M/S Nava Healthcare Pvt. Ltd and M/S Mancare Laboratories Pvt. Ltd, along with their directors and other accused, alleging the manufacturing and marketing of a substandard drug. The complaint stemmed from an inspection at M/S Three Star Medical Agency, during which samples of the drug "Tab Pantolid" were collected and later found to be non-compliant with the standards set under the Drugs and Cosmetics Act, 1940. After obtaining necessary sanctions, a complaint was lodged under Sections 18(a)(1), 18A read with Sections 27(d) and 28 of the Drugs and Cosmetics Act. The trial Magistrate took cognizance and issued process against the petitioners, prompting them to challenge the order before the High Court.

Key Observations of the Court

Mandatory Nature of Preliminary Inquiry

The High Court emphasized that Section 202(1) Cr. P.C. mandates an inquiry or investigation before issuing process when the accused resides beyond the territorial jurisdiction of the Magistrate. The court relied on the Supreme Court’s decision in Vijay Dhanuka v. Najima Mamtaz, (2014) 14 SCC 638, stating: "In the enquiry envisaged under Section 202, the witnesses are examined whereas under Section 200, examination of the complainant only is necessary with the option of examining witnesses, if any. The exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing but an enquiry envisaged under Section 202." The High Court reaffirmed that the requirement of an inquiry under Section 202 is mandatory and non-compliance renders the order unsustainable.

Liability of Directors

The court also addressed the issue of directors' personal liability. It observed:"It is true that Director of a company cannot be roped in a prosecution against the company unless it is specifically pleaded that the said Director is incharge of and responsible for business of the company." However, in the present case, the challenge was made by the companies, not the directors in their personal capacity. The court noted that the liability of the directors was not a subject of consideration.

Reliability of the Test Report

The petitioners contended that the drug test report was unreliable. However, the court rejected this argument, stating that both the Government Analyst and the Central Drugs Laboratory found the drug to be substandard. The court held that: "Prima facie, it cannot be stated that the test report relied upon by the respondent does not conform to Rule 46 of the Rules. In any case, contention of the petitioners in this regard can be decided and determined after the author of the test report is examined and cross-examined during the trial." The court ruled that the reliability of the test report was a matter of trial and not a ground for quashing the complaint.

Magistrate’s Jurisdiction to Take Cognizance

The petitioners argued that under Section 32(2) of the Drugs and Cosmetics Act, only a Sessions Court could try offenses under the Act. However, the High Court clarified that this provision does not bar a Magistrate from taking cognizance. It explained: "What is barred under Section 32(2) of the Act, is trial of the offences under Chapter IV of the Act and not taking of cognizance of such offences. In terms of Section 193 of Cr. P. C, a Sessions Court cannot take cognizance of any offence unless expressly provided for." Thus, the Magistrate was well within its power to take cognizance before committing the case to the Sessions Court.

Court’s Decision

Given the Magistrate’s failure to conduct a preliminary inquiry as required under Section 202(1) Cr. P. C, the High Court ruled that: "In the present case, admittedly, the learned trial Magistrate has not conducted any preliminary enquiry under Section 202(1) of Cr. P. C nor any investigation has been directed in terms of the said provision. Therefore, the impugned order whereby process has been issued against the petitioners is not sustainable in law." The High Court set aside the trial court’s order and remanded the matter for compliance with Section 202(1) Cr. P. C before issuing any process.