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2006 DIGILAW 1773 (PNJ)

Sajeev Kumar Sharma v. State of Punjab

2006-04-26

RAJIVE BHALLA

body2006
JUDGMENT Rajive Bhalla, J. - Prayer in this petition is for quashing of complaint dated 31.8.1994 Annexure P-1, the summoning order dated 31.8.1994 Annexure P-2 and all consequent proceedings arising therefrom. The petitioner is sought to be prosecuted for stocking and dispensing allopathic drugs in violation of Sections 18(c) and 18(a) read with Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940. 2. Counsel for the petitioner contends that the petitioner holds a valid registration certificate, issued by the State Council of Ayurvedic and Unani Medicines, Bihar, a council duly registered under the Bihar Development of Ayurvedic & Unani System of Medicines Act, 1951, bearing Registration No. 104360. Being a registered medical practitioner, in accordance with the provisions of the Indian Medical Central Council Act, 1970, he would fall within the definition of registered medical practitioner as defined in Section 2(ee)(ii) of the Drugs and Cosmetics Act, 1940, and would therefore, be entitled in law to dispense and stock allopathic medicines. Reliance is placed upon a judgment of Honble Supreme Court, AIR 1999 Supreme Court 468. 3. Another contention pressed into service by the counsel for the petitioner is that the summoning order is non-speaking. It is argued that an order summoning an accused is a judicial order and must not only disclose reasons but also the process of reasoning that led the Court to pass such an order. It is contended that the mere fact that a complaint has been filed by a Govt. official, cannot be reason enough, to pass an order of summoning, without assigning any reason. 4. Counsel for the State of Punjab on the other hand contends that the aforementioned judgment as also the contentions raised by the counsel for the petitioner, that the petitioner is a registered medical practitioner on a State medical register, is the petitioners defence. The correctness of the certificate would be adjudicated during the trial and therefore the present petition be dismissed. He also contends that as the complaint has been filed by an official of the State Government, duly authorized to file such a complaint under the Drugs and Cosmetics Act, 1940, the learned trial Court was not required to assign any reason while summoning the petitioner. 5. I have heard counsel for the parties and perused the paper book. 6. He also contends that as the complaint has been filed by an official of the State Government, duly authorized to file such a complaint under the Drugs and Cosmetics Act, 1940, the learned trial Court was not required to assign any reason while summoning the petitioner. 5. I have heard counsel for the parties and perused the paper book. 6. Although various points have been urged by the counsel for the petitioner, in support of the plea for quashing, the impugned order can be accepted on the short score that it has been passed in total disregard to the provisions of Sections 200 and 204 of the Criminal Procedure Code The order summoning the petitioner reads as follows : "Present : Complainant in person. Be registered. Accused be summoned for 24.10.1994." 7. A perusal of the above order reveals that while summoning the petitioners no reason has been assigned. An order, summoning an accused is a judicial order, to be passed upon a judicial appraisal of the complaint and the statements, if any, made by the complainant and his witnesses. Sections 200 and 204 of the Criminal Procedure Code read as follows : "Section 200 : Examination of complainant. - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 204 - Issue of Process - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be - (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, if he thinks fit, a summons, for caushing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." 8. Section 200 of the Criminal Procedure Code requires a Magistrate, before he takes cognizance, to examine the complainant and his witnesses, if any. The first proviso to this section, confers a discretion upon the Magistrate to dispense with the examination of a complainant and his witnesses, where the complaint is filed in writing, by a public servant acting or purporting to act in the discharge of his official duties or where a complaint is made by a Court or by a Magistrate under Section 192 of the Code of Criminal Procedure. 9. The process of summoning, is set into motion by an order passed under Section 204 Criminal Procedure Code The said statutory provision, uses two expressions "... if in the opinion of a Magistrate...." and ...." there is sufficient ground for proceeding...." These expressions, leave no manner of doubt, as to the nature of an order required to be passed. The essence of an order of summoning, is the opinion recorded and the reasons assigned, duly fortified by a process of reasoning, clearly discrenible from the order. if in the opinion of a Magistrate...." and ...." there is sufficient ground for proceeding...." These expressions, leave no manner of doubt, as to the nature of an order required to be passed. The essence of an order of summoning, is the opinion recorded and the reasons assigned, duly fortified by a process of reasoning, clearly discrenible from the order. The only discretion, available to Magistrate, is to dispense with the examiantion of a public servant or his witnesses, in terms of the first proviso to Section 200. This proviso does not suggest that in a complaint filed by a public servant acting or purporting to act in the discharge of his official duties, the Court is absolved of its statutory obligation to pass a reasoned judicial order, while summoning an accused. Contention, raised by counsel for the respondent that where a complaint is filed by a public servant, the Court need not record reasons for summoning, in my considered opinion, does merit acceptance. There is no statutory sanction or legal basis for such an argument. 10. Another reason that necessitates a Magistrate passing a reasoned order, is a right vested in an accused, to be made aware of the allgations, levelled against him, the opinion of the Magistrate and the reasons for the opinion, so formed. An order devoid of reasons, howsoever minimal, would violate the provisions of Section 204 of the Criminal Procedure Code 11. The impugned order having been passed in absolute disregard to the provisions of Sections 200 and 204 of the Code of Criminal Procedure, is set aside and the present appeal is allowed. The matter is remitted to the trial Court, with liberty to pass a fresh order, in accordance with law. Appeal allowed.