Bombay High Court
M/S. Cmg Bioteck Pvt. Ltd. Thr. Director ... vs Union Of India, Ministry Of Health And ... on 2 September, 2025
2025:BHC-GOA:1624
2025:BHC-GOA:1624
21 WPCR 78 OF 2023.doc
dMeena
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.78 OF 2023
WITH
CRIMINAL WRIT PETITION NO.58 OF 2025
CRIMINAL WRIT PETITION NO.78 OF 2023
1. M/s. CMG Bioteck Pvt Ld.,
Through the Director Manoj Kumar
Gupta, Age 50 years,
Plot No.58, Phase-III,
Industrial area, Sansarpur Terrace,
Tehsil-Jaswan, Dist. Kangra (H.P.).
2. Manoj Kumar Gupta
Director of M/s. CMG Biotech Pvt Ltd,
Aged 50 years, Resident of G-64,
Arena Park, Shakarpur Delhi 92.
3. Mrs. Chandrakala Gupta
Director of M/s. CMG Biotech Pvt Ltd,
Resident of G-64, Arena Park,
Shakarpur Delhi 92.
4. GLOBUS CARE PHARMA,
through its Partner Manoj Kumar
Gupta, age 50 years, Industrial area,
Sansarpur Terrace, Tehsil-Jaswan, Dist.
Kangra (H.P.). ...... PETITIONERS
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21 WPCR 78 OF 2023.doc
VERSUS
State of Goa
At the instance of Mrs. Swati Lad,
Assistant Drugs Controller,
(The then Inspector, Directorate of ..... RESPONDENT
Food and Drugs Admn) Bambolim,
Goa.
Mr. Hanumant D. Naik, Advocate for the Applicant.
Mr. Somnath Karpe, Additional Public Prosecutor for the
Respondent.
WITH
CRIMINAL WRIT PETITION NO.58 OF 2025
1. M/s. CMG Bioteck Pvt Ld.,
Through its Director Manoj Kumar
Gupta, Age 50 years,
Plot No.58, Phase-III,
Industrial area, Sansarpur Terrace,
Tehsil-Jaswan, Dist. Kangra (H.P.)-176
501.
2. Manoj Kumar Gupta
Aged 50 years, Director of M/s. CMG
Biotech Pvt Ltd,
S/o. Subhash Chandra Gupta,
A-102, Ground Floor, Madhuban,
Nirman Vihar, East Delhi,
.... PETITIONERS
Delhi-110092.
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21 WPCR 78 OF 2023.doc
VERSUS
Union of India,
Ministry of Health and Family Welfare
Director General of Health Services,
Represented by Drugs Inspector
Deepak Kumar,
Earlier at Office of the Assistant Drugs
Controller (India), Ground Floor, Port
Users Complex (Old A.O Building),
Mormugao Harbour, Near to
Mormugao Sub Post Office,
Mormugao, Goa.
And Now at
Office of the Assistant Drugs
Controller (India), CDSCO Sub-
Zone/Port Offices, Room No.07 & 08,
First Floor, Air Cargo Terminal
Building, Manohar International
Airport, Dadachiwadi Road, Nagzar,
Taluka Pernem, Mopa, Goa-403512 ..... RESPONDENT
Mr. Hanumant D. Naik, Advocate for the Applicant.
Ms. Susan Linhares, Central Government Standing Counsel for the
Respondent.
CORAM:- VALMIKI MENEZES, J.
DATED :- 2nd September, 2025
ORAL JUDGMENT:
1. Registry to waive oice objections and register the matter.
21 WPCR 78 OF 2023.doc
2. Heard learned Counsel for the parties.
3. Rule. Rule is made returnable forthwith at the request of and
with the consent of the learned Counsel parties.
4. By this common judgment, I propose to dispose of these two
Writ Petitions. In Criminal Writ Petition No.78 of 2023, the order
challenged is dated 05.04.2021 passed by the JMFC, Margao in
Criminal Case No.AOA/601/DCA/2020/II while in Criminal Writ
Petition No. 313 of 2024 the order challenged is dated 21.09.2022
passed by the JMFC, Pernem in Criminal Case No.AOA/21/2022.
Both these orders issue process against the Petitioners, on a
complaint iled by the State of Goa through the Drugs Inspector,
Directorate of Foods and Drugs Administration, seeking prosecution
of the Petitioners under Section 32(2) and 36 of the Drugs and
Cosmetics Act, 1940.
5. he two main contentions pressed in this petition are that the
impugned order of issuance of process has been passed by the
Magistrate without supplying any reasons for issuing process and, the
order issuing process has been passed without conducting a
mandatory inquiry under Section 202 of the CrPC, considering that
the Petitioners reside or have their registered oice at a place beyond
the area in which the Magistrate exercises jurisdiction.
21 WPCR 78 OF 2023.doc
6. On a plain reading of the impugned order, the Magistrate has
mechanically passed an order stating "cognizance taken, issue
summons to the Accused"; the order is totally devoid of any
reasoning or reference to the allegations made in the complaint. he
order does not relect the application of mind by the Magistrate to
the facts stated in the complaint, before issuing process; even if the
Petitioners were residing within the territorial jurisdiction of the
Magistrate concerned, the order must contain reasons demonstrating
application of mind to the facts stated in the complaint. Absence of
such reasons would render the order contrary to Section 200 of the
Act and would have to be quashed and set aside.
7. In Kirti Kumar Jayantilal Patel and others v/s. State of
Maharashtra reported in [2023 All MR (Cri) 1623], the Supreme
Court has held that the order of issuance of process which is devoid
of reasons relects non application of mind to the averments made in
the complaint and is contrary to the provisions of Section 200 of the
Code. On this count itself the order is quashed and set aside.
8. here is a second reason why the impugned order cannot be
sustained. Section 202 of the Code requires that, where the accused
resides at a place beyond the area in which the Magistrate exercises its
jurisdiction, it is mandatory on the part of the Magistrate to conduct
an inquiry or investigation before issuing process. In the present
21 WPCR 78 OF 2023.doc
case, admittedly the accused reside or have their registered oice
beyond the jurisdiction of the JMFC at Margao / Pernem. In both
these cases, the JMFC has not followed the mandatory procedure laid
down under Section 202 before issuing process, thus vitiating its
order. his Court, in Akums Drugs and Pharmaceuticals Limited
and Ors v/s. he State of Maharashtra and ors. reported in
MANU/MH/0573/2021 has considered a similar case where process
was issued contrary to the provisions of Section 202. he relevant
portions of the judgment are quoted below:
7. he legislative purpose and the binding nature of the
provision is elaborately considered by the Supreme Court,
inter alia in Abhijit Pawar v. Hemant Madhukar Nimbalkar
& Anr. 2017 ALL SCR (Cri) 236 and it would be apposite
to note the following articulation in the said decision:
"21. Basic facts which need to be recapitulated for
deciding this issue are that A-1 is the Managing
Director of Sakal newspapers whereas A-2 is the
Chairman of the Company. Further, insofar as
declaration under Section 7 of the Press Act is
concerned, name of the other accused persons are
mentioned except these two accused persons.
herefore, we have to examine the matter keeping in
view non-existence of such a presumption against
these two accused persons. It is also an admitted fact
that both the accused persons are not residents of
21 WPCR 78 OF 2023.doc
Kolhapur and are outside his jurisdiction. Having
regard to these facts, we proceed to examine the
matter in the light of the provisions of Section 202,
Cr.P.C. as well as Section 7 of the Press Act.
22. Admitted position in law is that in those cases
where the accused is residing at a place beyond the
area in which the Magistrate exercises his jurisdiction,
it is mandatory on the part of the Magistrate to
conduct an enquiry or investigation before issuing
the process. Section 202 of the Cr.PC. was amended
in the year by the Code of Criminal Procedure
(Amendment) Act, 2005, with efect from 22nd June,
2006 by adding the words 'and shall, in a case where
the accused is residing at a place beyond the area in
which he exercises his jurisdiction. here is a vital
purpose or objective behind this amendment, namely,
to ward of false complaints against such persons
residing at a far of places in order to save them from
unnecessary harassment. hus, the amended provision
casts an obligation on the Magistrate to conduct
enquiry or direct investigation before issuing the
process, so that false complaints are iltered and
rejected. he aforesaid purpose is speciically
mentioned in the note appended to the Bill proposing
the said amendment. he essence and purpose of this
amendment has been captured by this Court in Vijay
Dhanuka Vs. Najima Mamtaj, (2014) 14 SCC 638:
[2014 ALL MR (Cri) 1924 (S.C.)] in the following
words:
21 WPCR 78 OF 2023.doc
"11. Section 202 of the Code, inter alia,
contemplates postponement of the issue of the
process "in a case where the accused is residing at
a place beyond the area in which he exercises his
jurisdiction" and thereafter to either inquire into
the case by himself or direct an investigation to be
made by a police oicer or by such other person as
he thinks it. In the face of it, what needs our
determination is as to whether in a case where the
accused is residing at a place beyond the area in
which the Magistrate exercises his jurisdiction,
inquiry is mandatory or not.
12. he words "and shall, in a case where the accused is
residing at a place beyond the area in which he exercises
his jurisdiction" were inserted by Section 19 of the
Code of Criminal Procedure (Amendment) Act
(Central Act 25 of 2005) w.e.f. 23-6-2006. he
aforesaid amendment, in the opinion of the legislature,
was essential as false complaints are iled against
persons residing at farof places in order to harass them.
he note for the amendment reads as follows:
"False complaints are iled against persons residing at
far of 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
21 WPCR 78 OF 2023.doc
enquire into the case himself or direct investigation
to be made by a police oicer or by such other
person as he thinks it, for inding out whether or
not there was suicient ground for proceeding
against the accused."
he use of the expression "shall" prima facie makes the
inquiry or the investigation, as the case may be, by the
Magistrate mandatory. he word "shall" is ordinarily
mandatory but sometimes, taking into account the
context or the intention, it can be held to be directory.
he use of the word "shall" in all circumstances is not
decisive. Bearing in mind the aforesaid principle, when
we look to the intention of the legislature, we ind that
it is aimed to prevent innocent persons from
harassment by unscrupulous persons from false
complaints. Hence, in our opinion, the use of the
expression "shall" and the background and the purpose
for which the amendment has been brought, we have
no doubt in our mind that inquiry or the
investigation, as the case may be, is mandatory before
summons are issued against the accused living beyond
the territorial jurisdiction of the Magistrate."
23. For this reason, the amended provision casts an
obligation on the Magistrate to apply his mind
carefully and satisfy himself that the allegations in the
complaint, when considered along with the statements
recorded or the enquiry conducted thereon, would
prima facie constitute the ofence for which the
21 WPCR 78 OF 2023.doc
complaint is iled. his requirement is emphasised by
this Court in a recent judgment Mehmood Ul
Rehman Vs. Khazir Mohammad Tunda, (2016) 1
SCC (Cri) 124:[2015 ALL SCR 2242] in the
following words:
"20. he extensive reference to the case law would
clearly show that cognizance of an ofence on
complaint is taken for the purpose of issuing
process to the accused. Since it is a process of
taking judicial notice of certain facts which
constitute an ofence, there has to be application of
mind as to whether the allegations in the
complaint, when considered along with the
statements recorded or the inquiry conducted
thereon, would constitute violation of law so as to
call a person to appear before the criminal court. It
is not a mechanical process or matter of course. As
held by this Court in Pepsi Foods Ltd. [Pepsi
Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC
749: 1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is a serious
matter.
22. he steps taken by the Magistrate under Section
190(1)(a) CrPC followed by Section 204 CrPC should
relect that the Magistrate has applied his mind to the
facts and the statements and he is satisied that there is
ground for proceeding further in the matter by asking
the person against whom the violation of law is
21 WPCR 78 OF 2023.doc
alleged, to appear before the court. he satisfaction on
the ground for proceeding would mean that the facts
alleged in the complaint would constitute an ofence,
and when considered along with the statements
recorded, would, prima facie, make the accused
answerable before the court. No doubt, no formal
order or a speaking order is required to be passed at
that stage. he Code of Criminal Procedure requires
speaking order to be passed under Section 203 CrPC
when the complaint is dismissed and that too the
reasons need to be stated only briely. In other words,
the Magistrate is not to act as a post oice in taking
cognizance of each and every complaint iled before
him and issue process as a matter of course. here
must be suicient indication in the order passed by
the Magistrate that he is satisied that the allegations
in the complaint constitute an ofence and when
considered along with the statements recorded and the
result of inquiry or report of investigation under
Section 202 CrPC, if any, the accused is answerable
before the criminal court, there is ground for
proceeding against the accused under Section 204
CrPC, by issuing process for appearance. he
application of mind is best demonstrated by disclosure
of mind on the satisfaction. If there is no such
indication in a case where the Magistrate proceeds
under Sections 190/204 CrPC, the High Court under
Section 482 CrPC is bound to invoke its inherent
power in order to prevent abuse of the power of the
criminal court. To be called to appear before the
criminal court as an accused is serious matter afecting
21 WPCR 78 OF 2023.doc
one's dignity, self-respect and image in society. Hence,
the process of criminal court shall not be made a
weapon of harassment."
24. he requirement of conducting enquiry or
directing investigation before issuing process is,
therefore, not an empty formality. What kind of
'enquiry' is needed under this provision has also been
explained in Vijay Dhanuka (2014) 14 SCC 638:
[2014 ALL MR (Cri) 1924 (S.C.)] case, which is
reproduced hereunder:
"14. In view of our answer to the aforesaid
question, the next question which falls for our
determination is whether the learned Magistrate
before issuing summons has held the inquiry as
mandated under Section 202 of the Code. he
word "inquiry" has been deined under Section
2(g) of the Code, the same reads as follows:
"2. (g) 'inquiry means every inquiry, other than a
trial, conducted under this Code by a Magistrate
or court,"
It is evident from the aforesaid provision, every inquiry
other than a trial conducted by the Magistrate or the
court is an inquiry. No speciic mode or manner of
inquiry is provided under Section 202 of the Code. In
the inquiry envisaged under Section 202 of the Code,
21 WPCR 78 OF 2023.doc
the witnesses are examined whereas under Section 200
of the Code, examination of the complainant only is
necessary with the option of examining the witnesses
present, if any. his exercise by the Magistrate, for the
purpose of deciding whether or not there is suicient
ground for proceeding against the accused, is nothing
but an inquiry envisaged under Section 202 of the
Code."
25. When we peruse the summoning order, we ind that
it does not relect any such inquiry. No doubt, the order
mentioned that the learned Magistrate had passed the
same after reading the complaint, veriication statement
of complainant and after perusing the copies of
documents iled on record, i.e., FIR translation of
complaint, aidavit of advocate who had translated the
FIR into English etc. the operative portion reads as under
"On considering facts on record, it appears that
complainant has made out prima facie case against the
accused for, the ofences punishable under Sections 500,
501, 50 read with 34 of the Indian Penal Code. Hence
issue process against the accused for the above ofences
returnable on 23.12.2009 case be registered as Summary
Case."
8. he complaint is preferred by a public servant, and
therefore, the Magistrate was not required to examine the
complainant and the witnesses under Section 200 of the
Code. However, the learned Magistrate was nonetheless
21 WPCR 78 OF 2023.doc
required to postpone the process and to comply with the
provisions of Section 202 (1) of the Code. Such a view is
taken by a learned Single Judge in Shishir Joshipura v. State
of Maharashtra & Anr. 2018 LawSuit(Bom) 1551. I am
inclined to respectfully agree with the said view.
9. For the reasons stated above, the impugned order dated
05.04.2021 passed by the JMFC, Margao in Criminal Case No.
AOA/601/DCA/2020/II and order dated 21.09.2022 passed by the
JMFC Pernem in Criminal Case No.AOA/21/2022 are quashed and
set aside. he Criminal Cases /complaints shall be considered by the
respective Magistrates afresh on the point of issuance of process,
after considering the provisions of Sections 200 and 202 and in the
light of the observations made herein above.
10. Rule is made absolute in the above terms.
11. All contentions of all parties are left open.
VALMIKI MENEZES, J.
