[Cites 13, Cited by 0]

Himachal Pradesh High Court

Reserved On: 08.01.2026 vs Of on 23 February, 2026

                                                                                   2026:HHC:3558



     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. MMO No. 1280 of 2025




                                                                                   .
                                              Reserved on: 08.01.2026





                                              Date of Decision: 23.02.2026.





    Vijay Laxmi Verma                                                            ...Petitioner

                                          Versus




                                                      of
    State of H.P. and others                                                 ...Respondents


    Coram
                           rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1 No

    For the Petitioner                          :      Mr Parav Sharma, Advocate.


    For the Respondents/State                   :      Mr     Jitender   Sharma,
                                                       Additional Advocate General.




    Rakesh Kainthla, Judge

The present petition has been filed against the order

dated 13.10.2025, passed by the learned Additional Chief Judicial

Magistrate, Nadaun, District Hamirpur (learned Trial Court)

vide which an application for discharging the applicant (the

accused before the learned Trial Court) was dismissed after

holding that no such jurisdiction is vested in him. (Parties shall

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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hereinafter be referred to in the same manner as they were arrayed

before the learned Trial Court for convenience.)

2. Briefly stated, that facts giving rise to the present

petition are that the Drugs Inspector filed a complaint before the

learned Trial Court against the accused and other persons

of asserting that he had inspected the shop being run in the name

and style of M/s Shri Medical Store, Opposite Bus Stand Nadaun,

District rt Hamirpur (HP) and obtained the samples of

Chlorpheniramine Maleate Tablets for analysis. These were sent

to the Government analyst CTL Kandaghat, who issued a report

mentioning that the drug was not of standard quality. The

complainant filed a complaint before the learned Trial Court

against the accused after completing the necessary formalities.

3. The accused appeared before the learned Trial Court

and filed an application seeking her discharge. Learned Trial

Court held that it had no jurisdiction to discharge a person in a

summons case.

4. Being aggrieved by the order passed by the learned

Trial Court, the petitioner/accused has filed the present petition

asserting that the learned Trial Court erred in dismissing the

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application. There was an inordinate delay in sending the

samples for examination. The complaint was filed without

taking any permission from the competent authority, as per the

guidelines of the Director General of Health Services. The

prosecution could not be launched if the quantity of drugs in the

sample is above 70% of the standard laid down. In the present

of case, the sample had a ratio of 87.9 %, and the prosecution was

not maintainable. The sample was collected on 08.01.2009, and rt the report was issued on 31.10.2009. A petition for quashing of

the complaint was filed by co-accused Anil Mediratta and Ors,

which was registered as Cr.MMO. No. 738 of 2021 and was

allowed on 04.07.2024. Therefore, it was prayed that the present

petition be allowed and the order passed by the learned Trial

Court be set aside.

5. I have heard Mr Parav Sharma, learned counsel for

the petitioner and Mr Jitender Sharma, learned Additional

Advocate General for the respondent/State.

6. Mr Parav Sharma, learned counsel for the petitioner,

submitted that the learned Trial Court erred in dismissing the

application. The Coordinate Bench of this Court had allowed the

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petition filed by co-accused Anil Mediratta, and the present

proceedings cannot continue against the present petitioner.

Therefore, he prayed that the present petition be allowed and

the order passed by the learned Trial Court be set aside.

7. Mr Jitender Sharma, learned Additional Advocate

of General for the respondent/State, submitted that the learned

Trial Court had rightly held that there is no provision for rt discharging the accused in a summons case. There is no

infirmity in the order passed by the learned Trial Court.

Therefore, he prayed that the present petition be dismissed.

8. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

9. It is undisputed that the learned Trial Court is trying

the present matter as a summons case. Learned Trial Court had

rightly held that the Magistrate does not have the jurisdiction to

recall the order summoning the accused. It was laid down by the

Hon'ble Supreme Court in Adalat Prasad v. Rooplal Jindal, (2004)

7 SCC 338: 2004 SCC (Cri) 1927: 2004 SCC OnLine SC 949 that the

Magistrate cannot recall the summoning order issued by him

and the remedy of a person aggrieved by the summoning order

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is approaching the High Court under Section 482 of Cr.P.C. and

not filing a discharge petition. This judgment was followed in

Everest Advertising (P) Ltd. v. State (Govt. of NCT of Delhi), (2007) 5

SCC 54: (2007) 2 SCC (Cri) 444: (2007) 137 Comp Cas 32: 2007 SCC

OnLine SC 487, wherein it was observed at page 58:

of "10. Summons were issued by the learned Magistrate by reason of an order dated 24-7-1999. He recalled the said order. He did not have any jurisdiction in that behalf. A Magistrate does not have and, thus, cannot exercise any rt inherent jurisdiction.

11. In Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338:

2004 SCC (Cri) 1927] a three-Judge Bench of this Court while overruling an earlier decision of this Court in K.M. Mathew v. State of Kerala [(1992) 1 SCC 217: 1992 SCC (Cri) 88] stated the law thus: (SCC p. 343, paras 14 & 16)

"14. But after taking cognisance of the complaint and examining the complainant and the witnesses, if he is satisfied that there is sufficient ground to proceed with

the complaint, he can issue process by way of summons under Section 204 of the Code. Therefore,

what is necessary or a condition precedent for issuing a process under Section 204 is the satisfaction of the Magistrate, either by examination of the complainant

and the witnesses or by the inquiry contemplated under Section 202, that there is sufficient ground for proceeding with the complaint, hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons, because this is only a preliminary stage, and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case [(1992) 1 SCC 217: 1992 SCC (Cri) 88] that before issuance of

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summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry

.

conducted by him as contemplated under Sections 200

and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore,

the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the

of Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

rt ***

16. Therefore, in our opinion the observation of this

Court in the case of Mathew [(1992) 1 SCC 217: 1992 SCC (Cri) 88] that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code

which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion that the view of this Court in the

Mathew case [(1992) 1 SCC 217: 1992 SCC (Cri) 88] that no specific provision is required for recalling an

erroneous order, amounting to one without jurisdiction, does not lay down the correct law."

12. The said ratio has been reiterated by another three- Judge Bench of this Court in Subramanium Sethuraman v. State of Maharashtra [(2004) 13 SCC 324:

2005 SCC (Cri) 242: JT (2004) 8 SC 220] and N.K. Sharma v. Abhimanyu [(2005) 13 SCC 213 : (2006) 2 SCC (Cri) 135].

10. A similar view was taken in Iris Computers Ltd. v.

Askari Infotech (P) Ltd., (2015) 14 SCC 399 : (2016) 2 SCC (Cri) 389:

2013 SCC OnLine SC 1226, wherein it was observed at page 403:

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9. This Court has dealt with the question of recall of a process issued under Section 204 of the Code in Adalat Prasad case [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC

.

338: 2004 SCC (Cri) 1927] and opined that the Code does

not contemplate or provide for any provision affording opportunity to the accused until the issuance of process to him under Section 204. This Court has observed that

before issuing a summons under Section 204 of the Code, the Magistrate must be satisfied that there exists sufficient ground for proceeding with the complaint and a

of prima facie case is made out against the accused. The said satisfaction should be arrived at by conducting an inquiry as contemplated under Sections 200 and 202 of the Code. The first stage of dismissal of the complaint before the rt issuance of process arises under Section 203 of the Code, at which stage the accused has no role to play. Subsequent

to the issuance of the process, the question of the accused approaching the court by making an application under Section 203 of the Code for dismissal of the complaint is impermissible because by then the stage of Section 203 is

already over and the Magistrate has proceeded further to the Section 204 stage.

10. Therefore, the crux of the matter rests into the

existence of two different scenarios; the former involving only the complainant's role and the latter introducing the

accused. The former constitutes cognisance of the offence on complaint, satisfaction reached by the Magistrate that

a prima facie case is made out and thereafter, issuance of process to the accused. It is only after the aforesaid stages are complete that the next stage is triggered, enabling the accused to actively participate in the proceedings. The dismissal of the complaint by the Magistrate under Section 203 evidently falls into the former stages of proceedings when the Magistrate has to base his opinion as to the existence of sufficient ground for proceeding towards the second stage on the statements of the complainant and the witnesses, along with the result of the inquiry conducted under Section 202. It is for obvious reasons that none of the former stages in the Code

2026:HHC:3558

provide for hearing the summoned accused, the said being only preliminary stages and the stage of hearing of the accused arising at subsequent stages provided for in

the latter provisions in the Code. (See Bholu Ram v. State

of Punjab [Bholu Ram v. State of Punjab, (2008) 9 SCC 140 :

(2008) 3 SCC (Cri) 710] .)

11. Having noticed the aforesaid, this Court in Adalat

Prasad case [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338: 2004 SCC (Cri) 1927] held a contrary view in respect of recalling of erroneous order of issuance of process from

of the earlier view taken by this Court in K.M. Mathew v. State of Kerala [(1992) 1 SCC 217: 1992 SCC (Cri) 88] and opined that the scheme of the Code does not provide for review of order of issuance of process and rt prohibits interference by the accused at the interlocutory stage under Section 203. This Court, after overruling the

view expressed by this Court in the K.M. Mathew case [(1992) 1 SCC 217: 1992 SCC (Cri) 88], has stated as under: (Adalat Prasad case [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338: 2004 SCC (Cri) 1927], SCC p. 343, para 15)

"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material

implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the

Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by

invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code."

12. The aforesaid law laid down in Adalat Prasad case [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338:

2004 SCC (Cri) 1927] has been followed and reiterated by this Court in its subsequent decisions in Bholu Ram case [Bholu Ram v. State of Punjab, (2008) 9 SCC 140 :

(2008) 3 SCC (Cri) 710], Subramanium Sethuraman v. State

2026:HHC:3558

of Maharashtra [(2004) 13 SCC 324: 2005 SCC (Cri) 242], N.K. Sharma v. Abhimanyu [(2005) 13 SCC 213 : (2006) 2 SCC (Cri) 135] and Everest Advertising (P) Ltd. v. State

.

(Govt. of NCT of Delhi) [(2007) 5 SCC 54 : (2007) 2 SCC (Cri)

444].

11. No contrary precedent was brought to the notice of

this Court; therefore, there is no infirmity in the view taken by

the learned Trial Court that it had no jurisdiction to recall the

of order and discharge the accused.

12. The Co-ordinate Bench of this Court was dealing rt with a quashing petition in Anil Mediratta and others vs. State of

H.P. and others, and not with the discharge of the accused;

hence, the cited judgment will not apply to the present case.

13. The petitioner has filed the present petition for

setting aside the order for discharge and has incidentally prayed

that the complaint and the consequential proceedings be