Service Of Summon U/s. 105 Cr.P.C. To Parties Residing Abroad Not Mandated In Revision Applications: Calcutta High Court

The Calcutta High Court has held that the procedural requirement to serve a Notice under Section 105 Criminal Procedure Code to an opposite party is not mandated in revision petition when the parties are residing abroad.

The Court was considering a Revision Application preferred by the defacto complainant against an order dispensing with the order of issuance of summons in terms of Section 105 of the Code of Criminal Procedure to the opposite party residing abroad.

The single bench of Justice Bibhas Ranjan De observed, "Revision applications, in my humble opinion, are primarily concerned with errors of law or jurisdiction in the proceedings of Sub-ordinates Courts. The procedural requirement to serve a notice to an opposite party residing abroad is not explicitly mandated in the revision process itself. The Courts have consistently acknowledged the existence of procedural flexibility, especially in international contexts. Alternatively, it can be held that while procedural diligence is desirable, the law recognizes that in absence of prejudice, proceedings are not automatically invalidated."

The Applicant was represented by Advocate Sanjay Banerjee while the Respondent was represented by Advocate Rituparna De Ghosh.

Facts of the Case

The Petitioner/ UBS Switzerland AG lodged a complaint against the Accused/ Opposite Party which was registered on an allegation that the Petitioner pledged goods of over ₹55 crores which were delivered in Kolkata and those goods were misappropriated by the accused/opposite party no. 2 to 7 herein. At the time of granting anticipatory bail an amount of ₹10 crores was deposited by accused no. 2 to 4 and subsequently petitioner/ defacto complainant was allowed to withdraw the said amount. After successive investigation two closure reports were filed which were set aside by Chief Judicial Magistrate. Later, on behalf of the State one application was moved seeking an order for issuance of summons in terms of Section 105 of Code of Criminal Procedure which was allowed. Though, subsequently, the Additional Sessions Judge passed an order dispensing with the service on the sole ground of representation of defacto complainant through the Advocate before the Court of Chief Judicial Magistrate.

Counsel for the Petitioner submitted that appearance before Chief Judicial Magistrate does not necessarily lead to a presumption of appearance before the Revisional Court. The Counsel also contended that there was reciprocal arrangement between India and Switzerland and therefore the Petitioner, being a swiss entity can only be served with a judicial document in a criminal matter by following the mandatory provision under Section 105 CrPC. It was further contended that Section 105 CrPC specifically mandates service of summons in relation to criminal matters and the said provision cannot be interpreted destructively by excluding service of notice upon the Petitioner, a swiss entity, who is arrayed as respondent in revision petition.

On the other hand, Counsel for the Opposite Party submitted that the prescribed procedural framework governing the issuance of summons to the Accused, as comprehensively delineated under the provision of Section 105 of the Cr.P.C., bears no applicability whatsoever and stands entirely divorced from the distinct procedural requirements pertaining to the issuance of Notice upon the opposite party in the context of a Revision Application.

Reasoning By Court

The Court held that there is no statutory requirement under Section 105 that mandates sending notice to an opposite party/defacto complainant residing outside the territory of India in each and every revision application

"The provisions and judicial interpretations would further suggest that while service of process through diplomatic channels or international arrangements is contemplated and facilitated, the Law does not explicitly impose a mandatory obligation to send notice to such parties in the context of revision proceeding. The logical interpretation of the various judicial decisions would further clarify that failure to effect service under Section 105 of CrPC does not necessarily vitiate the proceedings of the entire criminal revision", the Court observed.

Mentioning that in the case at hand, the Notice was indeed sent to the correct address of the Petitioner through registered post with AD, therefore it cannot be said that the Petitioner’s right to a fair hearing has been prejudiced in any manner whatsoever.

The Court while allowing the contention that just because the Petitioner was represented through an Advocate in the Trial Court, only on that particular ground service of Notice upon the person residing outside the territory of India can be dispensed with by the Additional Sessions Judge, held that mere representation by Counsel does not substitute or waive the necessity of valid notice as prescribed by law

"Service of notice is a procedural requirement that must be fulfilled independently of the appearance or representation of counsel. The Hon’ble Apex Court in this regard, has consistently held that procedural compliance cannot be bypassed merely because the person is represented by counsel as the purpose of service is to ensure actual notice and opportunity to be heard, which cannot be presumed solely on the basis of the legal representation", the Court observed.

Concluding that Section 105 CrPC cannot be said to be applicable in case of service of Notice to an opposite party/ defacto complainant in criminal revision, the Court stated that the finding of the Additional Session Judge cannot be said to be backed by substantial basis, the ultimate direction of not allowing issuance of notice under Section 105 CrPC is correct.

The Revision Application was accordingly dismissed.

Cause Title: UBS Switzerland AG vs. The State of West Bengal & Ors.

Appearances:

Petitioner- Advocate Sanjay Banerjee, Advocate Srinivas Chatti, Advocate Labony Ray

Respondents - Advocate Rituparna De Ghosh, Advocate Diksha Ghosh, Senior Advocate Ayan Bhattacharya, Advocate Shonok Monda, Advocate A.K. Dey

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