Procedure U/S105 CrPC For International Service Of Summons Doesn't Extend To Revision Applications: Calcutta High Court

The Calcutta High Court has held that though procedural fairness is vital in criminal trials, the application of Section 105 of the CrPC for the service on summons on persons resident outside India in criminal matters does not extend to the service of notice in revisional matters abroad.

Justice Bibhas Ranjan De held: "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."

"Conglomeration of the aforesaid discussion, therefore clearly boils down to the only logical conclusion 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," he added.

Facts of the case

The petitioner/ UBS Switzerland AG lodged a complaint against the accused/ opposite party no. 2 to 7 on an allegation that the petitioner pledged goods of over Rs. 55 crores which were delivered in Kolkata and those goods were misappropriated by the accused/opposite party no. 2 to 7.

At the time of granting anticipatory bail, an amount of INR 10 crores was deposited by accused no. 2 to 4 and subsequently, the petitioner/defacto complainant was allowed to withdraw the said amount.

On 27.06.2024, on behalf of the State, an application was moved seeking an order for the issuance of a summons in terms of Section 105 of the Code of Criminal Procedure (hereinafter referred to as CrPC), which was allowed. Subsequently, on 12.08.2024, the Additional Sessions Judge passed an order dispensing with the service on the sole ground of representation of the de facto complainant through an Advocate before the Court of the Chief Judicial Magistrate.

Being aggrieved by the order, the present application was moved.

Counsel, appearing on behalf of the petitioner, submitted that on June 27, 2024 an application was moved on behalf of the State for issuance of the summons on the opposite party under Section 105 CrPC and the Additional Sessions Judge, 12th Court, allowed the application, directing service of notice under Section 105 of CrPC.

Subsequently, on 12.08.2024, the order was recalled and that service was dispensed with solely on the basis of submission on behalf of the accused that an Advocate had earlier represented the petitioner/defacto complainant before the Court of the Chief Judicial Magistrate.

It is submitted that the appearance before the Chief Judicial Magistrate does not necessarily lead to a presumption of appearance before the revisional court.

It was submitted that there was a 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 stated that Section 105 CrPC specifically mandates the 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 a respondent in the revision petition.

Senior Counsel appearing on behalf of the opposite party no. 2 contended and that the meticulously prescribed procedural framework governing the issuance of summons to the accused, as comprehensively delineated under the provision of Section 105 of the CrPC, 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.

Court's findings 

Court noted that  Section 105 of the CrPC, confers a specific, guided and controlled power to authorities for executing certain processes, particularly relating to search, seizure, issuance of warrant and attachment of property with built in safe guards and procedural requirements.

"It is not an unguided or arbitrary power, but one that is subject to judicial oversight, statutory conditions and constitutional principles. The specific object of inserting Section 105 CrPC was to provide a clear, statutory procedure for executing searches, seizures, issuance of warrant and attachment of property especially in cases involving extraterritorial elements or complex matters. The main aim of this specific enactment is to balance effective law enforcement with safeguards against abuse, as can be seen by several judicial pronouncements of the Hon'ble Apex Court," the bench stated.

It was held that Judicial Review is a key safeguard to prevent abuse of powers under Section 105 CrPC.

In the present matter, the court stated that the sole factor that was left for adjudication was whether in the case of a revision application, there lies any statutory requirement to send notice to the opposite party/defacto complainant therein who is residing outside the territory of India in consonance with the structural framework of Section 105 CrPC.

Accordingly, it was held that there was 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." it was concluded.

Case: UBS Switzerland AG Vs. The State of West Bengal & Ors. 

Case No: C.R.R. 4314 of 2024

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