Home Case Index All Cases Customs Customs + HC Customs - 2022 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 668 - HC - CustomsSmuggling - Gold - offences punishable under Section 132, 135 of Customs Act, 1962 - whether the application filed by the accused, even before the complaint is taken on file and even before the sworn statement is recorded is maintainable? - HELD THAT:- The offense complained is punishable with a maximum punishment of Seven years and therefore, this is a warrant case otherwise than by police report. Therefore, Section 245 Cr.P.C is the relevant provision applicable. Discharge under Section 245(1) is after recording of evidence , if there is no ground to proceed. Only under Section 245(2), the accused can be discharged at any state prior to the same - if the charge is groundless then the learned Magistrate is empowered to discharge the Accused under Section 245(2) of Cr.P.C. It is in this context, this case begs the question that the phrase “at any previous stage of case” whether would amount even at the presentation and “check and call on” stage of the complaint, that is, when the complaint is neither taken on file, nor the proceedings under Section 200 of the Code of Criminal Procedure has taken place by examination of the complainant on oath and or taking cognizance of offenses. It is clear that previous stage could be from the stage of Section 200 of Cr.P.C., whereby the learned Magistrate upon taking cognizance, is entitled, either to straight away issue process or conduct an enquiry by postponing the issue of process under Section 202 of Cr.P.C. Thereafter, either he can issue process or dismiss the complaint under Section 203 of Cr.P.C. - depending on the circumstances of the case, it can be held that even before the issue of process or examining the sworn statement of the complainant, there could be cognizance in a particular case. The only requirement is that the learned Magistrate should have taken authoritative notice of the allegations made in the complaint. In this case, upon presentation of the complaint, without taking any authoritative notice, the matter was simply adjourned to another day with the endorsement “check and call on”. Neither the complaint is numbered nor the sworn statement is recorded. This is the stage, in which the form of the complaint is being looked into before taking notice of any kind of the allegations in the complaint. Though the words “at any previous stage of the case” is meant to from the stage of inception i.e., under Section 200 of Cr.P.C., the same would not be extended to the 'check and call on' stage as it will be in the domain of the complainant, if the complaint is returned to modify, add, delete the contents of the complaint - the learned counsel for the petitioner is right in contending the application filed by the Accused No. 1, even though the couched in the phrase of ' dropping of all further proceedings' can mean an application for discharge as per Section 245(2) only and still it is pre-mature. Application disposed off.
|