Home Case Index All Cases Customs Customs + HC Customs - 2022 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 341 - HC - CustomsSmuggling - gold biscuits of foreign origin - power of Magistrate to discharge the accused under Section 245(2) of Cr.P.C. - HELD THAT:- In the case on hand, the learned Magistrate without examining any witnesses straight away had taken cognizance on the complaint lodged by the respondent and issued summons to the petitioners - 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. Therefore, 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 the case on hand, upon presentation of the complaint, with out examining witnesses the learned Magistrate had taken cognizance and straight away issued summons to the petitioners. Therefore, even 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 Magistrate ought not to have taken cognizance as against the petitioner even before recording their statements. Therefore, the impugned proceedings cannot be sustained as against the petitioner and it is liable to be set aside - Petition allowed.
|