TMI Blog2017 (1) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... Kant and Ms. Kriti Handa, Advocates. S.P. GARG, J. 1. Present petition under Section 482 Cr.P.C. has been filed by the petitioner-Atul Dixit to challenge the legality and correctness of an order dated 14.10.2016 of learned Special Judge-03, CBI whereby the application filed under Section 155 of Customs Act was dismissed. The petition is contested by the respondent-CBI. 2. I have heard the learned Senior counsel for the petitioner and learned SPP for the respondent and have examined the file. 3. Admitted position is that petitioner is facing trial in case RC No.21A/2015/ACB/CBI/ND for commission of offences punishable under Section 120B read with Section 420 IPC and under Section 13(2) read with Section 13(1) (d) of P.C. Act along with others. FIR in question was registered on the basis of source information on 11.08.2015. The petitioner was arrested on 14.08.2015. Upon completion of investigation, a chargesheet has been filed on 19.09.2015. Initially, the bail application moved on behalf of the petitioner was dismissed by an order dated 6.10.2015. Finally, after submission of the charge-sheet, the petitioner was granted bail. 4. It is also not in dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trial has commenced on day-to-day basis and most of the witnesses have already been examined. Reliance has been placed on Ravindra Kumar Vs. Union of India MANU/RH/0997/2016; Brij Bhushan Vs. State and Anr. MANU/DE/0673/2010; PP.Unnikrishnan Anr. Vs. Puttiyottil Alikutty Anr. (2002) 8SCC 131; P.K.Pradhan Vs. The State of Sikkim AIR 2001 SC 2547. 8. At the outset, it may be mentioned that the petitioner had never raised objection regarding criminal prosecution to be barred being beyond limitation under Section 155 (2) of the Customs Act before the Trial Court before moving the application in question. The petitioner did not challenge the order taking cognizance of the offence as well as the order framing charge against him. When the trial is at its fag end, the petitioner has opted to move the instant application under Section 155(2) Customs Act. It is urged that at the time of moving first bail application initially this plea under Section 155 Customs Act was taken and specific findings were not recorded by the court concerned that time. On perusal of the bail order dated 06.10.2015, it reveals that plea taken was only under Section 155(1) Customs Act. Apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the limitation as provided under sub-section (2) of Section 40 would be applicable as no suit, prosecution or other legal proceedings can be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action. Apparently in the former Act, there was specific mention under Section 40 (2) that the limitation prescribed therein would be applicable not only to suits and other legal proceedings but to prosecution also. Apparently, the said judgment was under the unamended provisions which existed prior to 1973. 12. It is to be noted that the amended Section 40 as it exists at present is pari-materia with Section 155(2) of the Customs Act. Section 155(2) of the Customs Act does not prescribe any limitation for initiation of any criminal prosecution. The word prosecution is conspicuously missing in Section 155(2) of the Customs Act. By no stretch of imagination, it can be inferred that limitation as prescribed under Section 155(2) Cr.P.C. would be applicable to the criminal proceedings/prosecution. 13. In R.Raju s case (supra), Hon ble Supreme Court had referred various enactments i.e. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Manu/RH/0997/2016), decided 8.11.2016 High Court of Rajasthan (Jodhpur Bench) has taken the view that protection under 155(2) of the Customs Act is not available in criminal prosecution. I am in agreement with the said judgment. 19. Reliance on judgment in Costao Fernandes v.State (supra) is of no assistance. In that case, the Hon ble Supreme Court of India had held that the Customs Officer was entitled for protection from Criminal Prosecution under Section 155 read with Section 106 of Customs Act. The appellant in that case was on official duty as Preventive Officer and in the discharge of his official duty, he had chased a speedy Contessa car driven by the deceased. In an attempt to stop the car for searching it, he overtook the car and having disclosed his identity asked the deceased to stop it but when the driver had attempted to flee with the car, he jumped into the same and tried to take the ignition key in order to stop the vehicle. It was also revealed that the appellant had received various injuries including incise wounds which on the basis of medical report were likely to have been caused at the time when attempt to stop the car was made. Scuffle was between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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