TMI Blog1978 (9) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 1957 and March 1960, offences under Section 120B, I.P.S., read with Section 167(81) of the Sea Customs Act, 1978, and Section 5 of the Imports and Exports Act, 1947, were committed by one Ramlal Laxmidutta Nanda and seven others, including the appellant, who is accused No. 2 in the Trial Court. Ramlal Laxmidutta Nanda was alleged to be the principal culprit. He died on September 15, 1960. As a result of a conspiracy, twenty-for consignments of goods came from abroad and were received in Bombay. The conspiracy was carried out in this manner. By steamer, two consignments bearing similar marks would arrive such as M.T.S. M.I.S. marked in triangle. The first consignment would contain the genuine goods and the second consignment would contain less number of cases than the first consignment. The documents would arrive for the first consignment. With the help of the documents for the genuine goods, the Customs examination would be carried out, and then at the time of removing the real consignment, contraband consignment plus one case of the genuine consignment would be removed. Remaining goods of the genuine consignments with their marks tampered, would be left unattended in the docks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence already recorded, framed charges against Mithani and his 6 co-accused. Under the first charge, Mithani (accused No. 2) was jointly charged with Accused 1, 3, 4, 5, 6 and 7 with criminal conspiracy between September 1957 and February 1, 1960 or thereabout, with intent to defraud the Government of India of the duty payable on various contraband goods and to evade the prohibition and restrictions imposed relating thereto for acquiring possession of large quantity of contraband goods etc. It was specifically recited in the charge that accused No. 2 was, at the relevant time, partner of Shanti Lal and Chagan Lal Co., Bombay, and also constituted Attorney of Suresh Trading Co., Dee Deepak Co., New Delhi, and also of Eastern Trading Corporation, Bombay and had an interest in all these three concerns. 8. On February 19, 1963, the State filed Criminal Revisions Application No. 107 of 1963 in the High Court against the orders dated August 24, 1962 and December 6, 1962 of the Magistrate, whereby the latter had refused to admit 11 Verladescheins out of 20 in evidence. The State, also, made a grievance against the failure of the Magistrate to frame charges in respect of certain alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esort to the exception contained in Section 32. 11. As regards the question whether these Verladescheins were admissible under Section 10, the learned Judge held that before considering this question, it would be wrong to look at these very documents the admissibility of which is in dispute , and that such a conclusion can be reached from evidence, documentary, oral or circumstantial, but apart from the disputed document itself. It does not appear from the order of the learned Magistrate that there was any independent material from which he had formed the opinion that two or more persons had conspired together to commit an offence. The learned Judge significantly added : If there is any such material or if the prosecution leads further evidence and if such material is brought on record, the learned Magistrate will, at the appropriate stage, be entitled to take this material into consideration and decide whether these documents can be admitted under Section 10 of the Evidence Act. The learned Judge pointed out that this could include an attempt to take out the goods. In this connection he observed : If apart from the question of the period during which the conspiracy exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thani surrendered and was committed to jail custody on January 13, 1967. Mithani came by special leave against the order cancelling his bail, to this Court. By order dated May 4, 1967, this Court dismissed Mithani's appeal, but restricted the time for examining the German Witnesses cited by the prosecution upto June 26, 1967. Since there was delay in procuring the attendance of German Witnesses within the time granted, Mithani was released on bail by an order dated July 26, 1967 of this Court. Thereafter, the prosecution applied to the Magistrate to proceed with the case without the Foreign Witnesses. 14. On July 10, 1967, the prosecution applied to the Magistrate for issue of commission for examination of the German Witnesses at Hamburg or Berlin or London. The Magistrate rejected this application by his order dated August 8, 1967. Against the Magistrate's order, the prosecution, again, went in revision to the High Court, which rejected the same by an order in September, 1967. Another revision petition filed in the High Court by the prosecution was dismissed by the High Court (V.S. Desai Wagle JJ) by an order dated August 9, 1968. 15. On December 2, 1968, the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge against the deleted accused on considering the material; and also on the ground that the former Magistrate had no power to discharge the accused after framing the charge. The High Court further observed that, whatever submissions the accused want to make with regard to not framing the charge are also open to them. At that stage, they did not want and could not consider the evidence before the Magistrate. In the result, the order dated February 26, 1969 of the Magistrate was set aside and the case was restored to the file of the Magistrate, except with regard to the deceased accused No. 7 for being dealt with as early as possible, in accordance with law and in the light of the observations made by the High Court. 19. Against this order, dated January 21, 1976, of the High Court setting aside the order dated February 26, 1969 of the Magistrate discharging the accused, the accused 2 (Mithani) has come in appeal before us. 20. The points canvassed by Shri I.N. Shroff, learned Counsel for the appellant, may be summarised as under : (i) In passing the then impugned order, the Magistrate was simply acting in consonance with the observation and implied directions contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision before the High Court in January 1976. The High Court's order dated January 21, 1976, directing de novo proceedings against the appellant after a lapse of several years would be unjust and unfair, particularly when this delay was attributable to the prosecution which had, indeed, closed its evidence before the framing of the charge and its request to examine the German Witnesses on commission stands declined. 21. As against this, Shri Soli Sorabji, learned Additional Solicitor-General submits that the appellant (Mithani), in fact, had never filed any revision against the order of the Magistrate, framing charges against him and others. It is pointed out that in Cr.R.A. No. 574 of 1964 filed by Mithani on July 17, 1964 in the High Court, the challenge was, in terms, confined to the Magistrate's order, dated December 6, 1962, whereby he had admitted 9 Verladescheins, Bills of Lading, invoices etc. into evidence; and that the order dated December 21, 1962, framing the charges was not specifically challenged. In any case, Gokhale J. had summarily rejected Mithani's Criminal Revision by an order, dated August 21, 1964. According to Shri Sorabji, the further observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Section 254 indicates when and in what circumstances a charge should be framed. It reads : 254. If when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Section 255 enjoins that the charge shall then be read over and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record that plea, and may convict him there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 353 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of charges if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Section 254 to 258, to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973). 28. Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a 'finding of not guilty' turning on the merits of the case and the appreciation of evidence at the conclusion of the trial. 29. If after framing charges the Magistrate whimsically, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay and expense which in the circumstances of the case, appeared to the Court to be unreasonable. Similarly, with regard to the invocation of Section 10, Evidence Act, it was observed that before the documents concerned could be admitted under Section 10, Evidence Act, prima facie proof, aliunde should be given about the existence of the conspiracy. On the contrary, Gokhale J. clearly held that the documents, in question, were relevant to the facts in issue, but they had to be proved in any of the ways recognised by the Evidence Act, Gokhale J. never quashed the charges already framed by the Magistrate. It is true that the prosecution in its Special Leave Petitions 965 and 966 contended that the observations made by Gokhale J. with regard to the admissibility of Verladasheins and other documents are of far reaching importance and are likely to prejudice the prosecution and will affect the future course of the proceedings adversely to the prosecution. However, apart from these Verladasheins there was other circumstantial and oral evidence on the record and more evidence was yet to be produced by the prosecution after the charge. The prosecution were doing their best to secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal. It was not passed on merits, but without any trial, with consequent failure of justice. The High Court has undoubtedly the power to interfere with such a patently illegal order of acquittal in the exercise of its revisional jurisdiction under Section 439, and direct a retrial. The High Court's order under appeal, directing the Magistrate to take de novo proceedings against the accused was not barred by the provisions of Section 403, (of the Code of 1898), the earlier proceedings taken by the Magistrate being no trial at all and the order passed therein being neither a valid discharge of the accused nor their acquittal as contemplated by Section 405(1). The Magistrate's order (to use the words of Mudholkar J. in Mohd. Safi v. State of West Bengal 1966CriLJ75 was merely an order putting a stop to these proceedings since the proceedings, ended with that order. The other contentions of the appellant, have been stated only to be rejected. 35. For all the reasons aforesaid, we have no hesitation in upholding the High Court's order under appeal, and in dismissing the appeal. 36. Since the case is very old, the Magistrate shall proceed with the case with utmost ..... X X X X Extracts X X X X X X X X Extracts X X X X
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