TMI Blog2022 (7) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offenses punishable under Section 132, 135 of Customs Act, 1962 and therefore, the private complaint was filed. 4.When the private complaint was adjourned to be listed under the caption as to be check and call on , even before recording of the sworn statement and the complaint was taken on file and at the diary number stage itself, the Accused No. 1 had filed an application for dropping proceedings and the same was allowed, against which the present revision is filed. This complaint was presented before the Special Court for Customs, on 31.12.2019 and it was adjourned as check and call on on 04.01.2020. Again, on 04.01.2020, an endorsement was made that back file from the Judicial Magistrate has not reached and it is adjourned for call on, on 13.01.2020. From then onwards, the case has been adjourned under the same caption from time to time. On 06.11.2020, the accused No.1 appeared before the Court and filed the present petition at this stage. 5.The contentions raised by the Accused No.1 in the above application is that the Hon'ble Supreme Court of India, in Radheshyam Kejriwal Vs. State of West Bengal and Anr. (2011)3 SCC 581, has held that once the Appellate Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 having been dealt with on merits by the Appellate Authority and having become the final, by virtue of the dictum of the Hon'ble Supreme Court of India, in Radheshyam Kejriwal's case (cited supra), the charge against the accused is groundless and therefore, he sought for dropping all further proceedings. 10.Apart from the above grounds, it is also the further case of the Accused No. 1 that for the purpose of prosecution, sanction has been obtained only from the Commissioner and as per circulars, since the case is investigated by the Directorate of Revenue Intelligence, sanction has to be obtained from the Director General also and therefore, for want of sanction, as per the circulars of the department, the proceedings are liable to be dropped. 11.This apart, it is further contention of the Accused No. 1 that the entire prosecution is launched against the accused only based on retracted confession and there is evidence on record to demonstrate duress at the time of extracting confession. Therefore, there is no material at all to proceed the case against the Accused No. 1 and therefore, the further proceedings should be dropped. 12.The learned Magistrate cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the Civil Miscellaneous Appeal preferred before this Court have not upturned the findings regarding the said omissions and commissions and as a matter of fact the said delinquencies have been confirmed. Therefore, the learned Magistrate erred in dropping the proceedings against the Accused No.1. 15.I have considered the rival submissions made on behalf of both sides and before deciding to consider the question as to whether the accused had made out a case to drop all further proceedings against him, it is necessary to consider the preliminary objection made on behalf of the petitioner, in this revision as to 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. 16.The offense complained is punishable with a maximum punishment of Seven years and therefore, this is a warrant case otherwise than by police report. Therfore, 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. It is nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 202(1)(a) CrPC, the Magistrate cannot give such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of Session. Under Section 202(1)(b) CrPC, no such direction can be given where the complaint has been made by the court. 28. Under Section 203 CrPC, the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 CrPC, can dismiss the complaint if he finds that there is no sufficient ground for proceeding. 29. On the other hand, if the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 CrPC. He can issue summons for the attendance of the accused and in a warrant case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-sections (2), (3), (4) and (5) of Section 204 CrPC are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 CrPC normally comes to an end, because the next stage is only the appearance of the accused before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the complaint or a police report or any information received that an offence has been committed. In the context of Sections 200, 202 and 203, the expression taking cognizance has been used in the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application of judicial mind. It does not necessarily mean issuance of process. (Emphasis supplied) 20.Therefore, 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. 21.It is in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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