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TMI Blog2022 (7) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Court below. 3.The gist of the allegations made in the complaint is that the third and fourth accused, in the guise of importing electronic goods viz., mobile phones etc., had actually smuggled gold bars, inside the cartons and the first accused, who is running a security agency, authorized by the Airports Authority of India, with full knowledge of the said illegality, through his employees viz., the second accused/K.Francis and the fifth accused/P.Karunanithi, had help in bringing the gold bars in the cover of mobile phones from the Cargo shed inside the Airport out of the customs frontier and thus all the accused have colluded, conspired and committed the 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improper and his confiscation is concerned, the corresponding provision for levy of penalty Section 112(b) will follow. The Appellate Authority by its finding in paragraph No.19.1 of the Judgment has again held that the penalty under Section 112(b) is unsustainable as against the accused/appellant and as a matter of fact, ordered that the penalty should be imposed as under Section 112(a). Therefore, this penalty has also been found to be unsustainable on merit by the Appellate Authority and the accused cannot be prosecuted for the offense under Section 135(1)(b) also. 9.Therefore, the penalty for both the offenses alleged as against the Accused No. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, in Radheshyam Kejiriwal's case( cited supra), the learned counsel for the complainant would submit that atleast in respect of the allegation under Section 135(1)(b), the findings of the Appellate Authority was based on the fact that the confiscation proceedings were not initiated in respect of earlier batches and therefore, there was no finding on merits and thus, the decision would not bind the Criminal Court. Therefore, the prima facie offense under Section 135(1)(b) is made out. Since the Accused No. 1 through his accomplices have helped in the smuggling of the gold bars and the Appellate Authority as well as this Court 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 object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 CrPC. Under Section 201 CrPC, if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper court or direct the complainant to a proper court. 27. Section 202 CrPC deals with the postponement of issue of process. Under sub-section (1), he may direct the investigation to be made by the police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517, had an occasion to consider the question as to when the learned Magistrate can be said to have been taken cognizance of the offense after considering the entire law in the subject. The Hon'ble Supreme Court, has held in that case, in paragraph No.34, which reads as follows:- "34. The word "cognizance" occurring in various sections in the Code is a word of wide import. It embraces within itself all powers and authority in exercise of jurisdiction and taking of authoritative notice of the allegations made 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 compla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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