TMI Blog1979 (11) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... river, another person was travelling in the said truck and he claims to be the cleaner of the said truck. The panch-witnesses were also present on the spot. As the information related to the arrival of two trucks, the members of the raiding party continued to lie in wait at the same spot expecting arrival of the second truck. Their guess work also proved to be advantageous, inasmuch as, within a short time, another truck was sighted proceeding towards Bombay side. The driver was more active in respect of the second vehicle, inasmuch as, he was in no mood to surrender and wanted to make his escape good and for that purpose, he travelled a further distance in the same truck. The Customs Officers obviously realised a further potential danger and in order to arrest the further travel of the truck, they had to resort, first of all, to opening fire in the air so as to alarm the truck driver and compel him to bring the vehicle to a stand-still. This did not prove to be quite fruitful and, therefore, they had to shoot at one of the wheels of the truck, on account of which it became flat and as a further result, the vehicle had to be brought to a stand-still. The truck driver then realised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these articles came to be attached under a Common Panchnama and it is further clear from Annexure 'B' that came to be accompaniment of both the complaints, gives out the names of 14 witnesses who are identical in both the cases. The complainant is one Shri R.J. Parakh, Assistant Collector, Marine and Preventive Wing, Customs (Preventive) Collectorate, Bombay. 3. It appears from the record that in the routine course, the said two cases came to be made over by the learned Chief Metropolitan Magistrate to the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay. A statement has been made at the bar on behalf of the prosecution that several of the cases lodged under the Customs Act have been made over to this particular Court for the purpose of disposal in accordance with law and the said two cases followed suit among other cases. After those were received by the said Court of the learned Additional Metropolitan Magistrate, Criminal Case No. 131/CW/79 relating to truck No. MHT-2533 was given a fresh number being Criminal Case No. 48/CW/79, whereas, the other case, namely, Case No. 130/CW79 pertaining to truck No. MHL-3091 was numbered as Criminal Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a controversy, even in this proceeding, about the consequence that would be entailed on account of recording of such remarks. 5. In so far as the same criminal case is concerned, the chapter was closed. However, after the decision of the said case, the learned Magistrate decided to take up the other case, namely, Criminal Case No. 47/CW/79 wherein two other accused persons-Mehfoozkhan and Lalle Samsuddin figured. The prosecution at that time, perhaps, realised the potential danger of likelihood of damage being caused to their case, if the same was allowed to proceed further in the same Court, in view of the decision recorded in the earlier case by the learned Magistrate. Their apprehension was based on two-fold reason, namely, on account of the observations and the remarks recorded by the learned trial Magistrate exhibiting the perfunctory nature of the investigation and secondly, it was also felt that as the evidence was common, the witnesses were identical and the panchnama was also common, the learned Magistrate had already expressed his opinion while acquitting the accused in the earlier case. On the basis of this, it was felt by the Customs Officer and the concerning prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tropolitan Magistrate had no jurisdiction to transfer the said case under section 410 Cri.P.C. after amendment and the only permissible course open for the Customs officer was to move the Sessions Court under section 408 Cri.P.C. by way of a regular transfer application. It was further contended that provisions contained in section 410 of the Code postulate interference with the administrative orders and when a transfer is asked for on a judicial ground, then the Chief Metropolitan Magistrate has no powers. On the basis of these contentions, it was ultimately prayed that the application for transfer should be rejected. 6. After hearing the concerned parties, the learned C.M.M. has recorded an elaborate order dated 16th July, 1979 repelling all the contentions raised on behalf of the respondents and be recorded a clear finding that it was per-eminently a proper case for transfer in view of the facts as also in view of the remarks made by the learned trial Magistrate. In keeping with these findings, the learned C.M.M. passed an order, as--- Cases No. 47/CW/79 is withdrawn from the file of the learned Additional Chief Metropolitan Magistrate, 40th Court and kept for hearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure, 1973, all the Additional Chief Metropolitan Magistrates of Bombay, appointed under section 17(2) of the said Code, shall be subordinate to the Chief Metropolitan Magistrate, Bombay and their subordination shall be deemed to be of the same kind and extent as the subordination of the Metropolitan Magistrate, Bombay to the Chief Metropolitan Magistrate, Bombay under sub-section (1) of section 19 of the said Code. In view of this direction, Shri Mehta has fairly conceded that he had initially opposed it mainly resting on the assumption that the Additional C.M.Ms. are not subordinates to the C.M.M. In view of the clear dicta incorporated in this direction, the point also does not survive on merits. 8. The second and equally important plank adopted by Shri Mehta rests entirely on the interpretation of the various provisions of the Code. In substance, he has submitted that under section 410, a transfer application is not maintainable before the Chief Metropolitan Magistrate, even assuming that the Addl. C.M.M. is subordinate to him. It was further, inter alia, submitted that section 410 governs orders entirely and exactly of administrative nature and only su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glaring and the situation is so unique that there is no escape from the conclusion that it is not desirable that the same Magistrate should conduct both the cases. As stated earlier, there was an intimation received by the Customs Officer that two trucks were expected to enter the limits of greater Bombay from Kolhapur carrying contraband goods and they were lying in wait near the New Bombay Bridge. Initially, one truck arrived which was intercepted which contained ostensibly certain sugar bags and within a short span of time, another truck followed, though the driver of the said other truck was in a more chivalrous mood, and therefore, he had to be intercepted even at the cost of resorting to same violence, which was permissible in law. Both the trucks were searched in the presence of the Panchas at the godown where the sugar bags were unloaded. It is further revealed that each truck contained 22 tins and each tin contained several wrist watches, rolls of sarees material and other textiles, as detailed in the panchnama. One truck contained contraband goods to the tune of Rs. 18,43,898/- while the other contained goods worth Rs. 16,42,713/-. The concerned Customs Officers had reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the time in question. 8) The second truck that was halted near the Golf Club at Chembur was also brought back to the New Bombay where the first truck was intercepted and stopped, and thereafter, both the trucks were together taken to the Customs godown. 9) Both the trucks ostensibly were loaded with sugar bags and the pattern of loading of merchandise was common to both the trucks. 10) After unloading of the sugar begs, both the trucks revealed existence of 22 tins and one suit case in each truck. 11) Both the trucks contained more or less similar contraband articles, such as, wrist watches, watch-parts and textiles and the value of such goods in both the trucks was more or less to tune of Rs. 16,00 lacs to Rs. 18,00 lacs and odd. 12) Articles seized from both the trucks were attached under a common panchnama. 13) Statements of four persons were recorded by the same officer, namely, Shri Pawar. 14) Sanction was accorded by the Assistant Collector in both the cases, on the same day i.e. on 3-3-79. 15) Both the complaints came to be lodged on the same day, i.e. on 19-3-79 in the Court of the Chief Metropolitan Magistrate. 16) Both the complaints alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior officer like Parakh was helpless in apprehending real smugglers and was required to be satisfied by prosecuting mere carriers in this case. In my opinion, no real and genuine effort is made by investigating officers to find out the real smugglers behind the curtain. 13. No doubt, Shri Mehta to some extent is justified that the application filed by the Customs Officer is not happily worded. In fact, he criticised the same by submitting that no valid ground has been made out in the said application. In para 5 of the said application, it has been specifically mentioned as--- I say that the witnesses examined and their evidence in Case No. 47/CW/79 now pending before the 40th Court are identical to that in Case No. 48/CW/79. already decided. The learned Magistrate, while delivering the judgment, was also......pleased to pass certain remarks on the investigation. In the ultimate para No. 6, it has been mentioned as- In the circumstances, the Department desires that the second case, viz., Case No. 47/CW/79. pending in the Court No. 40 at Girgaum be transferred to any other Court. Shri Mehta, therefore, submitted that it was only by way of desire of the concerned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exion would have been changed and may be, there would not have been a proper ground in existence for the transfer of the criminal case. I am, therefore, relying more on the other ground of identical nature of evidence that is sought to be led in both the cases, rather than, the remarks passed by the learned trial Magistrate. As observed earlier, there are several common features and the common pattern exhibited in the course of investigation, the defence taken and the common nature of evidence in both the cases and, therefore, in the fitness of things, when the learned trial Magistrate has committed himself to a particular view as expressed in the earlier judgment, it would be proper to withdraw the second case and make it over to another Court for disposal, in accordance with law. This would save embarrassment to the learned trial Magistrate himself and it would also be expedient in the interest of justice. Here, it would not be out of place to observe that the learned trial Magistrate was persuaded to uphold the defence contention that the accused were mere carriers, and that no direct nexus was established with the accused, and it was thereafter that the learned trial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inkling or indication pattern of evidence in both the cases would be same. This so-called justification about the learned Magistrate, on the part of the learned defence Counsel, is hardly acceptable. It cannot be overlooked that in the earlier case that was decided by the learned trial Magistrate, it is specifically mentioned in the complaint that two trucks had arrived, giving different numbers and it was also indicated that two separate cases are being lodged in respect of the said two trucks. It is, therefore, absolutely an untenable submission to make that the learned trial Magistrate had not even an inkling about the common pattern of evidence. There is no escape from the conclusion that the learned trial Magistrate must have been fully aware of it from recitals in the complaint, as well as the, evidence adduced before him. 15. In this view of the matter, on facts, I have absolutely no reservation to observe that this case will have to be recalled or withdrawn from the file of the trial Magistrate, as has been rightly done by the learned C.M.M. 16. This takes me to the next plank of the petitioners contention relating to the powers of the C.M.M vis-a-vis, the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area. Section 6 relates to constitution of Criminal Court such as, Court of Session, Judicial Magistrate and Metropolitan Magistrate. Section 8 refers to the Metropolitan area. Court of Session as per section 9 comprises of Sessions Judge. Additional Sessions Judge or Assistant Session Judge. Section 10 relates to the sub-ordination of Assistant Session Judges. 20. We may then usefully to other provisions relating to Chief Judicial Magistrate and Chief Metropolitan Magistrate which would be quite germane to the proceeding. Thus, Chief Judicial Magistrate is appointed in every district under section 12. The same applies to the post of Additional Chief Judicial Magistrate. Correspondingly, Chief Metropolitan Magistrate is appointed under section 17(1) while Additional Chief Metropolitan Magistrate may be appointed under section 17(2). Section 15(1) contemplates that every Chief Judicial Magistrate shall be sub-ordinate to the Sessions Judge, and every other Judicial Magistrate shall subject to the general control of the Sessions Judge be sub-ordinate to the Chief Judicial Magistrate. Correspondingly, section 19(1) contemplates that the C.M.M. and Additional C.M.M. shall be sub-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de as to the successor-in-office of J.M.C.J.M. can try a person below 16 years as the presiding Judge of Juvenile Court under section 27, he can inflict sentence upto a term of seven years and impose unlimited time, whereas, the J.M. has limit upto three years and 1000/-, he can direct production of any article, parcel from postal or telegraph authorities under section 92; he can release under section 123(1) a person who is imprisoned in failure to give security; under section 191, he can transfer a case to the file of another Magistrate; he can make over any case under section 192(2) even after taking cognizance; he can transfer a case and try it himself under section 322. These are some of the provisions indicating the extent and dimensions of the powers vested in C.J.M. 23. Important and relevant direction have been issued by High Court in exercise of its powers under section 17(2) of the Code that Addl. C.M.M. shall exercise all the powers of the C.M.M under the Code except the powers under section 19(3) and section 410. As stated, the first provision relates to distribution of work to Metropolitan Magistrate, while the second provision relates to withdrawal of recalling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any other Magistrate and may inquire into or try such case himself. The Supreme Court can transfer a case or appeal from one High Court to another High Court and from one Criminal Court to another Court, whereas, the High Court can transfer a case or appeal from one Criminal Court sub-ordinate to its authority any such Criminal Court of equal or superior jurisdiction, or commit a case to the Court of Session or get the appeal transferred to itself for being disposed of. Likewise, Sessions Judge can transfer a case from one Criminal Court to another Criminal Court only in his Sessions Division. In so far as these three provisions are concerned, the act is denoted by the word 'transfer'. In contrast to this, sections 409 and 410 do not employ the same word, but instead use the word 'withdraw' or 'recall'. On the basis of this distinction, Shri Mehta submitted that section 410 does not contemplate a transfer as such or there was no difficulty for the legislature to use the word 'transfer' in that provision also. The other plank of his submission is that by the employment of the word 'withdrawal' or 'recalling, and non-employment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t context that under section 409. not only a case but an appeal is also indicated which could be disposed of by the C.J.M. It is also worth nothing that criminal cases not triable by the Sessions Court but by the Magistrate are either in the Court of C.J.M. or are directly filed in the Court of the concerned Magistrate-Judicial Magistrate or Metropolitan Magistrate. That means, the Sessions Judge himself does not make over any cases to the Judicial Magistrate or the Metropolitan Magistrate. As in contrast to this, Sessions case on commitment, always go to the file of the Sessions Judge and it is the Sessions Judge who thereafter makes over such cases either to the Additional Sessions Judge or the Assistant Sessions Judge. The same applies to criminal appeals filed In the Sessions Court. Therefore, it is in this context that the words in section 409 are used to mean that a Sessions Judge can withdraw or recall any case or appeal made over by him to the Additional Sessions Judge or the Assistant Sessions Judge. The only qualification being that in case of Additional Sessions Judge, the case or the appeal should not have commenced hearing. I have also observed earlier that under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate and correspondingly, under section 19, every Metropolitan Magistrate subject to the general control of the Sessions Judge, is sub-ordinate to the Chief Metropolitan Magistrate. Under the direction referred to above issued by the High Court in exercise of the powers under section 19(2), the Additional Chief Metropolitan Magistrates are also deemed to be subordinate to the Chief Metropolitan Magistrate. I have also indicated that by reason of the said direction referred to earlier, an Additional C.M.M. cannot exercise powers under section 19(3) and section 410 of the Code. It would thus be clear that sub-ordination even of the Additional C.M.Ms. to the C.M.M. is defined and the limitation of the powers are also defined. Powers under section 410 are totally taken out of the purview of the Additional C.M.Ms. under section 15(2), the C.J.M. can distribute the business and for that purposes make the rules consistent with the Code and correspondingly, under section 19(3), the C.M.M. can make rules regarding such distribution of business to Metropolitan Magistrates including Additional Chief Magistrate. This power is also vested exclusively in C.M.M. under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this has not been specifically mentioned in section 410. However, the said omission is of no consequence, inasmuch as, it is basic that a Court can be moved by any agency and the aggrieved party always has a right to move the concerned Court for withdrawal of the case. Just as that, even the lower Court itself can approach the C.M.M. with a request to recall the case if it deems proper and lastly, the C.M.M. obviously can take a sou motu action if it is made to appear to him necessary through any source, it is then equally true that the provisions contained in sub-clauses (3) to (7) and (9) of section 407 though made applicable to section 408, have no reference to section 410. However, that also would hardly make any difference, inasmuch as, those sub-clauses deal with the procedure and these are the steps for the disposal of the application on merits. It is again a basic principle that if an order is to be passed against a party, then, that party should be heard beforehand and, therefore, even in the absence of any specific provision in section 410, a notice can be issued to the concerned party on the ground of principles of natural justice. 26. The same considerations wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sessions Court and therefore, in districts, the C.J.M. is clothed with certain powers in that context. In the metropolitan area, a similar power is conferred on the C.M.M., so that, the burden on the Sessions Court can be reduced to some extent. It is also rightly contended by Shri Barday and Shri Gupte that before the amendment of 1973 to the Code, for years together a practice was being followed of moving the Chief Metropolitan Magistrate (Chief Presidency Magistrate as he was then called), to hear and dispose of the regular transfer applications under section 528(2) of the old Code, corresponding to section 410 of the new Code. The idea appears to be that in a Metropolitan area where there is a vast field of litigation, a litigant need not be driven to approach previously the High Court as it was the only other forum then and at present, the Sessions Court in the first instance, by way of transfer application, which would be expensive as welt as time consuming and, therefore, the Legislature thought that such a remedy should be within the reach of an ordinary litigant and for that purpose, it must have been contemplated that a litigant can move even the Chief Metropolitan Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer by District Magistrate under section 528 was held to be permissible, though issuance of notice was said to be advisable. It was also held therein that anyone could bring to the notice of the District Magistrate the facts requiring transfer of a case. This is notwithstanding the fact that section 528 relating to the powers of the District Magistrate, does not explicitly indicate the mode by which the authority can be approached. It is equally worth-nothing that in many of these and other cases, the transfer was made either by District Magistrate or by Chief Presidency Magistrate not on an administrative ground only, but on a judicial ground as well, and the same has not been disturbed on the ground that both these authorities had no such power. However, inasmuch as these and other authorities have no direct bearing on the point involved, though inferentially those are certainly relevant, no further discussion in that respect is necessary. 33. However, reliance is rightly placed on the ratio of a decision of this Court in (Re : P.D. Shamdasani)5, 32 B.LR. 1128. Despite the fact that the point raised therein was slightly in different context, yet, the same can be-usefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery initiating prosecution in a Court of law, cannot have a grievance about the forum, and further, the State can normally have no grievance against any Court. For that purpose, reliance is placed on State of U.P. v. Ram Bahadur Singh AIR 1957 All 278. Therein, a question was posed whether the State can file a transfer application under section 526 of the Code. However, significantly the question posed remained unanswered. The discussion mostly applied to the question as to who would be the proper person to make an affidavit in support of the application on behalf of the State. The judgment then proceeds to consider other points on merits. This decision, therefore, is of no assistance to the learned counsel in support of the view propagated by him. In State v. Ram Sia AIR 1950 All 727, a similar question was posed and answered in the affirmative that the State can file a transfer application, but was qualified by cautioning that the State should be slow. It is obvious that the State is one of the vital parties to the proceeding and as such, it has got to be vigilant in protecting the interest of justice and its own-self, as also to ensure fair administration of justice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
