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TMI Blog1968 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... t is liable to be quashed? (iv) Whether Section 173(4), Criminal Procedure Code is applicable to the facts of this case? and (v) Whether the documents mentioned in the petition filed by the 1st accused on August 3, 1965 are required to be summoned under Section 94, Criminal Procedure Code? The aforementioned question were raised before the trial Magistrate by the 1st accused by means of an application but the learned Magistrate found no substance in the pleas advanced in that application and accordingly he dismissed the same as per his order dated 25-1-1966. In revision, a Division Bench of the Bombay High Court agreeing with the trial Magistrate negatived all but one of the contentions advanced on behalf of accused Nos. 1 and 2. It did not agree with the learned Magistrate that there was no need, at that stage to summon the statements of witnesses recorded by the Customs authorities in the enquiry under the Customs Act. It directed the learned Magistrate to summon those statements and curiously enough, it went further and directed him to see that the prosecution made available the copies of those statements to the accused before the commencement of the enquiry in the case. Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have directly assisted the importers in their illegal activities and are morally guilty.Since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthosed importation, they escape on a benefit of doubt." 7.Despite this finds the Assistant Collector of his complaint referred to earlier seeks to prosecute these accused persons. Hence the question is whether that prosecution is barred under Article 20(2) of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once. This Article has no direct bearing on the question at issue. Evedently those accused persons want to spell out from this Article the rule of autrefois acquit embodied in Section 403 Criminal Procedure Code. Assuming we can do that still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence. In order to get the benefit of Section 403, Criminal Procedure Code or Article 20(2), it is necessary for an accused person to established that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties of the adjudication. The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil a proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not convlusive of his innocence on the firearm charge is plain, but it undoubtedly teduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one change were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other." 9.The rule laid down in that decision was adopted by this Court in Pritam Singh v. State of Punjab - AIR 1956 S.C. 415 and again in N.R. Ghose alias Nikhil Rajan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of all the persons whom the prosecution proposes to examine as its witnesses. 12.On a plain reading of Section 173, Criminal Procedure Code, it is clear that the same is wholly inapplicable to the facts of the present case. In the instant case no report had been sent under Section 173, Criminal Procedure Code. Therefore that provision is not attracted. That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code, followed up by a final report under Section 173, Criminal Procedure Code. It may be remembered that sub-section (4) of Section 173, was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 1955, presumably because of the changes effected in the mode of trials in cases instituted on police reports. Before the Criminal Procedure Code was amended by Act 26 of 1975, there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases. Till then in all cases irrespective of the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquiries or trials was identical. In both type of case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned at the time when it was considering amendments to the Criminal Procedure Code" is without any basis. In the first place, it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly. Secondly from the history of the legislation to which reference has been made earlier, the reason for introducing Section 173(4) is clear. The learned judges of the High Court were constrained to hold that Section 173(4), Criminal Procedure Code in terms does not apply to the present case. But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case, they have directed the learned Magistrate to require the prosecution to make available to the accused, the copies of the statements recorded from the prosecution witnesses during the enquiry under the Customs act. They have purported to make that order under Section 94(1), Criminal Procedure Code which to the extent material for or present purpose reads : "Whenever any Court....... considers that production of any document or other thing is necessary or desirable for the purposes of any .... ..... X X X X Extracts X X X X X X X X Extracts X X X X
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