TMI Blog1968 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded on the erroneous basis that the accused will not have a fair trail unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of cases and result in waste of public money and time as has happened in this case. - 15 and 35 of 1967 - - - Dated:- 16-10-1968 - J.C. Shah, V. Ramaswami, G.K. Mitter, K.S. Hegde and A.N. Grover, JJ. [Judgment per : K.S. Hegde, J.]. - These appeals by certificate arise from the decision of the High Court of Bombay in Criminal Revision Application No. 238 of 1966 wherein the following questions of law arise for decision : (i) Whether the prosecution from which these Criminal Revision Petitions arose is barred under Article 20(2) of the Constitution as against accused Nos. 1 and 2 in that case by reason of the decision of the Collector of Customs in the proceedings under the Sea Customs Act? (ii) Whether under any circumstance the finding of the Collector of Customs that the 1st and 2nd accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of smuggling foreign goods into India and in pursuance of that conspiracy they had smuggled several items of foreign goods in the years 1959 and 1960. 4.In that connection an enquiry was held by the Customs authorities. In the course of the enquiry some of the goods said to have been smuggled were seized. After the close of the enquiry those goods were ordered to be confiscated. In addition penalty was imposed on some of the accused. Thereafter on February 19, 1965, the Assistant Collector of Customs, Bombay after obtaining the required sanction of the Government filed a complaint against five persons including the appellants in Criminal Appeal No. 35 of 1967 (accused Nos. 1 and 2 in the case) under Section 120B, I.P.C. read with Clauses (37), (75), (76) and (81) of Section 167 of the Sea Customs Act, 1878 (Act VIII of 1878) as well as under Section 5 of the Imports and Exports (Control) Act, 1947. Before the commencement of the enquiry in that complaint, the Ist accused filed on August 3, 1965, the application mentioned above. 5.Now we shall proceed to examine the contentions set out earlier. 6.Reliance on Article 20(2) is placed under the following circumstances. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under Section 167 of the Sea Customs Act and an order for confiscation of goods had been passed, was subsequently prosecuted before a criminal court for an offence under Section 23 of the Foreign Exchange Regulation Act in respect of the same act, the proceeding before the Sea Customs authorities was not a "prosecution" and the order for confiscation was not a "punishment" inflicted by a Court or judicial Tribunal within the meaning of Article 20(2) of the Constitution and hence his subsequent prosecution was not barred. The said rule was reiterated in Thomas Dana v. State of Punjab - (1959) SCR 274 and in severl a other cases. 8.We shall not take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppeld in the present prosecution. The issue estoppel rule is but a facet of the doctrine of autrefois acquit. In Sambasivan v. Public Prosecutor, Fede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in filing the complaint is satisfactorily explained. That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint. 11.We also see no merit in the contention that the accused in this case are entitled to the benefit of Section 173(4), Criminal Procedure Code which provides that before the commencement of the enquiry or trial the officer-in-charge of the police station who forwards a report under Section 173, Criminal Procedure Code, should furnished or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Section 173(1), Criminal Procedure Code of the first information report recorded under Section 154, Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation if any, of the accused as he thinks necessary and after giving the prosecuting and the accused an opportunity of being heard considers the charge against the accused to be groundless he shall discharge him but if be is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case which he is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against him. Under the procedure prescribed in Section 251(A), Criminal Procedure Code but for the facility provided to him under Section 173(4) of that Code an accused persons would have been greatly handicapped in his defence.But in a case instituted on a complaint, like the one before us and governed by Sections 252 to 259 of the Criminal Procedure Code, no such difficulty arises. Therein the position is as it was before the amendment of the Criminal Procedure Code in 1955. 13.We are unable to agree with the learned Judges of the High Court that the legislature did not make available the benefit of Section 173(4), Criminal Procedure Code in cases instituted otherwise than on police reports by oversight. The observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion of the learned Magistrate. Whether a particular document should be summoned or not is essentially in the discretion of the trial court. In the instant case the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs authorities sand shall make available to the defence Counsel the statement of the concerned witness as and when he is examined. In view of that assurance, the leaner Magistrate observed in this order : "The recording of the prosecution evidence is yet commence in this case and at present there are not materials before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As state dat the outset, the learned Special Prosecutor has given an under taking that he would produce all the relevant statements and documents at the proper time in the course of the hearing of the case. The request made for the issue of the summons under Section 94, Criminal Procedure Code is also omnibus." The reasons given by the learned Magistrate ins support ..... X X X X Extracts X X X X X X X X Extracts X X X X
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