TMI Blog2007 (8) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... ity exercising power under proviso to Section 127H of the Act, which shall remain subject to other provisions of Section 127H of the Act. - 208 of 2007 - - - Dated:- 8-8-2007 - M.M. Kumar and Ajay Kumar Mittal, JJ. [Judgment per : M.M. Kumar, J.]. - A short question raised in this petition filed under Article 226 of the Constitution is "whether 'proceedings for prosecution for any such offence' within the meaning of Section 127H of the Customs Act, 1962 (for brevity, 'the Act'), are deemed to have commenced on the date of registration of FIR or when challan is presented before the Magistrate". The question emerges from order dated 14-9-2006 (P-5), passed by the Settlement Commission, Customs and Central Excise, Mumbai-respondent No. 3 (for brevity, 'the Settlement Commission'), on an application filed by the petitioner along with others under Section 127B of the Act. The Settlement Commission has declined the prayer of the petitioner for grant of immunity from prosecution by concluding that proceedings for prosecution have already commenced when FIR against the petitioner were registered. 2.Facts in brief which emerge from the order of the Settlement Commission and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application under Section 127B of the Act before the Settlement Commission-respondent No. 3, admitting full duty liability and prayed for immunity from prosecution, fine, interest and penalty. The charge sheets after completion of investigation in the aforementioned FIRs were submitted on 6-2-2006 and 27-3-2006. The Settlement Commission partly accepted the application filed by the petitioner vide his order dated 14-9-2006 (P-5) and refused to grant immunity from prosecution under proviso to Section 127H of the Act. The order of the Settlement Commission as reflected in para 9 in so far it is relevant is extracted below, which reads as under :- "......this case is not fit for granting immunity from prosecution since in terms of proviso (1) of Section 127H of the Act proceedings for the prosecution was instituted right before the date (31-1-2006) of receipt of the application for settlement, as concerned FIRs were filed before JMIC/Ludhiana on May 2004 and 24-8-2004. The wordings in the Finance Act and decisions relied upon by the ld. Advocate relate to an expression, "……….where prosecution for any offence..... has been instituted....." whereas on the other hand, the proviso ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under Section 127B". Thus the wordings are entirely different in the Finance Act, 1998 and emphasis is on institution of prosecution whereas in the said Customs Act, emphasis is on institution of proceeding for prosecution. In the given case, the proceedings for the prosecution have been instituted before the date of filing application for settlement before the Commission (Emphasis supplied)." 5.Mr. Jagmohan Bansal, learned Counsel for the petitioner has submitted that FIR No. 88, dated 12-7-2004 and FIR No. 22, dated 3-4-2005, were registered at Police Station Division No. 2, Ludhiana, under various provisions of the IPC. The petitioner was also arrested on 4-3-2005. An application under Section 127B of the Act was filed on 31-1-2006 much before the presentation of challans. Therefore, he has emphasised that the expression 'proceedings for prosecution for any such offence' as used in proviso to Section 127H of the Act must be construed to mean as to when challan is presented as mere lodging of FIR cannot be treated as proceedings for prosecution. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that regard, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court in the case of Bhagwan Singh v. State of M.P, (2002) 4 SCC 85. He has also placed reliance on the language used by Section 154 of the Code, which provides that registration of FIR against an accused result into setting in motion of criminal law. Therefore, it has been asserted that the date of filing of an FIR is relevant date for the purpose of granting immunity to an accused under proviso to Section 127H of the Act. To substantiate the argument, learned counsel has mentioned that the petitioner was arrested on 4-3-2005, which proves that proceedings under the Code had already been set in motion before filing of the application. Mr. Kaushik has also placed reliance on the judgment of Hon'ble the Supreme Court in the case of Ashirvad Enterprises (supra) to argue that prosecution in the present case is deemed to have been commenced on the date of lodging of FIR and not on the date when the challan was presented. 7.We have thoughtfully considered the submissions made by learned counsel for the parties, examined the record with their assistance and are of the view that this petition deserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued to mean that once an FIR is registered then it would be deemed that proceedings for prosecution for any offence have been instituted. In that regard reference may be made to the procedure laid down in the Code. After lodging of an FIR, investigation is to be undertaken by the competent officer. The provisions of Sections 155 to 176 of the Code deal with detailed procedure. In cases where the investigation undertaken by the police results into presentation of challan a report under Section 173(2) of the Code is forwarded to the Magistrate, who is empowered to take cognisance of the offence. However, in other cases where there is no sufficient evidence, the accused has to be released as per the provisions of Section 169 of the Code. It is further significant to notice that even the police report forwarded to the Magistrate to take cognisance of the offence is not binding on the Magistrate. If the Magistrate after taking cognisance comes to a conclusion that the police report showing no evidence is unacceptable then the Magistrate is still empowered to issue process asking the accused to appear. In other words, the police do not enjoy the final word which has been left to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the registering of a case on the basis of first information report made, amounts to institution of prosecution." The above discussion establishes following conclusions : (a) Mere registration of FIR does not necessarily result into initiation of proceedings for prosecution. It is only on submission of a report under Section 169 or Section 173(2) of the Code that Magistrate takes cognizance and may proceed in accordance with acceptable lawful material. The last word is thus with the Magistrate and not with the police. It may or may not result in initiation of proceedings for prosecution. Therefore, Magistrate may or may not accept the report of the police. (b) After Magistrate takes cognizance and proceedings for prosecution are initiated in respect of criminal offences of cognizable nature then express permission of the Magistrate would be required. Therefore, it would certainly be beyond the domain of Settlement Commission to grant immunity after proceeding for prosecution has commenced. It is only before that stage alone that the Settlement Commission would be competent to grant immunity within the meaning of proviso to Section 127H of the Act. The underlyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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