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B.C. Khatri Vs. Peshuram Chanduram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 242 of 1966
Judge
Reported inAIR1968Bom39; (1967)69BOMLR636; 1968CriLJ27
ActsBombay Prohibition Act, 1949 - Sections 104; Code of Criminal Procedure (CrPC) , 1898 - Sections 439, 202, 190(1) and 561-A
AppellantB.C. Khatri
RespondentPeshuram Chanduram and anr.
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateA.S. Bobde and ;B. A. Udhoji, Advs., ;C.S. Dharmadhikari, Asst. Govt. Pleader, for State
Excerpt:
.....found in section 345 of the code of criminal procedure is a good illustration of this matter. the accused named in the complaint may have a good defence at the trial and it may be possible for the accused to establish that the complaint was act while issuing a process to the accused on the material before him at that time without considering any possible defence and at that time the accused is not in fact entitled to be heard for showing that the complaint does not show any prima facie case. it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction'.there is no doubt that in an exceptional case the high court has got the inherent jurisdiction to quash appropriate proceedings, but it must be shown that it is..........f. l. ii to sell foreign liquor and the said licence stands in the name of b. c. khatri, partner, sind medical stores, amravati.(2) the accused is one of the partner of messrs. sind medical stores, amravati.(3) the accused made an application to the collector, amravathi, at the time of renewing his licence f.l. ii preying that the names of the other partners of the sind medical stores should also be added in the licence to be issued for the year 1966-67 but this prayer was rejected.(4) the accused obtained the supply of foreign liquor from the sind medical stores who is not an approved supplier under rule 30 of the bombay foreign liquor rules, 1953, framed in exercise of the powers conferred by section 143 of the bombay prohibition act, 1949.(5) sind medical stores, amravathi is not the.....
Judgment:
ORDER

1. This revision application has been filed by B. C. Khatri who was named as an accused in the complaint field by Peshuram, son of Chanduram Sindhi for an offence under section 77 read with section 90 of the Bombay Prohibition Act No. XXV of 1949. The complaint was filed on these allegations:

(1) the accused holds a vendor's licence in Form F. L. II to sell foreign liquor and the said licence stands in the name of B. C. Khatri, Partner, Sind Medical Stores, Amravati.

(2) The accused is one of the partner of Messrs. Sind Medical Stores, Amravati.

(3) The accused made an application to the Collector, Amravathi, at the time of renewing his licence F.L. II preying that the names of the other partners of the Sind Medical Stores should also be added in the licence to be issued for the year 1966-67 but this prayer was rejected.

(4) The accused obtained the supply of foreign liquor from the Sind Medical Stores who is not an approved supplier under rule 30 of the Bombay Foreign Liquor Rules, 1953, framed in exercise of the powers conferred by section 143 of the Bombay Prohibition Act, 1949.

(5) Sind Medical Stores, Amravathi is not the holder of a licence to sell foreign liquor or to receive consignments of foreign liquor from Bombay by Railway.

(6) The accused is obtaining foreign liquor otherwise than under a valid transport pass in Form F. L. 1A as the consignments so obtained are not obtained under a pass in the name of B. C. Khatri, Amravati.

(7) Foreign liquor so obtained by the accused from a supplier who is not approved is stored and sold by the accused at his licensed premises in contravention of rule 31 of the aforesaid rules.

(8) On 20-4-1966 the accused took delivery through his authorised agent of 7 cases of foreign liquor from the railway station, Amravathi and stored them for sale in his licensed premises at City Library Road Amravathi, even though the consignment was booked in the name of Sind Medical Stores.

(9) Besides this the accused has from time to time received several other consignments of foreign liquor in his own name while other consignments have been received by Sind Medical Stores, Amravathi, Which were ultimately taken by the accused and were stored and sold by him in his licensed premises.

(2) On these allegations the complainant urged that all these acts of the accused amounted to contravention of the Bombay Foreign Liquor Rules, 1953, and was an offence punishable under section 77 read with section 90 of the Bombay Prohibition Act and prayed that the accused should be punished according to law.

(3) In support of the complaint, a statement of the complainant was recorded by the learned Magistrate before whom the complaint was filed in order to verify the truth or falsehood of the complaint made by the complainant. The statement was recorded on 30th of April 1966, this is, on the same day the complaint was filed. In this verified statement, the complainant has stated on oath that the licence to sell foreign liquor has been granted to B. C. Khatri and he has his shop on the City Library Road at Amravathi. The accused is the partner of the Sind Medical Stores and in March 1966 he made an application was rejected. He has further stated that on 20-4-1966 a consignment of 7 cases of foreign liquor was received in the name of the Sind Medical Stores and the Sind Medical Stores was not authorised to either store or sell the foreign liquor and hence the accused took those 7 cases of liquor into his shop and started selling the same.

(4) After this, the learned Magistrate on the same day sent the complaint to the P.S.I., City Kotwali, for enquiry under section 202 of the Code of Criminal Procedure and awaited the report till 11th of May 1966. On the 11th May 1966, the complainant was present with his counsel but the enquiry report was not received form the P.S.I. On perusing the said report the learned Magistrate ordered the issue of process against the accused for an offence under section 77 of the Bombay Prohibition Act and fixed the case for the appearance of the accused on 27th May 1966. The order-sheet dated 27th May 1966 shows that the accused was absent on that day though duly served, but later on he appeared for being released on personal recognizance bond. It appears that in the meantime, the accused filed a revision application before the Sessions Judge and the further proceedings in the case were stayed.

(5) While submitting the report in the enquiry under section 202 of the Code of Criminal Procedure, the P.S.I, seized certain papers from the accused as well as from the Station Master, Railway Station, Amravati. The documents seized by the police are, a pass for transport duty-paid foreign liquor which is in Form F.L. 1A, the vendor's licence for the sale of liquor No. F.L. 2/66-67 in the name of B. C. Khatri, Partner Sind Medical Stores, Amravati, and a copy of the railway receipt of the Central Railway in which the name of the consignor is shown as Trade Links Private Limited and the consignee is the Sind Medical Stores. The parcel was booked from Bombay to Amravati. These were the only papers in the proceedings on the date the order was passed by the learned Magistrate on 12th of May 1966 while issuing the process against the accused for the offence under section 77 of the Bombay Prohibition Act.

(6) Before the learned Addl. Sessions Judge, it was contended on behalf of the accused that the order passed by the learned Magistrate on 12th of May 1966 issuing process against the accused was not legal and proper and the proceedings before the learned Magistrate should be quashed as not even a prima facie case has been made out either on the complaint or the verified statement of the complainant or any other documents on record. It was contended that the complaint, as is filed, does not make out any case against the accused. Since the Consignment being in the name of Sind Medical Stores and the accused being a partner of the Sind Medical Stores, in fact Sind Medical Stores was not a different person or different entity and the goods were in fact consigned to the licence holder and as such, the supply to the accused, licence-holder, was direct from the approved supplier, namely, the Trade Links private Limited, Bombay, and the Sind Medical Stores could not be termed as a supplier. It was also contended that the transport pass and the invoice sent by the Trade Links Private Limited, mentioned the licence number of the accused, which would also indicate that the goods were sent by Trade Links Private Limited to the accused as a partner of the Sind Medical Stores who is the licence-holder of foreign liquor. The licence number for the sale of foreign liquor in the name of B. C. Khatri as partner of Sind Medical Stores for the year 1965-66 was V.L.F. L-2/65-66. This licence was valid till 31st of March 1966 and a further renewed licence was granted to the accused for the period 1-4-1966 to 30-6-1966 and the number of that new licence is V.L.F.L 2/66-67. The transport pass for sending liquor from Bombay to Amravati was issued on 13-4-1966 and the delivery of the consignment was actually taken at Amravati on the 20th of April 1966. It was hence contended that though the name of the consignee was shown as Sind Medical Stores, in effect, it was meant for the licence-holder who is described as B. C. Khatri, Partner of the Sind Medical Stores, which in fact is the name as the Sind Medical Stores.

(7) Another contention that was raised before the learned Magistrate was that a complaint was not maintainable at the instance of a private person and the learned Magistrate ought not to have taken cognizance of the offence on a complaint made by the present complainant. The revision application was dismissed by the learned Additional Sessions Judge, Amravati, after fully hearing both the parties.

(8) More or less, the same grounds are urged before me by Mr. Manohar, the learned counsel for the accused. I would dispose of in the beginning the point regarding the maintain-ability of the complaint at the instance of a private person, as the complainant is. Chapter IV of the Bombay Prohibition Act, 1949, Act No. XXV of 1949, deals with Control, Regulation and Exemptions. Section 34 authorises the State Government by rules or an order in writing to authorise an officer to grant a vendor's licence for the sake if foreign liquor and sub-section (2) thereof sets out the conditions on which the vendor's licence is to be granted to a person for the sale of foreign liquor. The licences are granted in Form F. L. II which has been prescribed in Rules framed under the Act and Clause 3 of the said licence prohibits the vendor from selling, transferring or subletting his right of selling foreign liquor without the permission of the Collector. Clause 4 of the licence deals with the cases of partnership firms and under this Clause 4 no person is to be recognised as the partner of the licensee for the purpose of the licence unless the partnership has been declared before the licence is granted and the names of the partners have been jointly entered in the licence, or if the partnership is entered into after the granting of the licence, unless the Collector agrees on application made to him to alter the licence and to add the names of the partners in the licence. Section 77(b) provides that if the holder of a licence granted under this Act, wilfully does or omits to do anything in contravention of any rule, regulation or order made under this Act shall be held guilty of the offence and punished according to law.

(9) Section 90 of the Bombay Prohibition Act is a general section providing for penalty for penalty for offences not otherwise provided for. Section 104 relates to the compounding of offences and it provides that the State Government may sanction the acceptance from any person whose licence, permit, pass or authorization is liable to be cancelled or suspended under the provisions of this Act or who is reasonable suspected of having committed an offence under Sections 69, 70, 82 or 108 of a sum of money in lieu of such cancellation or suspension or by way of composition for the offence which may have been committed, as the case may be. On the basis of this latter provision, it is argued that the compounding of the offence can be done only by the State and not by a private person. The contention is that if a private person were to be a complainant for an offence under Section 77 of the Act, there could be no composition of the offence at all and thus Section 104 of the Act would be rendered nugatory. It is hence urged that since it is the State Government alone which can compound the offence, the complaint by a private person is, by implication, barred. In this Act, there is no provision placing a bar on a private complaint. In fact Chapter VII of the Act, which deals with offences and penalties, only provides as to what persons in what circumstances will be liable to penalty for the various offences and does not say as to who shall be the complainant. Apart from that, Chapter IX of the Act gives powers and duties of officers and procedure. Section 116 of the Act lays down that in all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies. Section 118 of the Act provides that in the absence of any provision to the contrary in this Act, the provisions of the Code of Criminal Procedure, 1898, with respect to cognizable offences under this Act. Section 190 of the Code of Criminal Procedure deals with cognizance of offences by Magistrates and it provides that-except as provided, a Magistrate may take cognizance of any offence-(a) upon receiving a complaint of facts which constitute such offence, (b) upon a report in writing of such facts made by any police officer and (c) upon information received from any person other than a police officer or upon his own knowledge of suspicion that such offence has been committed. Clause (a) of Section 190 (1) of the Code of Criminal Procedure, therefore, clearly lays down that cognizance of an offence can be taken on a complaint which may also be made by a private party and this, read together with Section 118 of the Bombay Prohibition Act, clearly permits a private person to file a private complaint with respect to any offence committed under the Bombay Prohibition Act. The argument based on the provisions of Section 104 of the Bombay Prohibition Act has also no force because the fact that the offence can be compounded only by the State cannot mean that it is the State alone who can make a complaint to prosecute. Under the general law also there are several cases in which the offence can be compounded by a person other than the actual complainant or prosecutor. Several illustrations of this will be found in Section 345 of the Code of Criminal Procedure is a good illustration of this matter. There is no force, therefore, in the contention raised on behalf of the applicant that the provisions of Section 104 of the Bombay Prohibition Act by implication, bar a private complaint being filed in respect of the offences committed under the Bombay Prohibition Act, 1949.

(10) Next it was contended that on the face of the complaint made by the complainant, they do not make out any case at all against the applicant and the complaint being malicious and vexatious should have been dismissed in limine and the proceedings ought to have been quashed. As a part of the same contention, it has also been urged that there was no means represent in the mind of the applicant while taking the seven cases of foreign liquor. It is contented that the Sind Medical stores is a firm of which B. C. Khatri is one of the partners and the licence is also in the name of B. C. Khatri as a partner of the Sind Medical Stores. It is, therefore, urged that the consignment which was in the name of the Sind Medical Stores was in fact for the licence holder who represents the Sind Medical Stores itself. It was contended in the arguments that there are three partners of Sind Medical Stores and the applicant B. C. Khatri is one of those partners and hence the licence was taken in his own name. The licence for the year 1965-66 bore the No. F. L. 2/65-66 and it was the same licence that was renewed for the subsequent period from 1-4-1966 to 30-6-1966 and the renewed licence Number was V. L. F. L. 2/66-67 and hence the consignment which was received at Amravati on 20-4-1966 was for the same licence holder who was one of the partners of the Sind Medical Stores. These are the contentions of the applicant which were raised before the learned Additional Sessions Judge and before this Court, but, as I have pointed out, on the record of the case before the Magistrate at the time he passed the order, none of these materials was present. These contentions may be true or may not be true. They require investigation. On the face of it, it appeared to the learned Magistrate that the invoice was in the name of the Sind Medical Stores as also the receipt and the transport pass. The licence is not in the name of the Sind Medical Stores, but in the name of B. C. Khatri as partner of the Sind Medical Stores. The number of the licence at the time the delivery of the consignment was taken was F. L. 2/66-67 while the invoice and the transport pass give the number of licence as F. L. 2/65-66. There was no material before the Court as to whether the Sind Medical Stores which was the consignee of the aforesaid consignment was the same Sind Medical Stores of which the applicant B. C. Khatri is a partner. It was also not before the Court as to whether the three persons as contended by the applicant were the partners of the consignee Sind Medical Stores or whether there were any other partners besides these three or some of the alleged partners were not partners at all or there were other different persons. It is also not known whether the order for the foreign liquor was placed either by B. C. Khatri or any of the other partners or by somebody else. The Magistrate had to act, therefore, on the material that was placed before him by the complainant and from that he had to see whether the complainant makes out a prima facie case. The accused named in the complaint may have a good defence at the trial and it may be possible for the accused to establish that the complaint was act while issuing a process to the accused on the material before him at that time without considering any possible defence and at that time the accused is not in fact entitled to be heard for showing that the complaint does not show any prima facie case. That opportunity will be afforded to him after a process is issued to him and he appears in pursuance of that process. The learned counsel for the applicant has relied upon a decision of the Supreme Court in R. P. Kapur v. State of Punjab, : 1960CriLJ1239 , in support of the proposition that the High Court has got inherent jurisdiction to quash proceedings in proper cases either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Their Lordships however have in the same case observed:

'Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent Jurisdiction'.

There is no doubt that in an exceptional case the High Court has got the inherent jurisdiction to quash appropriate proceedings, but it must be shown that it is such an exceptional case which needs interference by the High Court at an interlocutory stage. Their lordships have given some of the categories of cases where the inherent jurisdiction of the High Court to quash proceedings can and should be exercised. The second category mentioned by their Lordships is

'where the allegation in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not'.

In view of what has been stated earlier, it does not appear that this is a case which falls in this category of cases. It cannot be stated on the reading of the complaint that it does not the reading of the complaint that it does not constitute an offence alleged, but prima facie the complaint shows that the consignee of the foreign liquor is Sind Medical Stores which does not hold any licence in its name as the Sind Medical Stores. The invoice & the transport pass or in the name of the Sind Medical Stores and the licence mentioned therein bears the No. F. L. 2/65-66. The licence for the import of foreign liquor is in the name of B. C. Khatri, Partner, Sind Medical Stores, Amravati and on the date the delivery of the consignment was taken by the applicant, his licence number was V. L. F. L. 2/66-67. The applicant was authorised under the Bombay prohibition Act and the rules made thereunder get his supply only from an approved supplier and Sind Medical Stores is not an approved supplier. The applicant got the supply from the Sind Medical Stores which is not an approved supplier. These are the main allegations made in the complaint and on the basis of these allegations, the learned Magistrate thought it fit to issue a process to the accused for appearance to answer the charge against him. He was further supported by the report of the Police Sub-Inspector which was made on an enquiry under Section 202 of the Code of Criminal Procedure as directed by the learned Magistrate. On the allegations in the complaint, the report on the enquiry and the documents filed along with the police report, the learned Magistrate considered that the complaint was not such which could be thrown out as disclosing no offence at all. This is not, therefore, such an exceptional case for the exercise of the inherent jurisdiction to quash the proceedings and such a case cannot be brought within the law laid down by their Lordships of the Supreme Court. It depends on the facts of each particular case, whether it would be a proper case for quashing the proceedings at the initial stage. Similar was the view taken by this Court in In re, Shripad Chandavarkar, AIR 1928 Bom 184, and also in Lasu Janu v. Emperor, AIR 1948 Bom 169. All these cases, therefore, lay down that in a proper case where on the face of the complaint by mere reading of it no offence seems to have been committed by the accused, the High Court has got inherent jurisdiction to quash such proceedings at the initial stage itself. On the contentions raised by the learned counsel for the applicant if those contentions are established he may have a good case at the trial to entitle him to an acquittal, but the same test cannot be laid down for the purpose of quashing the proceedings at the initial stage itself where on the material then before the Court a prima facie case is made out without there being any defence of the accused for consideration.

(11) Reliance has been placed by the learned counsel for the opponent No. 1 on another decision of their Lordships of the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose, : [1964]1SCR639 , in which the position of the accused in an enquiry under Section 202 of the Code of Criminal Procedure has been considered. Their Lordships have laid down that the entire scheme of Chapter XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued and though he may remain present either in person or through a counsel or agent with a view to be informed of what is going on, he has no right to take part in the proceedings, nor has the Magistrate any jurisdiction to permit him to do so. Their Lordships have further observed:

'No doubt, one of the objects behind the provisions of Section 202, Cr. P. C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there s also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounded duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not, has at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever the defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry'.

The scope of the enquiry has further been indicated by their Lordships by saying :

'For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction... the object of the enquiry has is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complaint and the statements made before him by persons examined at the instance of the complainant.'

Their Lordships have further observed:

'Since the object of an enquiry under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under Section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. Where there is prima facie evidence, even though an accused may have a defence that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused'

This clearly answers the contention raised by the applicant in this case. The arguments advanced or the contentions raised on behalf of the applicant at the appellate stage or before the applicant at the appellate stage or before the revisional Court may appear to be quits convincing, but that has not to be taken into consideration to find out whether the learned Magistrate was wrong in issuing a process against the accused. Applying these tests which have been laid down by their Lordships of the Supreme Court in the aforesaid case, the learned Magistrate had to find out on the material before him at that time as to whether the complaint was on the face of it devoid of any substance and such, as no offence could be made out from the allegations in the complaint or whether a prima facie case was made out against the accused whatever probable to me that the learned Magistrate on the material was not in error in holding that it was a case where a process should be issued to the accused for appearance before him to answer the charge against him. This is not such an exceptional case, proceedings in which must be quashed at the initial stage itself and this does not appear to be a fit case for exercising the inherent jurisdiction of this Court in quashing the said proceedings. It will be no open to the accused in the trial to show that the complaint is baseless and he is not guilty of any offence and it might be that he succeeds in his attempt at the trial, but it will be no ground for interfering with the proceedings at this stage. I, therefore, decline to interfere in this revision to quash the proceedings as contended by the applicant.

(12) In the result, the revision application fails and is dismissed.

(13) Application dismissed.


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