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HarikishIn Ajwani Vs. S.G. Rajadhyaksha and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1851 of 1981
Judge
Reported in1982(2)BomCR502
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482; Customs Act, 1962 - Sections 104 and 135; Indian Penal Code (IPC), 1860 - Sections 120B
AppellantHarikishIn Ajwani
RespondentS.G. Rajadhyaksha and anr.
Appellant AdvocateThaku Ajwani and ;S.B. Jaisinghani, Advs.
Respondent AdvocateS.A. Siwani, Adv. for respondent No. 1, ;S.M. Gupte, Adv. for respondent No. 2
Excerpt:
criminal - proceedings - sections 104 and 135 of customs act, 1962, section 120b of indian penal code, 1860, section 482 of criminal procedure code, 1973 and section 13 of dangerous drugs act, 1930 - petitioner charged with offences under acts of 1962 and 1932 - process issued by order - order challenged - petitioner contended that magistrate ought not to have issued process as there was absolutely no legal evidence - contention of petitioner found to be not well founded - enquiry started only and if inquiries stifled at this stage it would be difficult to do justice - petitioner not justified in invoking powers of high court at this stage under section 482. - - he also complained that extention of bail granted to him was itself an abuse of process and the order of process of bail.....s.j. deshpande, j.1. the petitioner is original accused in criminal case no. 223/cw/1981, which was pending before the chief metropolitan magistrate. on september 18, 1981 the learned chief metropolitan magistrate ordered to issue process against accused-petitioner in this case after recording a reasoned order. it is this order which is being challenged by the petitioner under section 482 of the code of criminal procedure.2. a few facts necessary to determine the question involved in this application are stated as under :---the petitioner is a non-resident indian citizen and has been residing in west germany for the last sixteen years. the petitioner is married to a german girl from whom he has a daughter.3. in the month of november, 1979, as the customs officer, bombay required the.....
Judgment:

S.J. Deshpande, J.

1. The petitioner is original accused in Criminal Case No. 223/CW/1981, which was pending before the Chief Metropolitan Magistrate. On September 18, 1981 the learned Chief Metropolitan Magistrate ordered to issue process against accused-petitioner in this case after recording a reasoned order. It is this order which is being challenged by the petitioner under section 482 of the Code of Criminal Procedure.

2. A few facts necessary to determine the question involved in this application are stated as under :---

The petitioner is a non-resident Indian citizen and has been residing in West Germany for the last sixteen years. The petitioner is married to a German girl from whom he has a daughter.

3. In the month of November, 1979, as the Customs Officer, Bombay required the petitioner, he came down to Bombay from abroad and contacted the Customs Officer. It is alleged that the petitioner has connection with some offence to have been discovered abroad. On December 5, 1979 petitioner was arrested and produced before the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. He was released on bail and such extention of bail continued upto July 14, 1981.

4. It appears that during this period when the petitioner was released on he, has approached this Court under section 482 of the Code of Criminal Procedure on April 20, 1981 complaining that there is inordinate delay in filing the complaint against him. He also complained that extention of bail granted to him was itself an abuse of process and the order of process of bail extention is liable to be quashed.

5. On July 3, 1981, when the said criminal application came up for admission before the High Court, it appears the learned Public Prosecutor made a statement before this Court that the Customs Department would file a complaint against the petitioner within two weeks and on the date of extended remand, which expired on July 14, 1981 the Customs Department finally filed a complaint in the Court of learned Chief Metropolitan Magistrate, Esplanade Bombay charging the petitioner with the commission of offences under section 120-B read with section 135(1)(a)(ii) and 135(1)(b)(ii) of the Customs Act, 1962 and section 13 of the Dangerous Drugs Act, 1930.

6. The learned Chief Metropolitan Magistrate after going through the complaint and hearing the petitioner-accused through his Counsel has issued process by his order dated September 18, 1981. The learned Chief Metropolitan Magistrate has passed speaking order giving reasons for arriving at the conclusion to issue process against the accused-petitioner. He has emphasized that the petitioner-accused was the organiser of drug trafficking in motor vehicles through India to Australia. It may be noted at this stage that the petitioner is not the only accused but along with him there are 12 other accused, who are charged with the said offences. The other accused named in the complaint are all foreigners and the petitioner appears to be the non-resident Indian. The learned Magistrate has referred to certain details about the various connections of vehicles, which were seized at Australia and the petitioner has connection with these cars and some other persons were arrested in Australia carrying the contraband.

7. After going through the complaint and hearing the Counsel for the petitioner-accused the learned Magistrate has issued the process. It is this order which is being challenged by the petitioner in this criminal application under section 482 of the Code of Criminal Procedure. The object of the application is to invite the High Court to exercise inherent powers to quash the process as it is the submissions of the petitioner's Counsel that in this case the learned Magistrate has committed serious illegality in issuing process.

8. At the out set I may point out that under section 482 of the Code of Criminal Procedure, the powers of this Court are very much limited and it would not be open for the High Court to exercise its powers at this stage unless an exceptional case is made out for interference at the interlocutory stage. The learned Advocate for the respondent No. 1, Mr. Siwani has invited my attention to certain cases which go to show that the petitioner has got an adequate remedy of revision against the order of issue of process and, therefore, technically the High Court should not entertain any application under section 482 of the Code of Criminal Procedure. I find sufficient force in the contention raised by the respondent No. 1. The authorities which are relied on by the first respondent also support this contention. But I am not narrating the same for the simple reason that despite the fact that the revisional jurisdiction can be invoked by the petitioner in such case, the application filed under section 482 of the Code cannot be thrown out on the ground that the petitioner should adopt the remedy of revision. It is true that the inherent powers of this Court cannot be invoked if some of the provisions of the Code are available to redress the grievance of the petitioner. But as laid down by the Supreme Court itself in more than one decision, I do not think that the application under section 482 of the Code of Criminal Procedure can be said to be barred as the petitioner has not preferred any revision against the order of issue of process.

9. Now, when the petitioner desires to approach the High Court with an object to invoke inherent powers under section 482, it must be remembered that the petitioner shall have to satisfy the High Court that he has no other adequate remedy and the circumstances of the case are such that the High Court ought to interfere and set aside the order of process as it is quite illegal.

10. In this connection, the first submission which was made by the Counsel for the petitioner was that the learned Magistrate did not take into consideration the grievance of the petitioner especially relating to the case law which was cited before him. It is true that the courts normally should not ignore the arguments advanced and citations made before them. But then I do not see special infirmity in this case because the petitioner was allowed the concession to argue in this case only as a matter of fair play. It is well settled that at this stage the petitioner-accused if so advised should not have made a grievance, since the Magistrate allowed the concession and actually heard him and it was something which is not strictly permissible in law. However, as this was done as a matter of concession, I do not want to entertain the grievance of the petitioner in regard to failure to take into consideration his case and authorities cited before him. And, therefore, to this extent I do not find any fault in the judgment of the learned Magistrate.

11. Then, the second contention which was urged by the learned Counsel for the petitioner was that the learned Magistrate did not accede to his request that he should have called the complainant as a witness and also he should have called the other witnesses at this stage, and if the Magistrate would have chosen to postpone the issue of process as provided by section 202 of the Code of Criminal Procedure, I think this grievance would not have been justified. It was not possible for the Magistrate at this stage to embark on the enquiry as provided by section 202 of the Code since he himself could have been of the opinion that the complaint of offence which was made before him requires some further enquiry. Therefore, this grievance which was made before the Magistrate was not justified and if he did not accede to it, I do not think that the Magistrate has committed any error in this regard.

12. The learned Advocate for the petitioner then against submitted that the allegations made in the complaint on the bare reading of it certainly disclose the offences, but the principle point which was canvassed by the learned Advocate for the petitioner was that is absolutely no evidence and whatever evidence is disclosed in the shape of list of witnesses cannot be said to be the evidence which is collected in India and which can be said to be the legal evidence to support the charge. This grievance was specifically made by the learned Advocate for the petitioner relying on the decision of the Supreme Court. This decision is reported in B.P. Kapur v. State of Punjab : 1960CriLJ1239 . The learned Advocate for the petitioner has specifically pointed out to me that in view of the observations of the Supreme Court in the category cases enumerated by them in class III. The case of the present petitioner specified in the test laid down by the Supreme Court in the category of cases and he invited my attention to the following observations :

'In cases falling under this category the allegations made against accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly, inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question'.

Relying on this test which is laid down by the Supreme Court, in this case it was strongly contended by the learned Advocate for the petitioner that in this case no legal evidence is adduced in support of the case and the evidence which is adduced in the shape of list of witnesses given along with the complaint cannot be said to be any legal evidence, which may ultimately prove the charge.

13. Now, the question which requires to be considered is whether the expression 'adduced evidence' is capable of interpreting the same that in all cases some kind of evidence must be adduced at this stage. The learned Advocate also wanted to rely on the dictionary meaning of the same is quoted or cited. I have further not gone into the interpretation of the word 'adduced evidence'. The Supreme Court in this case ultimately has dismissed the appeal and was not persuaded to acquit the person. The observations of the Supreme Court will have to be read in the context of that case and especially with reference to subsequent observations made in the very para. These observations find place in para 6 on page 1242. The Supreme Court has further stated as quoted above that in dealing with this class of cases it is important to bear in mind the distinction between a case where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. This premises on true guidance, is to understand, the correct import of the above observations of the Supreme Court. In this connection, it is material to note the provisions of section 202 of the Code of Criminal Procedure. It is not obligatory on the Magistrate trying a complaint to make any inquiry, but the jurisdiction under section 202 is very much limited to find out whether at that stage there is any prima facie case to proceed against the accused. At this stage, the accused does not come in the picture at all. The Magistrate is supposed to make up his mind to proceed or not to proceed with the case on the allegations disclosed by the complaint and such other material as the complainant may choose to produce before him. If the complainant does not produce any evidence at that stage, or any material, the Magistrate will apply his mind to the allegations made in the complaint itself and proceed with the case. In this connection it is useful to refer to a judgment of the Supreme Court reported in Chandra Deo Singh v. Prakash Chandra Bose, : [1964]1SCR639 , where the Supreme Court has specifically dealt with the scheme and scope of inquiry contemplated under section 202 of the Code of Criminal Procedure. Supreme Court has observed as follows :

'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. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a Counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person.'

In view of this pronouncement of the Supreme Court, it is difficult to take support from the three witnesses which were strongly relied on by the learned Advocate for the petitioner to conclude that the Magistrate must examine at that stage whether the evidence is adduced or not and whether the evidence which is adduced is such as it would be sufficient to prove the charge. it is at this stage, no concern of the Magistrate to examine the evidence in the sense that it is such legal evidence as it would constitute the basis of conviction. Therefore, the reliance placed by the learned Advocate for the petitioner on this judgment B.P. Kapur v. State of Punjab and especially on the above quoted observations of the Supreme Court is not of any assistance to him to advance the case of the petitioner.

14. There is another reason, which is to be noted in this connection. This is a case relating to the offence under the Customs Act. One of the offences is of conspiracy. In the nature of the things, the offence of conspiracy requires a very different type of evidence in regard to the agreement of different conspirators to join for the illegal object. The complainant discloses that the petitioner is charged with import and export or perhaps transshipping and transmitting of contraband like Hashis. The contraband disclosed is more than worth Rs. 66,000/-. It is said that there is international gang and there are various persons in different countries normally in Australia and Germany who are involved along with the petitioner. In such a State of affairs, it is not possible at this stage to expect any detailed and final list or documents in the shape of evidence at this stage. The complainant has at this stage, given the list of witnesses and in the list of witnesses I find that at Serial Nos. 8 and 9 two witnesses are cited, who are foreigners. They are proposed to be examined in support of the investigation which are carried on by their own country. It is the case of complainant that the whole basis of filing of the complaint is derived from the investigation reports which are submitted by the foreign police. It is in connection with these reports that these two witnesses who are at Serial Nos. 8 and 9 may be examined by the prosecution. At this stage a strong grievance was made by the petitioner that the Court below was not right in taking into consideration the investigating reports. The said investigating report was also shown to me and some excerpts were tried to put before me by the learned Advocate for the first respondent. It does appear from the report that the petitioner has connection with transport of contraband articles, which were carried from various places. As far as India is concerned, it is specific case of the complainant that the Peshavar the alleged cars were loaded or unloaded and transport took place. The learned Advocate for the petitioner strongly object to rely on that report and even to see or look at it. It was pointed out that the investigating report sent by the foreign police may contain utter falsehood and, therefore, it should not be taken into consideration at all. It is true that strictly speaking such investigating report sent by certain foreign agency of police cannot be the evidence which can be taken into consideration for determining the guilt otherwise of the accused. But then at stage, in my opinion, the investigating report can certainly provide a material for the complainant to rely on it to form his reasonable belief that there is a reason to proceeding against the petitioner, if prima facie, the allegations and the inquiry report or the investigation report implicates him in several illegal activities as mentioned in that report. It may be open for the petitioner to challenge the production of this report at a proper stage, but at this stage of issues of process this grievance of the petitioner is of no consequence. I am afraid, according to me, the witnesses at Serial Nos. 8 and 9 are cited by the complainant to show that the said report will be duly produced before the Court for proper appreciation and examination.

15. Then, the learned Advocate for the petitioner set out before me for several items and submitted that there is no evidence adduced for accusation of motor car and conversion of motor can or arrival of cars, transfer of 60,000/- U.S. Dollars to accused No. 3, seizure of motor cars and the persons who are in charge of the cars with which they came. No evidence as to the cars when they arrived with contraband in India, has been adduced . Relying on these facts, it was contended by the learned Advocate for the petitioner that there is absolutely no evidence adduced by the complainant on the above allegations, which I have narrated. The learned Advocate for the petitioners ultimately submitted that the order of issue of process should be quashed.

16. For the reasons I have given above, at this stage there is no question of adducing or leading any evidence much less to produce evidence on behalf of the complainant. If the complainant produces material, the Court may take into consideration but there is no requirement of law that the complainant should adduce any evidence though there should be some evidence at this stage which would show that the charge prima facie is likely to be established.

17. The material which the Magistrate has to examine at this stage is strictly confirmed to the three items, first complaint itself, secondly if the complainant chooses to examine himself on oath, his statement and thirdly any document or witnesses produced before the Court, otherwise the Magistrate has to apply its mind to the complaint as such and if the allegations in the complaint disclosed an offence he can proceed to issue process.

18. It may be noted here that while issuing process, the law does not require to record the reasons. It is not necessary that in every case when the Magistrate issues the process, he should give a reasoned order. The very absence of requirement of the law of non-recording reasons shows that at this stage the statute only requires, that, the Magistrate should apply his mind to the complaint and decide whether he should proceed with the case or not. In this connection it will be useful to refer to true scope of the issue of process at this stage and the judgment of the Supreme Court reported in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, : 1976CriLJ1533 furnishes sufficient guidance in this connection. The Supreme Court has observed as follows :---

'At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complainant or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.'

The Supreme Court while observing in this connection had laid down the following categories :

'(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious an arbitrary having been based either on no evidence or no materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'

19. In the present case, I find that the order given by the learned Magistrate was recorded after hearing the Counsel for the petitioner. It is well reasoned order at this stage and the allegations in the complaint itself disclose offences which are described above. Therefore, it is not open for the High Court now to go into the detailed scrutiny and examination of the evidence or want of evidence at this stage. Relying on the above judgment, I see no force in the contention raised by the learned Advocate for the petitioner.

20. I may also refer to the judgment of our High Court, cited by the Advocate for petitioner which is unreported. This judgment was delivered by the Division Bench consisting of Pratap and Kotwal, JJ., in Criminal Application No. 175 of 1979, on April 29, 1980. In the said case similar question of issue of process was involved. But I find from the judgment in the said case the High Court has found in paragraph 13 that :

'.......... the complaint as it is cannot be said to be tenable. Cognizance of some offences cannot be taken for want of sanction while other offences are not even prima facie made out.'

Reliance was strongly placed by the learned Advocate for petitioner on this case. It was against the background of the facts and circumstances placed before the Division Bench that the High Court has reviewed the case law and all the cases cited and it is against that background the High Court has said in the said case that the learned Magistrate has failed to apply his mind. Division Bench has further observed that there was a total non-application of mind to the facts of the case concerning the allegations in the complaint. In a case, where there is total lack of application of mind, I do not think any authority will require to say that the High Court shall not examine the case. In the instant case, I find, that, the learned Magistrate has applied his mind to the allegations and the material placed before him. His conclusion to issue process is based on the proper application of his mind to the facts disclosed from the complaint. In fairness, the petitioner's Advocate was heard at that stage and if the learned Magistrate was satisfied prima facie with the allegations made in the complaint, I do not see any justification to review his decision in exercising of inherent powers under section 484 of the Code of Criminal Procedure.

21. Before concluding my judgment, the learned Advocate for the petitioner pointed out to me one more authority in Emperor v. Opposite Party 1906 Cri.L.J. 217. This judgment was cited by the learned Advocate for petition in support of his contention. In this case it was the Government Pleader who had filed the complaint. It was hold in this case that the Government Pleader had no personal knowledge of the complaint and, therefore, the proceedings were quashed. This case relates to offences under sections 465 and 468 read with section 190 of the Indian Penal Code. Calcutta High Court has observed as under :---

'When the allegations in a petition of complaint appear to be made on information and not on the personal knowledge of the complaint, it is reasonable that a Court before issuing summons against the accused satisfy an proper materials that a case has been made out for issuing summons.'

The Calcutta High Court has rightly stressed that where the complainant has no personal knowledge or information about the facts which constitute the offences, it is necessary that there must be material before the Magistrate and it is that material which he must consider. In the very nature of the complaint which is filed by the complainant in this case it is quite different to apply ratio of this case. The complaint which is filed in this case is filed by the Assistant Collector of Customs. Strictly speaking, he is a private complainant, but then the complaint is based on certain facts and information which the Customs Department has received from other sources. Under section 104 of the Customs Act, 1962, if the Collector of Customs has reason to believe that any person has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as, inform him of the grounds for such arrest.

22. In this case initial proceedings which were started by the complainant were for the arrest of the accused under section 104 of the Customs Act. The expression 'reason to believe' which is used in the said section means that there must be some material in possession of the Customs Officials, which may furnish a ground to believe that any person is connected with an offence punishable under section 135 for which they must inform him. In my opinion, from the nature of the complaint in this case and the allegations made therein which prima facie disclose the offence under section 135 as well as under section 120-B of the Indian Penal Code, it is impossible to suggest that the complainant in this case must have personal knowledge. After all, this is a complaint in regard to the offences under the Customs Act, which are peculiar in origin, plural in commission and precarious in completion.

23. The learned Advocate for the petitioner with my permission interrupted and invited my attention to the specific portion of the judgment of the above case reported in 1906 Cri.L.J. 217. It was contended by him that the statements of the person who had personal knowledge of the various transactions were not presented. The complaint was not supplemented by the statements of those witnesses who had personal knowledge of that transactions. In my opinion, it is not the requirement of law at all that at this stage all the statements necessary to be produced by the prosecution should be filed along with the complaint. In this case the complainant has given the list of the witnesses and that is sufficient compliance of law. Therefore, the above case if of no assistance to the petitioner.

24. It is well settled that the powers of this Court under section 482 of the Criminal Procedure Code cannot be exercised merely to correct the errors of the Court below. What was sought to be argued before me was that the learned Magistrate ought not to have issued the process as there was absolutely no evidence in the case and there was no legal evidence at all. As I have shown above, such a contention is not well founded, I do not think that the petitioner was justified in invoking the powers of this Court at this stage under section 482 of the Code of Criminal Procedure. It may be noted here that the scheme of the Code furnishes sufficient guidance. If after some evidence is led before the Magistrate, it is open for him to consider on the basis of that evidence whether he should further frame a charge against the accused or not. At this stage, the enquiry has only started and in the matters which involve offences such a smuggling and conspiracy, if the enquires are stifled at this stage, it would be difficult to do justice in such cases. There is no error of law committed by the learned Magistrate in issuing process. There is no such illegality as would justify interference under inherent powers of this Court. No legal infirmity or statutory contravention is pointed out to show that issue of process is illegal. In view of this state of affairs, I do not see any justification to allow this application.

25. In the result, the petition fails. The rule is discharged. The order passed by the learned Chief Metropolitan Magistrate dated 18th September, 1981 is confirmed. Stay is vacated. It would be desirable that in view of the delay already caused, the ends of justice will be met if the complainant expeditiously prosecutes the complaint and the learned Magistrate will see that the complaint is disposed of as already as possible.


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