S. Rangarajan, J.
(1) This order will not only dispose of Criminal Revision No. 149 of 1973, both filed by Bhagwandas Madhavji Khakkar, but also Criminal Revisions 130 of 1973 and 148 of 1973, both filed by his brother (Babubai M. Khakkar). Applications for condensation of delay in filing the Criminal Revisions have been filed along with the Criminal Revisions. The facts leading to the filing of the present petitions may be briefly noticed.
These two brothers (petitioners) along with some others were committed to the Court of Sessions by an order, dated 23rd September, 1969, of the Special Magistrate, Delhi, to face charges of conspiracy as well as certain specific acts in the matter of fraudulently obtaining and using certain import licenses in the names of allegedly fictitious persons. B. K. Parekh, one of the accused who was committed to Sessions filed a petition to quash the commitment so far as he was concerned in Criminal Revision No. 35 of 1970 on the file of this court : the committal was quashed by me on 8th February, 1971. Criminal Revision petitions were also filed by some of the accused persons including the two brothers, who are the present petitioners ; the same were dismissed by the Additional Sessions Judge, Shri H. C. Goel, on 7th of March. 1972. Both the present petitioners did not take the matter to this court by way of further revision, after their petitions had been dismissed by Shri H. C. Goel.
WHENanother learned Additional Sessions Judge (Shri 0. P. Singia) commenced the sessions trial by reading the charges on I 1th December, 1972 against Bhagwandas M. Khakkar and on 13th November, 1972 against Babubhai M. Khakkar, both of them pleaded not guilty and claimed to be tried. Thereafter both of them applied to Shri 0. P. Singia to delete their names from the charge of conspiracy and to make certain consequential alterations in the charges framed against them by the trial Additional Sessions Judge. The applications were dismissed by Shri 0. P. Singia. on 28th April, 1973.
THEcase had been fixed for recording evidence between the 1st and 31st of May, 1973. The trial began on 1st May, 1973 and two witnesses were examined. Meantime, both the brothers filed Criminal Revision Petitions 130 and 131 of 1973 on the file of this court on 1st May, 1973 for a similar relief. On 2nd May, 1973 the further trial was also stayed pending these petitions.
When both the petitions (Criminal Revisions 130 and 131 of 1973) were being heard the petitioners realised that they would be in a difficulty without filing petitions to quash the committal order itself; Criminal Revision petitions 148 and 149 of 1973 were filed on 14th May, 1973 to quash the committal order against them, after condoning the delay in filing these petitions.
ATleast the broad facts as alleged by the prosecution have to be noticed. One S. N. Kaul (discharged by the committal court) was an employee of the office of Chief Controller of Imports and Exports and later in the Ministry of Commerce and Industry ; Harcharan Singh (accused No. 1) was an Assistant Controller of Imports in L/II-C Section of the Office of the Chief Controller of Imports & Exports sometime in 1957. He had to make certain checks concerning the genuineness of the Income Tax verification certificate before the issue of licenses. On the basis of the essentiality certificates issued by the Development Wing of the Ministry of Commerce and Industry certifying the essentiality of the requirements of raw materials three licenses were issued in the names of (1) National Industrial Chemicals, Lucknow, (2) Agnihotri Energy Food Products, Faridabad, and (3) Northern India Chemical Industry, Faridahad. These licenses were issued by L/IIC Section between May and October, 1957. The case of the prosecution is that all these three firms are non-existent. The persons who had allegedly signed the applications could not be traced and the essentiality certificates (purported to have emanated from the Development Wing) the requisite treasury challans and the Income Tax Clearance certificates, all of them attached to the applications, were forged.
THEfurther case of the prosecution was that one of the accused D.G. Bharwani (C.M. Puri and Dilbag Rai, both discharged by the Committal Court) took delivery of the concerned licenses. The names of the present petitioners are stated not to figure in those three licenses.
THEcase of the prosecution is that a request was further made for the issue of letter of authority in the name of allegedly fictitious firm M/s, Vijay & Co. of Bombay in respect of the licenses issued. The film of Vijay and Co was allegedly located in the premises of M/s. Wakcfield Paints (P) Ltd. Bombay; the correspondence was said to have been received by one of the accused who was also discharged by the Committal Court. There was evidence, however, before the Committal Court that there was no such firm known as Vijay & Co. in those premises.
THEfurther case of the prosecution was that Babubhai M. Khakkar is alleged to have purchased the goods imported at Calcutta by the said National Industrial Chemicals. Lucknow. which were subsequently sold by him. Imports of goods covered by the licenses were said to be made both at Calcutta and at Bombay ; the consignments received were sold to different finms under instructions from Babhubhai M. Khakkar and one Ramnik Dhuplia (discharged by the Committal Court). In the case of licenses issued to Agnihotri Energy Food Products the letter of credit was opened by Purshotam Sanghvi (of M/s. Kirti-Kumar Shah and who is one of the accused who was committed and faced trial). Messrs Fedco (P) Ltd. were stated to have imported good? covered by the license to Messrs Northern Indian Chemico, Faridabad, the import having said to be arranged by one Parekh, whose committal was quashed by me as noticed above.
(2) Out of a total of 13 accused who stood charged with a conspiracy to commit certain offences (in addition to individual charges against some of them) and out of those discharged one Y.E.Rangwala is dead eight have been discharged till date. In addition to these two petitioners the other three accused against whom the Sessions trial is proceeding are (1) Harcharan Singh (2) D. G. Bharwani and (3) Purushottam Sanghavi. The charge of conspiracy framed against these five accued( including the two present petitioners) mentions, inter alia, that they were engaged with certain others in a criminal conspiracy between the 1st quarter of 1957 and end of 1958 at Delhi, Bombay, Calcutta and other places to commit or cause to be committed illegal acts, namely, to dishonestiy and fraudulently obtain import licenses under the Actual Users category in the names of fictions firms for those items, import of which was highly profitable and that they were helped by certain officials. It is needless to notice the further details of this charge except to the extent reference has to be made hereafter.
(3) The learned Additional Sessions Judge (Shri. O. P. Singla) by his order dated 28th April, 1973 observed that the withdrawal of charges, out of number of charges, would amount to quashing of the commitment to that extent, a power only vesting in the High Court under Section 215 Cr. P.C. For this position reliance was placed upon a decision of the Allahabad High Court in Rex v. Alimuddin and others'. He felt (rightly) that he could not recommend to this Court the quashing of the commitment since the same had already been examined by another additional Sessions Judge (Shri H. C. Goel ). Shri O. P. Sigla was also of the view that as against the two brothers there is evidence on record in respect of the alleged conspiracy. After referring to certain pieces of evidence on record, Shri Singia observed that in regard to 'separate charges no specific arguments were addressed to him to show which particular charge was required to be amended ; it appeared to him that the two brothers wanted not to stand the trial at all but to get the commitment itself quashed. Despite these observations Criminal Revisions 130 and 131 of 1973 were filed in this Court not turn the pur pose of quashing the committal itself but for deleting their names from the charge of conspiracy as well as from the specific charges against them.
(4) When the two petitions were heard at some length it was realised by Shri R. H. Dhebar, learn;d counsel for the petitioners, that without having the order of commitment itself quashed they would be in difficulty in the matter of pressing for any of the reliefs sought in Criminal Revisions 130 and 131 of 1973. Hence the two later petitions (Crimmal Revisions 148 and 149 of 1973) were filed with prayers to condone the delay in filing the petitions for quashing the charges and to consider the petitions thus filed to quash the order of committal dated 23rd September, 1969.
(5) Article 131 of the Limitation Act, 1963, prescribes a time limit of 90 days from the date of order in respect of a criminal revision under the Code of Criminal Procedure. Sim Dhebar's contention is that since these offences relate to a period prior to 1963 the period of limitation would not apply and that condensation of delay in filing the revision petitions had been applied for only by way of aboundant caution.
(6) It is need less for the purpose of these petitions to decide whether the Limitation Act of 1963 applies to the present petitions or not in spite of the committal itself having taken place long subsequent thereto, on 23rd September 1969. Even assuming that the said Limitation Act does not apply, the question would still remain whether when the trial in the Court of Session, has started and both the brothers (petitioners) had pleaded ' not guilty ' and claimed to be tried in respect of charges framed against them by the Court of Session (after the committal) it is open to them to ask this Court to quash the committal or whether it would be even appropriate to quash the committal at this stage. This is not to say that there is any rule of estoppel which can be invoked against the petitioners debaring them from questioning the correctness of the committal. It seems to me that it would be at least inappropriate for this Court in exercise of the powers under section 215 Cr. P.C.or even under any other provision (like sections 435, 439 or 561-A Cr. P.C.) to quash the committal of the petitioners.
(7) It is worth recalling that the Rev. Petitions against the said order of committal had been dismissed as early as on 7th March, 1972. The petitioners did not move this Court further until after the trial had started against them on 13th November, 1972 and 11th December, 1972. The reason given is that they were advised by the late A.S.R. Chari that a further revision to quash the charge under Section 215 was unnecessary and that thay should apply to the Sessions Judge for amendment of the charges when the trial began. It has not been explained to me on what basis such advise was given. It does not seem likely that such advice could have been given. In any case, this has got a bearing only on the matter of whether the delay in filing the revision petitions can be condoned; it has nothing to do with the other aspect which is now discussed, namely, the appropriateness of a Court of Revision to quash the commitment after the trial commenced on the basis of the said commitment but before the conclusion of the said trial. It seems to me that it would be atleast in appropriate to quash the commitment in these circumstances even if the commitment had to be quashed for any reason (on which question, however, it is even needless to express any opinion). I have been fortified in my view by the observations made by a Division Bench in a very early Calcutta case in Re-Empress v Sagambur. The facts of that case were simple. Evidence had been recorded in the prisoner's absence, under Section 327 of the Code of 1872, when he was said to be absconding, in a case where he was alleged to have killed his brother. When he was apprehended he is said to have made a sort of confession to a Magistrate. He was thereupon committed to the Court of Session for trial on the strength of the evidence recorded under Section 327. The Sessions Judge made a reference to the High Court for quashing the commitment on the following grounds :
(1)that the commitment on the basis of evidence recorded under Section 327 Cr. P. C. was illegal because there was nothing to show that the prisoner absconded or due pursuit was made but could not be arrested; and
(2)the witnesses were procurable when the prisoner was brought back to the committing Magistrate's Court. While recommending the commitment to be quashed the Sessions Judge had also made a recommendation that the committing officer be directed to take the evidence, including that of the medical officer, if possible in the presence of the accused.
(8) The Sessions Judge had also recorded the plea of not guilty before making the recommendation to the High Court for quashing of the commitment.
(9) The Division Bench refused to quash the commitment when the prisoner had been put upon his trial, and had pleaded to the charge.
(10) This decision was followed with approval by a later Division Bench of the same Court in Kasem Molla v. King Emperor, which observed as follows:
'.........WEagree with that decision (reported in 12 C.L.R. 120) that it is too late to object to the commitment after the accused has pleaded to the charge before the Sessions Court.' These observations are opposite in the present situation.
(11) For the sake of completeness, on this aspect, I may refer to the decision in Khushi Ram v Hashim which holds that when there is a specific provision in the Criminal Procedure Code, namely, section 215 for quashing commitment, the power under Section 561-A should not be invoked. It is also now well seiled that in an application under Section 561-A the court would not go into questions of fact or appreciate the evidence (vide R. P. Kapoor v. State of Punjabi Rajindra Nath v. Superintendent of Police).
(12) Apart from these procedural aspects, it seems to me that it would not be proper in this case to grant the prayer for quasiling the committal after the Sessions triai has spirted especially when the peti- tioners did not choose to file any revision pe.ilion against the order of commilment even after Shri H. C. Goel had declined as early as 7th March, 1972 (nearly a year ago) to recommend to this Court that the Committal be quashed. The petitioners not only knew what evidence the prosecution had against them but also on what basis the committal was made and Shri M. C. Goel had declined to recommend to this Court to quash the committal. Turning to the committal order itself it is seen that reference was made by the Committing Magistrate (Shri Khakkar) in various places to the part (described as a 'central' role) played by Babubhai and Vijay and Co., being a fictitious company. He had relied, among others, upon Babubhai' having stayed in the National Sports Club of India at Delhi during the period when the applications are stated to have been filed for obtaining the import license and for importing goods. Reference was also made to the license in the name of Agnihoiri Energy Food Products (collected from Faridabad) being covered by a letterof credit opened by Purshottam Sangvi, allegedly at the instance of Babubhai with the import license issued in favor of Northern India Chemico Faridabad, and he is not usually dealing in Chemicals but tiles alone. The learned Magistrate, however, erroneously draew an adverse presumption from the fact that both the petitioners chose not to reply to the pieces of evidence put to them, this was not permissible.
(13) It was urged on behalf of the petitioners before Shri H. C. Goei (Additional Sessions Judge) iliat there w:-.s no legal evidence to sustain the committal against their. Shri H. C. Goci relied, among other things, on the evidence ofP.Ws. J 7, 26 and 37. For the purpose of clearer understaniding of their statements I am setting them out more fully that Shri Goel had done.
(1)Public Witness .37 (Jodavjee J.Gopal, Proprietor of Jodavjee & Co. Calcutta) swore that Babubhai had showed him the original import license No. A. 945923 and the letter of authority which was issued in favor of Kirti Kumar Shah (Ex. P. 245) and told him (P. W. 37) that .his firm had indented for the supply of tiles. Babubhai contacted P. W. 37 at first and told him that he was looking for some one who could look after the imports at Calcutta. Some time later Babubhai also telephoned to him and asked him to prepare the indent (copy of which is Ex. P. 244) which was signed as Kirti Kumar C. Shah by accused Purshottam Sangvi Babubhai had given P. W. 37 the details regarding the same with which the indent was prepared for 'Kirti Kumar C. Shah.' P. W. 37 was confronted with certain prior statements made to the Police but this js hardly the occasion for going into them for the purpose of appreciating the evidence of P. W. 37.
(2)P. W. 17 (Inder Jeet Dayalji Boda) who was working from 1954 to 1958 with M/s Radia Sons & Co. Pvt. Ltd., Bombay, afirm doing import and export business, swore that he knew both the brothers (petitioners). In chief examination he had stated that they were partners with vithal Das & Co. and that he had met both of them 10 days before the indent in Question was typed. In crossexamination, however, he had admitted as follows :
'Icannot contradict if I am told that Vithal Dass & Co. was and continued to be a sole proprietor concern.' Even if this throws doubt upon Bhagwandass being a partner of Vithal Dass & Co. there is still the evidence of P..W. 17m chiefexamination that both the brothers had placed the indent in the name of Vijay & Co.
(3)P. W. 26 (Prabash Chander Mitra), a clearing agent carrying on business under the name and style of M/s. United Shipping Corporation, Calcutta, stated that Dhupalia (discharged accused) contacted them on behalf of Vijay & Co. and that Dhuplia himself was introduced to them by Kumar of M/s. R. D. Bansal & Co. Dhupalia handed over the shipping documents-license No. A-998070/ 57/AU/CCI/HQ for import of glazed tiles. The letter of authority in the name of Vijay & Co., handed over in the first instance, was also given at the time of clearance. They were instructed to deliver the consignments. The bill of entry in respect of the first consignment (Ex. P. 132) was in the name of the importer Vijay& Co., Dhunoor Building, P. M. Road, Bombay. In connection with the clearance of this consignment a duplicate license (Ex. P. 32), along with the list of goods (Ex. P. 32/C) and the letter of authority (Ex. P. 33/A) in favor of Vijay & Co., were given. Babubhai is said to have paid sum of Rs. 3CO.00 on 14th October 1957 and the consignment was delivered to M/s. India Marble and .Tiles Co. under a letter of authority from Vijay &Co.; which had been delivered to him (P. w. 26) by Ramnik Dhupalia (Exs.P. 133and-134). When Dhupalia took the second and the third consignments of tiles on account of Vijay & Co., Babubhai was said to be present. P. W. 26 had been receiving letters from Vijay & Co. (Exs P. 136 etc.) in this connection. P. W. 26 also swore that Bhagwandas, who had also come from Bombay, had told him that he was Babubhai M. Khakkar's brother and that he had come to Calcutta in connection with the last consignment which was detained by the Customs, Calcutta. Bhagwandas also asked P. W. 26 about the position of the case with the Collector of Customs, Calcutta, but P. W. 26 did not disclose any details to Bhagwandas, a stranger. It is no doubt true that P. W. 26 had also stated that P. W. 46 (R. D. Bansal) had confirmed about Bhagwan das M. Khakkar being the Proprietor of Vijay & Co. This portion of his evidence was not supported by P. W. 26 and I have not been referred to any other direct evidence on the question whether Bhagwandas was the proprietor of Vijay & Co. or not.
(14) The charge of conspiracy is sought to be made out against the petitioners by overtacts of participation in connection with the allegedly spurious license including that in the name of Vijay & Co. These are matters of inference to bedrawn at the trial. The several pieces of evidence said to incriminate the petitioners each of them cannot be appreciated in isolation.
(15) At least so far as Bhagwandas is concerned greater emphasis was laid saying that he had done nothing more than guaranteeing the letter of credit vis-a-vis the license issued in the name of Vijay & Co., and that he had done so only as a professional gaurantor. But there seems to be not only theevidence of Public Witness . 26 (P. C. Mitra) concerning Bhagwandas going to Calcutta to make enquiries about the Customs case but also the evidence of P. W.17 (Inderjeet) that Bhagwandas had met him at Bombay 10 days prior to the indent being typed and had made enquiries as to whether if he placed a big order for tiles he could get any concession inprice. Public Witness . 17 had acted on this enquiry and reported the same to his superiors. He had discussed the transactions with both the brothers, but the indent was prepared affer.such discussion in the name of Vijay & Co.
(16) It is for the Sessions Court to appreciate how far these pieces of evidence are reliable and whether they can support the charges of conspiracy or any of the other charges framed against each of them. Shri H.C.Goel referred among others, to several of the details appearing in the evidence of P. Ws 17, 26 and 37. and was unable to persuade himself to make a recormmendation to this Court to quash the committal. It is needless to refer to more details or even those referred to by Shri 0. P. Singla when he dismissed the applications filed by the petitioners.
(17) I do not find it necessary or even useful to canvass the question whether the Sessions Judge can drop any charge or charges framed by the committing Magistrate independently of quashing the committal. Section 227 Cr. P. C. gives the power to the Court to alter or add to any charge at any time before the judgment is pronounced. Shri 0. P. Singla has proceeded on the footing that he was only requested by the petitioners not to try the case against them at all, a course, which he rightly said he could not adopt unless the commitment itself was quashed. Shri Singla observed as follows :
INregard to substantive charges no specific arguments were made to this court as to which particular substantive charge required to be amended and it appears to me that the intention of the accused/ applicants is not to stand trial at all but to get the commitiment quashed and to get discharged without a trial.'
(18) After having heard the petitioners at length it seems to me that no inteifrence is called for at this stage. All the Cr. Revision petitions filed by both the petitioners along with petitions for condensation of delay in filing the revision petitions are dismissed. No need arises to pass any order in Cr. Misc. 345/73 (in Cr. Rev. 149/73) and in Cr. Misc. 343/73 (in Cr. Rev. 148/73) to excuse the delay in filing the above said two revision petitions.