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Dhanraj JaIn and ors. Vs. B.K. Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ1297
AppellantDhanraj JaIn and ors.
RespondentB.K. Biswas and ors.
Cases ReferredState of Madras v. C.V. Parekh
Excerpt:
- .....484 of the new criminal procedure code is as follows:section 484- repeal and savings - (1) the code of criminal procedure, 1898 (5 of 1898) is hereby repealed.(2) notwithstanding such repeal-(a) if, immediately before the date on which this code comes into force, there is any appeal, application, trial, enquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the code of cri. procedure, 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old code), as if this code had not come into force: provided that every inquiry under chapter xviii of the old code, which is pending at the commencement of.....
Judgment:

Sudhamay Basu, J.

1. This rule relates to an order dated the 8th of February, 1975, passed by Shri R.N. Kali, learned Metropolitan Magistrate, 11th Court, Calcutta, framing charges under Section 5 of the Imports and Exports (Control) Act, 1947, read with Section 120-B, I.P.C. against the accused petitioners in case No. C/2140 of 1941 (Sic) (1971?) and for quashing the proceedings in the said case.

2. It appears that Sri B. K. Biswas, Deputy Chief Controller of Import and Export filed a complaint on 23-9-1971 before the learned Chief Presidency Magistrate for some offences under Section 5 of the Imports and Exports (Control) Act, 1947, read with Section 120-B I.P.C. against the petitioners and another alleging that the petitioners Dhanraj Jain and Sushil Kumar Jain were the partners of M/s. D. R. Kumar Brothers of P/10, New Howrah Bridpe Approach Road, Calcutta, and of M/s. Orient Trade Enterprises, 2/78, Rup-nagar, Delhi, both the firms being registered with Director of Industries, Haryana, in 1964 as small scale industries. The allegation, further, is that M/s. D. R. Kumar Brothers was also registered under Engineering Export Production Scheme as manufacturers and exporters on the condition, inter alia, that the said firm would utilise imported materials as per terms and conditions of the licence. It is further alleged that twelve import licences were issued in favour of M/s. D. R. Kumar Brothers and M/s. Orient Trade Enterprises between 25th of March, 1967, and 21st of August, 1968, on condition that the properties imported against the licences shall be utilised only in the factory at Haryana for production purposes and that no portion shall be sold or permitted to be utilised by any other party. It is further alleged that between 19-12-1967 and 19-12-1968 the accused sold the imported zinc ingots to different parties instead of utilising them in the production of Haryana factory on actual user basis. The petition of complaint contains the names of a large number of witnesses. After examining 23 witnesses the learned Metropolitan Magistrate framed charges against the petitioners. The said order and the proceedings are challenged in the present petition.

3. Mr. Dhar appearing in support of the rule urged a number of points. The first hurdle that faces him is Section 397(2) of the new Criminal Procedure Code which provides that the power of revision shall not be exercised in relation to any interlocutory order. Framing of charges is nothing but written formulation of specific accusation and communicated to the accused so that he may defend himself. The controversy between the parties cannot be said to be finally set at rest by framing charges. We have already held in the case of Biswanath Agarwala v. State reported in 1975 Cal HCN 164 : (1975) 2 Cal LJ 440 : 80 Cal WN 141 that framing of charge is an interlocutory order.

4. Mr. Dhar argued that the revision petition should be governed by the old Criminal Procedure Code since it relates to a trial which was pending when the new Criminal Procedure came into existence. In this connection he relied on three decisions. The first case he cited is that of D. Singh v. S. Sarma reported in 1975 Cri LJ 1710 (Madh Pra). In that case it was held by a Division Bench of the Madhya Pradesh High Court that appeals and revisions applicable to cases pending on 1st of April, 1974, the trial of which was required to be held according to the provisions of the old Code will be governed by the old Code. The reasoning, it appears, is as follows:

There is no doubt that procedure in law can be made to operate retrospectively in the sense so as to apply it to pending cases but where the legislature has made a specific provision that all pending cases will be governed by the old Code we are of the opinion that the old Code alone will apply in respect of appeals and revisions.

It is not clear on what basis the appeals and revisions are placed in the same category. It is also not clear what is exactly meant by 'cases'.

The next case cited by Mr. Dhar was Narain Mahton v. Mahesh Prasad reported in 1975 Cri LJ 1400 (Pat). This was a decision of the Patna High Court in which an interlocutory order in relation to proceedings under Section 145 of the old Code was held to be not barred under Section 397(2) of the new Criminal Procedure Code, 1973. In that case proceedings initially commenced under Section 144 of the old Code on 7-3-1970 were converted into one under Section 145. An interlocutory order passed by the learned Magistrate was challenged in the High Court when an objection was taken under Section 397(2) Criminal P. C. The High Court observed 'Objection cannot be taken to be well founded. This proceeding having commenced in 1970 which was merged before coming into force of the new Code its disposal was to be effected under the old Code as provided under Section 484 of the new Code'. With great respect we are unable to appreciate the reasoning which seems to be that since the revisional application relates to old proceeding commenced under the old Criminal Procedure Code the old Code should apply.

Another case cited before the Court was Baldev Singh v. State of Punjab reported in 1975 Cri LJ 1662 (Punj) (FB). That was a case before a Full Bench of the Haryana and Punjab High Court. The case against the petitioner was registered eight days before the new Code came into force. The sanction for prosecution not having been obtained no final report had been filed in the trial Court. The court held that investigation of the case was not completed and that being so by virtue of Section 484(2)(a) of the new Code the investigation of the case against the petitioner should be continued and completed in accordance with the old Code. There is hardly any scope for dispute about the said proposition. But the same is hardly of assistance to the petitioner in this case.

5. Now, Section 484 of the new Criminal Procedure Code is as follows:

Section 484- Repeal and Savings - (1) The Code of Criminal Procedure, 1898 (5 of 1898) is hereby repealed.

(2) Notwithstanding such repeal-

(a) If, immediately before the date on which this Code comes into force, there is any appeal, application, trial, enquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Cri. Procedure, 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force: Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;

(b)...

(c) ...

(d)...

It will be seen that Sub-section (2) (a) mentions five categories of proceedings; (i) Appeal, (ii) Application; (iii) Trial, (iv) Enquiry and (v) Investigation. If any of these five categories was pending immediately before the date on which the new Code came into existence, the same will be governed by the old Code. Appeal is one of the five categories mentioned in the said sub-section. 'Revision' as such is not mentioned there. The word 'application' also has no adjective or adjunct added to it. It is not clear how a revision petition is sought to be made synonimous with an appeal in the Madhya Pradesh case. [D. Singh v. S. Sarma 1975 Cri LJ 1710].

A revisional application, unlike an appeal, is not a continuation of the old proceeding to which it relates. The revisional application before us was not clearly pending when the new Code came into force. It is an original application initiating a proceeding. It relates to a pending trial but is neither a trial nor an appeal nor an enquiry or investigation which are referred to in Section 484(2). It is nothing but an application contemplated under the said section, and therefore, not being a pending one, the new Code has to apply in respect of the same. It is well known that revision is a discretionary remedy to which no litigant has a vested right. It was held in the case of S. Singh v. Inder Sain reported in 1974 Cri. LJ 1361 (Him Pra) that in a criminal revision there is not even a right reposed in the petitioner to be heard on merit. The petition, therefore, cannot be said in any sense to be a continuation of the old proceedings. The contention of Mr. Dhar therefore must be negatived. With great respect we are unable to be persuaded by two decisions of the Madhya Pradesh and Patna High Court and feel constrained to differ from the same.

The view we have expressed above seems to be endorsed by a decision of the Orissa High Court (Bhima Naik v. State reported in 1975 Cr LJ 1923). The Court held on the facts of that case that the proceeding under Section 107 Criminal P. C. which was initiated prior to the commencement of the new Code would be included under Section 484(2)(a) as it was pending on 1-4-1974 when the new Code came into force. But a revision filed against the impugned order would be under the new Code as the right to file revision was not a vested right. The revisional jurisdiction would be exercised with reference to Sections 397 and 401 of the new Code. In another case of the Delhi High Court, Bhupendra Kumar Bhatnagar v. State reported in 1975 Cr LJ 1185 (Delhi) in which facts were somewhat similar to the facts of the present case, the Delhi High Court held that framing of charge does not decide the question of guilt or innocence of the accused but merely keeps the proceedings alive and therefore, it was not a final order. It further held that by virtue of Section 397(2) of the new Code the powers of revision conferred on the court could not be exercised in relation to such an interlocutory order.

6. Mr. Dhar further contended that the circumstances of the case called for the exercise of inherent power of the Court. He submitted that the complaint which related to a non-cognisable case was not made by an officer who was duly authorised. But the said contention is not borne out by facts. The complaint, in fact, was initiated by Deputy Chief Controller of Exports and Imports. By an order No. 10/65, dated the 1st of December, 1965, signed by the Chief Controller of Imports & Exports, Ministry of Commerce, Import Trade Control, in exercise of the powers under Section 6 of the Imports & Exports Act, 1947, the Central Government authorised, amongst others the Deputy Chief Controller of Imports & Exports to make complaint in writing in court in respect of offence punishable under Section 5 of the said Act. Mr. Dhar next argued that there was in fact no evidence against one of the petitioners namely, Dhanraj Jain and invoking the well-known case of Kapoor v. State of Punjab reported in : 1960CriLJ1239 he submitted that the Court should quash proceedings to prevent abuse of the process of court. According to him, the evidence tendered in this case does not warrant framing of the issues. We are, however, unable to accept his contention. It appears that Ext. 21/1 was an application for licence which was signed by Dhanraj Jain. It also transpires, amongst other things, from the evidence of P.W. 19 that certain articles were also received by Dhanraj Jain. He is also a partner of the firm. Under such circumstances, we cannot hold that the framing of charge even needs to be quashed. Mr. Dhar laid considerable emphasis on the case of State of Madras v. C.V. Parekh reported in : 1971CriLJ418 to point out under what circumstances a partner or Director may be found guilty. The same case, however, is of no assistance to him inasmuch as the hearing in this case has not yet come to a conclusion. It is now only in the stage of, framing of charge and the application of principles laid down in the said case would be premature. Mr. Dhar further argued under what circumstances the charge of conspiracy can be justified. It is not necessary for us to consider this question. Our observation at this stage might prejudice Mr. Dhar's clients. We will not go into details as the same may have a bearing on the question of merits of the case eventually. We are of the view that the framing of charge is an inerlocutory order and the same cannot be quashed or interfered with under the revisional powers of the Court in view of Section 397(2), We do not find that the learned Magistrate lacked any jurisdiction to pass the impugned order. The circumstances of this case do not call for the exercise of inherent powers of the Court.

The petition, therefore, must fail. The Rule is discharged.

The records may be sent down as early as possible.

Chanda, J.

7. I Agree.


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