2014 (11) TMI 979 - HC - Central Excise

Commission of offence under Section 9 - Validity of Order passed by the Magistrate - Held that - Petitioner filed a written submission in support of his earlier discharge application u/s 245(2) Cr.P.C. It further appears that the learned Magistrate has not decided the said application of the petitioner claiming discharge rather he fixed the next date for remaining evidence u/s 244 Cr.P.C. whereas this Court vide order dated 6-12-2013 has directed to decide the said discharge application on merit in accordance with law within a period which shall not exceed a period of three months. This court has also observed that if the concerned court after hearing the counsel for the accused persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application u/s 245(2) Cr.P.C. and on the other hand if the lower court even after hearing the counsel for the accused holds the view that the accused has been rightly summoned and the material produced by the complainant does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits. - order dated 26-7-2014 passed by the Magistrate concerned does not appear to be proper and accordingly the learned Magistrate is directed to decide the application for discharge moved on behalf of the petitioner u/s 245(2) Cr.P.C. within a period of three months

Summary

Issues:
Challenge to impugned order in a complaint case under Central Excise and Salt Act, 1944. Proper disposal of discharge application under Section 245(2) Cr.P.C. by the Magistrate.

Analysis:
The petitioner filed a petition to quash the order in a complaint case alleging an offense under Section 9 of the Central Excise and Salt Act, 1944. The petitioner had earlier approached the court via an application under Section 482 Cr.P.C., which was disposed of with directions for the petitioner to press the discharge application. The Magistrate had not decided the discharge application but instead fixed the matter for remaining evidence under Section 244 Cr.P.C. The court observed that the Magistrate did not comply with the previous order properly by not deciding the discharge application as directed. The court directed the Magistrate to decide the discharge application within three months as per the previous order.

The learned counsel for the petitioner argued that the entire proceeding of the complaint case should be challenged. The court noted that the petitioner had approached the court previously with a discharge application under Section 245(2) Cr.P.C., which was not decided by the Magistrate. The court directed the Magistrate to decide the discharge application within three months, as per the previous court order. The court emphasized that the discharge application could be decided at any stage before taking remaining evidence under Section 244 Cr.P.C. No coercive action was to be taken against the petitioner until the discharge application was disposed of.

In conclusion, the court found the order passed by the Magistrate to be improper as it did not comply with the previous court order directing the decision on the discharge application. The court directed the Magistrate to decide the discharge application within three months and ordered no coercive action against the petitioner until the application was disposed of. The petition was finally disposed of with these observations.