2006 (7) TMI 101 - HC - Customs

Application for discharge from prosecution Applicant directed to file such application after recording of evidence before charge Application on basis of CESTAT order, is premature so file the application u/s 245(1) of Code of Criminal Procedure at appropriate stage

Summary

Issues:
Challenge against rejection of application under Section 245(2) of the Code of Criminal Procedure based on Customs Excise and Gold (Control) Appellate Tribunal's order. Premature filing of application. Delay in prosecution presenting evidence before charge.

Analysis:

The petition was filed against the rejection of the application under Section 245(2) of the Code of Criminal Procedure by the Chief Metropolitan Magistrate, Esplanade, Mumbai. The application was based on the order of the Customs Excise and Gold (Control) Appellate Tribunal. The Magistrate observed that it was premature to assess the nature of the accused's statements without evidence of coercion or inducement. The Magistrate highlighted the difference in rules of admissibility of statements in adjudication proceedings and criminal trials. The Magistrate noted that the accused could file a discharge application under Section 245(1) after the prosecution presents evidence before charge. The Sessions Court affirmed this decision. The petitioner argued that the department had not presented evidence before charge, leading to the challenge of the Magistrate's and Sessions Judge's orders.

The High Court, after considering the case's facts and the Magistrate's observations, disposed of the petition as premature. The court directed the complainant to present evidence before charge promptly, preferably within six months. The accused were allowed to file a discharge application under Section 245(1) at the appropriate stage. This decision aimed to ensure justice by allowing the prosecution to present evidence before the accused sought discharge, aligning with the procedural requirements of the Code of Criminal Procedure.