2018 (10) TMI 173 - HC - Customs

Offences punishable under Sections 132 and 135 of the Customs Act, 1962 - Pre-charge/post-charge evidence for prosecution - acts of commission or omission relating to the period of August, 1994. Held that - A criminal case arising out of a complaint, though lodged by a public servant, given the nature of accusations levelled therein with reference to the provisions of Customs Act, 1962 requires to be tried as a case instituted otherwise than on police report under Chapter XIX of Cr.P.C. - the complainant is called upon to lead evidence at a stage which is commonly known as pre-charge‟. Ideally, going by the expressions used (take all such evidence as may be produced in support of the prosecution)‟ in Section 244(1) of Cr.P.C., the complainant must adduce its evidence in entirety at the stage of pre-charge evidence and it is only thereafter that the trial court Magistrate takes a call as to whether the accused is entitled to be discharged or, conversely, as to whether charge is made out for he to be put to trial thereupon, in terms of further provisions contained in Section 246 - The provision contained in sub- section (6) of Section 246 further clarifies that the law does not insist on the entire evidence to be produced at the stage anterior to framing of charge. The words evidence of any remaining witnesses for the prosecution shall next be taken appearing in the said clause leaves no room for doubt that the reliance of the complainant (or prosecution) cannot be restricted to the evidence that had been tendered at the stage of pre-charge evidence. Instead, the evidence presented at the stage of pre-charge may be supplemented by the remaining‟ evidence. While parting, this court, however, records its agreement with the grievance of the respondent as to the inordinate delay in conduct of the trial on the complaint presented by the petitioner. Twenty two years have already passed and there seems to be no end to the prosecution which seems to be turning into persecution. A citizen cannot be subjected to such harassment. There will have to be some sense of urgency and expedition. The mis-fortune is that the petitioner has not demonstrated any resolve to show expedition even in the petition at hand which has remained pending over three years, its counsel not inclined to appear on the matter being called out. It is directed that the petitioner will be entitled to produce all its remaining witnesses on two specific consecutive dates which shall be fixed for such purpose by the trial court upon receipt of copy of this order. In case of any default on the part of the petitioner, its right to lead further evidence will stand exhausted and closed, and no indulgence to be shown - petition disposed off.

Summary

Issues:
Challenge to order of Chief Metropolitan Magistrate restricting examination of witnesses post framing of charge, Interpretation of Sections 244-246 of Cr.P.C., Delay in trial proceedings.

Analysis:
1. Challenge to Order of Chief Metropolitan Magistrate: The petitioner filed a petition under Section 482 of the Cr.P.C. challenging the order of the Chief Metropolitan Magistrate restricting the examination of witnesses post framing of charge. The impugned order limited the petitioner's opportunity to examine only those witnesses who had been examined at the pre-charge evidence stage. The petitioner sought to examine two additional witnesses, including one Rajvir Singh Juneja. The High Court found substance in the petitioner's grievance and set aside the order, allowing the prosecution to examine the additional witnesses requested.

2. Interpretation of Sections 244-246 of Cr.P.C.: The High Court delved into the interpretation of Sections 244-246 of the Cr.P.C. concerning the procedure for trial of warrant cases instituted otherwise than on a police report. It was emphasized that the complainant is required to lead evidence at the pre-charge stage, and the trial court decides whether the accused should be discharged or charged based on the evidence produced. The court clarified that the law does not mandate all evidence to be presented before framing the charge, as evidenced by Section 246(6) allowing for the presentation of remaining evidence post pre-charge stage.

3. Delay in Trial Proceedings: The High Court expressed concern over the significant delay in the trial proceedings, noting that the case was already twenty-two years old. The court highlighted the need for urgency and expedition in the trial process to prevent prosecution from turning into persecution. Despite the petitioner's lack of diligence in the pending petition, the court directed the petitioner to produce all remaining witnesses on specific consecutive dates to expedite the trial. The trial court was instructed to conclude the trial expeditiously, preferably within six months from the next fixed date.

In conclusion, the High Court allowed the prosecution to examine additional witnesses, clarified the procedure for trial in warrant cases, and emphasized the importance of expediting trial proceedings to prevent undue delay and harassment to the parties involved.