2022 (7) TMI 668 - HC - Customs

Smuggling - Gold - offences punishable under Section 132 135 of Customs Act 1962 - whether the application filed by the accused even before the complaint is taken on file and even before the sworn statement is recorded is maintainable? - HELD THAT - The offense complained is punishable with a maximum punishment of Seven years and therefore this is a warrant case otherwise than by police report. Therefore Section 245 Cr.P.C is the relevant provision applicable. Discharge under Section 245(1) is after recording of evidence if there is no ground to proceed. Only under Section 245(2) the accused can be discharged at any state prior to the same - if the charge is groundless then the learned Magistrate is empowered to discharge the Accused under Section 245(2) of Cr.P.C. It is in this context this case begs the question that the phrase at any previous stage of case whether would amount even at the presentation and check and call on stage of the complaint that is when the complaint is neither taken on file nor the proceedings under Section 200 of the Code of Criminal Procedure has taken place by examination of the complainant on oath and or taking cognizance of offenses. It is clear that previous stage could be from the stage of Section 200 of Cr.P.C. whereby the learned Magistrate upon taking cognizance is entitled either to straight away issue process or conduct an enquiry by postponing the issue of process under Section 202 of Cr.P.C. Thereafter either he can issue process or dismiss the complaint under Section 203 of Cr.P.C. - depending on the circumstances of the case it can be held that even before the issue of process or examining the sworn statement of the complainant there could be cognizance in a particular case. The only requirement is that the learned Magistrate should have taken authoritative notice of the allegations made in the complaint. In this case upon presentation of the complaint without taking any authoritative notice the matter was simply adjourned to another day with the endorsement check and call on . Neither the complaint is numbered nor the sworn statement is recorded. This is the stage in which the form of the complaint is being looked into before taking notice of any kind of the allegations in the complaint. Though the words at any previous stage of the case is meant to from the stage of inception i.e. under Section 200 of Cr.P.C. the same would not be extended to the check and call on stage as it will be in the domain of the complainant if the complaint is returned to modify add delete the contents of the complaint - the learned counsel for the petitioner is right in contending the application filed by the Accused No. 1 even though the couched in the phrase of dropping of all further proceedings can mean an application for discharge as per Section 245(2) only and still it is pre-mature. Application disposed off.

Summary

Issues Involved:
1. Legality of dropping proceedings against Accused No. 1 before taking cognizance.
2. Applicability of Supreme Court's ruling in Radheshyam Kejriwal's case.
3. Requirement of sanction from the Director General for prosecution.
4. Validity of prosecution based on retracted confession.

Detailed Analysis:

1. Legality of Dropping Proceedings Against Accused No. 1 Before Taking Cognizance:
The primary issue is whether the application for dropping proceedings filed by Accused No. 1 before the complaint was taken on file and before the sworn statement was recorded is maintainable. The court noted that the offense is punishable with a maximum of seven years, making it a warrant case otherwise than by police report. Under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any stage if the charge is groundless. However, the court emphasized that this stage begins after the Magistrate has taken cognizance of the complaint, which involves taking authoritative notice of the allegations. In this case, the complaint was merely adjourned with the endorsement "check and call on," without any authoritative notice or numbering. Thus, the application for dropping proceedings was deemed premature and not maintainable at this stage.

2. Applicability of Supreme Court's Ruling in Radheshyam Kejriwal's Case:
Accused No. 1 argued that the Supreme Court's ruling in Radheshyam Kejriwal's case, which states that prosecution cannot be maintained if the Appellate Authority has decided the case on merits, should apply. The court noted that the Appellate Authority had found the penalties under Sections 114(AA) and 112(b) of the Customs Act unsustainable against Accused No. 1. However, since the preliminary objection regarding the maintainability of the application was upheld, the court did not delve into the merits of this argument at this stage, leaving it open for consideration at the appropriate time.

3. Requirement of Sanction from the Director General for Prosecution:
Accused No. 1 contended that sanction for prosecution should have been obtained from the Director General, as per departmental circulars, since the case was investigated by the Directorate of Revenue Intelligence. The court noted that the learned Magistrate had found that the approval of the Chief Commissioner or Principal Chief Commissioner was not obtained, which was required under circular No. 27/2015. However, the complainant argued that the prior sanction from the Commissioner, as required under Section 137 of the Customs Act, was obtained, and that intra-departmental circulars are binding only on the complainant, not the accused. This issue was also left open for consideration at the appropriate stage.

4. Validity of Prosecution Based on Retracted Confession:
Accused No. 1 argued that the prosecution was based solely on a retracted confession obtained under duress, and therefore, there was no material to proceed against him. The learned Magistrate had considered this argument and found that the prosecution was unsustainable based on the retracted confession. However, since the preliminary objection regarding the maintainability of the application was upheld, the court did not address this issue in detail, leaving it open for consideration at the appropriate stage.

Conclusion:
The court set aside the order of the learned Judicial Magistrate, Special Court for Customs, Alandur, which had allowed the application for dropping proceedings against Accused No. 1. The learned Magistrate was directed to proceed with the complaint in accordance with the law. Accused No. 1 was given the liberty to file a discharge application under Section 245(2) of the Cr.P.C. if he believes the case is groundless, immediately after the Magistrate takes cognizance of the offenses.