2022 (8) TMI 341 - HC - Customs

Smuggling - gold biscuits of foreign origin - power of Magistrate to discharge the accused under Section 245(2) of Cr.P.C. - HELD THAT - In the case on hand, the learned Magistrate without examining any witnesses straight away had taken cognizance on the complaint lodged by the respondent and issued summons to the petitioners - 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. Therefore, 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 the case on hand, upon presentation of the complaint, with out examining witnesses the learned Magistrate had taken cognizance and straight away issued summons to the petitioners. Therefore, even 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 Magistrate ought not to have taken cognizance as against the petitioner even before recording their statements. Therefore, the impugned proceedings cannot be sustained as against the petitioner and it is liable to be set aside - Petition allowed.

Summary

Issues:
Quashing of proceedings in C.C.No.73 of 2017 under Section 135(1)(b) of the Customs Act without examining witnesses and following Cr.P.C. provisions.

Analysis:
The petition sought to quash the proceedings in C.C.No.73 of 2017, where the respondent alleged the transportation of foreign-origin gold biscuits. The respondent intercepted a vehicle carrying gold biscuits valued at Rs.4,52,40,000. The petitioners argued that the Magistrate issued summons without examining witnesses, contrary to Cr.P.C. provisions. The offense under Section 135(1)(b) of the Customs Act carries a maximum punishment of seven years, making it a warrant case. Section 245 of Cr.P.C. empowers the Magistrate to discharge the accused if the charge is groundless.

The petitioners contended that the Magistrate prematurely took cognizance without following the Cr.P.C. provisions. Referring to a Supreme Court judgment, they argued that the Magistrate must examine witnesses before framing charges. The judgment highlighted the stages from Section 200 to 204 of Cr.P.C., emphasizing the importance of evidence before charging the accused. The petitioners emphasized the need for a proper examination of witnesses before issuing summons.

The judgment discussed the wide import of the term "cognizance" in the context of Cr.P.C. It emphasized that the Magistrate must apply judicial mind and take authoritative notice of the allegations before issuing process. The Magistrate's action of taking cognizance without examining witnesses was deemed premature. The judgment clarified that the phrase "at any previous stage of the case" refers to a case where cognizance has been taken, which had not occurred in this instance.

Consequently, the Court held that the Magistrate erred in taking cognizance before recording the statements of the petitioners. The proceedings in C.C.No.73 of 2017 were quashed, allowing the Magistrate to proceed lawfully. The petitioners were granted the liberty to file a petition under Section 245(2) of Cr.P.C. The Criminal Original Petition was allowed, and the connected miscellaneous petition was closed.