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TMI Blog2008 (9) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Once charges have been framed during pendency of the quashing proceedings, the petitioners have to challenge the order framing charges for getting any effective relief and against such an order revision would be maintainable. The petitioners have not done so, quashing petition, under these circumstances, can not be held maintainable, petition is accordingly dismissed - - - - - Dated:- 8-9-2008 - Ranjit Singh, J. REPRESENTED BY : Shri Arvind Singh, Advocate, for the Petitioner. Shri Rajiv Malhotra, SGC, for the Respondent. [Order (Oral)]. This petition filed in the year 2007 is for quashing of complaint dated 5-5-1981 (Annexure P-1) and the summoning order dated 5-5-1988. The petitioners were summoned for an offence under Section 9 of the Central Excises and Salt Act, 1944. Prayer further is for quashing of the order dated 4-2-2005, Annexure P-4, passed by Chief Judicial Magistrate, Ludhiana, declining the prayer of the petitioners to discharge them on the ground that they stood exonerated by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, against which no appeal was preferred. The petitioner filed a revision against the said order befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery purpose. Surprisingly it would be noticed that the case has remained pending from 2001 to 2005 for consideration on charge. On 4-2-2005, a prima-facie case was found and the charge was framed under Section 9-C of Central Excise and Salt Act, 1944. The case is still pending. The explanation as submitted for cause of delay is no explanation at all. Let Chief Judicial Magistrate, Ludhiana furnish reasons in detail on the support of zimini orders as to why this case has remained pending for such a long period of 19 years. The reasons be furnished by the adjourned date without fail. 3. On 20-11-2007, the Court felt alarmed with the state of affair, which was described as pathetic. It was noticed that the Judicial Officers, who had dealt with this file, can not be allowed to escape their respective responsibility. It is disgusting to notice that adjournment after adjournment was granted in this case either on account of non-availability of witness or record or the counsel of the Department. This Court observed that a conscious Judicial Officer could not be expected to remain a silent spectator to this lethargic state of affair and allow the case to drift like this. The Court acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 9-5-91, again no evidence of the complainant was present and the case was adjourned to 12-9-91 for evidence of the complainant. On 12-9-91, no evidence of the complainant was present and the case was adjourned to 7-1-92 for evidence of the complainant. On 7-1-92, no evidence of the complainant was present and the case was adjourned to 20-2-92 for evidence of the complainant. It would be proper to mention here that on 7-1-92, accused Rajinder Pal was also not present and his presence was exempted on the application filed by his counsel. On 20-2-92, no evidence of the complainant was present and the case was adjourned to 25-5-92. On 25-5-92, again no evidence of the prosecution was present and the case was adjourned to 9-10-02 for pre-charge evidence. On 9-10-92, no evidence of the prosecution was present and even the lawyers were on strike, as such, the case was adjourned to 17-12-92. On 17-12-92, the courts remained closed for the second half due to death of an advocate, as such, the case was adjourned to 5-3-93. On 5-3-93, the personal appearance of accused Rajinder Pal Mangal was exempted on application of his counsel. In the jimni order, there is no reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Presiding Officer was on leave and the case was adjourned to 25-9-97 by the Duty Magistrate. On 25-9-97, the presence of the learned defence counsel and the case was adjourned to 20-1-98 for the evidence of the complainant. There is no mention of the presence of the witness on 25-9-97. On the subsequent dates i.e. 20-1-98, 30-4-98, 12-6-98, no evidence of the prosecution was present and even accused Rajinder Pal Mangal was exempted from personal appearance on all the said dates. On the next date i.e. 19-8-98 the Presiding Officer was on leave and the case was adjourned to 25-9-98. Even on 19-8-98, the accused was exempted from personal appearance. On 25-9-98, accused Rajinder Pal Mangal was again exempted from personal appearance. Since no evidence was present on 26-11-98, the case was adjourned to 25-1-99, 7-3-99, 25-5-99, 20-8-99 respectively but no evidence of prosecution was present and case was adjourned by the Court. On all the aforesaid dates, accused was exempted from his personal appearance. On 12-10-99, witness Pritpal Singh Chawla was present but he could not be examined for want of record and case was adjourned to 19-11-99 for evidence of complainant. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent and the case was adjourned to 4-7-01 for evidence of the prosecution. It would be proper to mention here that the presence of accused was also exempted on that date. On the next dates i.e. 4-7-01 and 21-8-01, again accused were exempted from their personal appearance. Since no witness was present on both the dates, the case was adjourned to 5-12-01. On 5-12-01, pre-charge evidence was closed by the complainant and the case was adjourned to 13-2-02 for consideration on charge. On 13-2-02, the Presiding Officer was away to Amritsar as he was to appear as a witness in some cases, as such, the case was adjourned to 18-4-02. On 18-4-02, the presence of the accused was exempted and on the request made by both the counsels for the parties, the case was adjourned to 10-6-02 for consideration on charge. On 10-6-02, the case was adjourned to 9-7-02 on the request made by the accused as the defence counsel was not available. On 9-7-02, the presence of the accused was exempted and the case was adjourned to 21-8-02 for consideration on charge. On 21-8-02 the presence of the accused was exempted and the case was adjourned to 11-11-02 for consideration on charge. On 11-11-02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration on charge. On 4-2-05, the argument on charge were heard. The Court found a prima facie case under Section 9 of the Central Excise and Salt Act, 1944 against the accused and they were ordered to be charged. Since the accused were not present, the case was adjourned to 21-2-05 for framing of the charge. On 21-2-05, the accused again did not appear. Their personal appearance was exempted on the application moved by the learned defence counsel and the case was adjourned to 28-3-05 for framing of the charge. On 28-3-05, again accused did not appear and the case was adjourned to 3-4-05 on the application moved by the learned defence counsel. Since 3-4-05 was declared a holiday, as such, the file was taken up on 4-4-05 and on that date, accused Rajinder Pal Mangal did not appear and the case was adjourned to 30-4-05 for framing of charge. On 30-4-05, the Presiding Officer was away to Kapurthala for appearing as a witness in some case and the case was adjourned to 7-6-05. But in the meantime, an order had been received from the Court of Ld. Addl. Sessions Judge, Ludhiana staying the proceedings of the trial court. Thereafter, the file was sent to the court of Ld. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. Since the learned counsel for the complainant requested for adjournment, he was granted one more opportunity to conclude on 5-10-07. 5. It is further observed in the letter by the Chief Judicial Magistrate that evidence of the complainant could have been concluded but the proceedings were stayed on 5-10-2007. No doubt from the orders, as reproduced above, major reasons for delay in conclusion of this case could be attributed to the complainant. Number of times, the case was adjourned as no evidence of the complainant was present or the counsel was not present. Some times, adjournment was granted on the ground that the original record was not available. In between, the petitioners had also moved an application, seeking exemption from their presence. The case was also adjourned on account of strike by lawyers or on account of death of an Advocate. On few occasions, the personal presence of the accused was exempted. In the year 1993, the accused moved an application under Section 245(2) Cr.P.C. for their discharge. After decision of this application, on few occasions, the accused did not come present and sought their exemption from personal appearance. The case had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the case to conclude the same, especially so when it was found that the case is pending for the last 19 years or so. This approach certainly is not acceptable. I deem it appropriate to direct that this aspect of the matter be placed before the present Hon ble Administrative Judge of Session Division Ludhiana to take action as considered appropriate against all the Judicial Officers who happen to deal with the case and have allowed this delay to take place, which is callous on their part. As already noticed, it will not be appropriate to quash the proceedings only on the ground of delay as the petitioners are equally responsible for causing this delay by seeking adjournments and exemption on numerous occasions. They have also, in between, obtained the stay of the proceedings. Under these circumstances, this ground of attack to quash the proceedings can not be accepted and is hereby rejected. 7. Though the main reason, which weighed with the Court to issue notice in this case was delay, when the same was pointed out to the Court yet the counsel for the petitioners has now submitted that the proceedings against the petitioners are liable to be quashed on the ground that the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that setting-aside of penalty proceedings by the Tribunal against the assessee did not bar the prosecution for an offence under Section 276(c) and 277 of the Income Tax Act. This view of Andhra Pradesh High Court was affirmed by the Supreme Court. In short, all these facts, where the same fact would give rise to criminal liability, are required to be established before a Court, before any consideration is shown to the petitioners for quashing this complaint. These aspects are required to be physically proved by leading relevant evidence. It would not be appropriate to quash the proceedings only on this ground. It will still be open for the petitioners to raise all these pleas before the Trial Court. In fact, the petitioners have not apparently raised these pleas before the Trial Court. During the pendency of these proceedings, charges have been framed against the petitioners. The petitioners apparently have not raised any such plea before the Court at the time of framing charge. If the petitioners had raised all these pleas before the Trial Court, the same were bound to be taken note of, which is not reflected anywhere. The petitioners have yet to raise any challenge against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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