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TMI Blog1988 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the said Court praying that the prosecution in a private complaint should not be conducted by the Public Prosecutor since the final report of the C.B.I, investigation with regard to the same case had not been submitted to the court. That petition was returned to the petitioner stating that separate petition should be filed for each remedy. After returning the petition the court directed the prosecution to examine the witnesses and 22 witnesses had been examined and the cross-examination of all those witnesses on behalf of the petitioner has been deferred. 3. The Inspector of Police, C.B.I, registered the case with regard to the same offence for which a private complaint has been laid and investigation was completed. However, no final report under Section 173 Cr. P.C. has been submitted by the Inspector of Police, C.B.I., Madras. Under Section 210 Cr. P.C. if during the trial of a private complaint, it is revealed that the Police investigation with regard to the same offence is in progress, the Court conducting the private complaint should stay all further proceedings and call for the final report from the Police Officer and then try the cases although it is a case instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) Act, 1947 and Section 135 (1)(a)(ii) of the Customs Act, 1962. The complaint had been filed under Section 6 of the Imports and Exports (Control) Act, 1947. The petitioner is contending that inasmuch as it is a private complaint the prosecution should not be conducted by the Public Prosecutor of C.B.I. since the Special Public Prosecutor, C.B.I. is not competent to conduct the prosecution, and the Collector of Customs cannot authorise the Special Public Prosecutor C.B.I, to conduct the prosecution and even if there had been any authorisation to the Special Public Prosecutor such authorisation is illegal and the Special Public Prosecutor C.B.I is not a pleader to appear for any other department other than the Central Government. It is also further contended on behalf of the petitioner that in this case, there had been investigation by the Special Police establishment, but the investigation did not result in filing a report under Sec. 173(2) Cr. P.C. and inasmuch as the case has been instituted on a private complaint the procedure will be different and the procedure contemplated in private complaint cases has to be followed. But the witnesses and the documents procured in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r those Acts are clothed with the power of investigation as defined in the Code and as explained by the Supreme Court in the above said two decisions. The learned Judges have discussed the procedure followed with regard to investigation under Sections 154 to 173 in Chapter XIX of the Code of Criminal Procedure and have pointed out about the filing of the report by the concerned Police Officials. Dealing with the provisions relating to the powers of officers under the Customs Act, 1962 and the Gold (Control) Act, 1968, which are analogous to some of the provisions contained in the Code of Criminal Procedure, have also referred to the decision of the Supreme Court reported in State of Punjab v. Barkat Ram AIR 1962 SC 276 in which majority of the learned Judges held that the Customs Officer either under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 is not a police officer for the purpose of Section 25 of the Evidence Act, and also another decision of the Supreme Court in Badak Jyoti Svant v. State of Mysore AIR 1966 S.C. 1746 = 1979 E.L.T. (J 323), and on a similar point with regard to an officer of the Railway Protection Force in Utter Pradesh v. Durga Prasad, AIR 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1947, but also under the Indian Penal Code. Section 6 of the Imports and Exports (Control) Act, 1947, lays down that no Court shall take cognisance of any offence punishable under Section 5 except upon complaint in writing made by an officer authorised in this behalf by the Central Government by general or special order, and no court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence. So it is clear from the above said section that only a Presidency Magistrate or a Magistrate of First Class shall try the offence punishable under Section 5 of the Imports and Exports (Control) Act, 1947. Having regard to the said provision the complaint had been filed under Section 6 of the Imports and Exports (Control) Act, 1947, for the offence under the Customs Act, 1962, as well as the offence under the Indian Penal Code. It should be noted that under Section 11 of the Customs Act, 1962, the Central Government is empowered to issue notification prohibiting either absolutely or subject to such conditions the import or export of goods of any specified description and in sub-section (2) of Section 11 the description of the goods had been given. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice Establishment and the copies of other documents have not been furnished to the petitioner as well as the other accused. It has not been done so in view of the fact that a complaint had been given. Under such circumstances, it cannot be said that investigation is still going on and therefore Section 210 Cr. P.C. is attracted and the trial of the case has to be stayed. As regards the statements given by the witnesses during investigation and other documents procured during investigation, if they are used by the prosecution it will always be open to the petitioner and the other accused to invoke either Section 161 Cr. P.C. or Section 145 of the Indian Evidence Act. In this connection it is to be mentioned that the learned counsel appearing for the respondent, viz. the Special Public Prosecutor, investigated but a complaint was filed, the Delhi High Court has directed the prosecution to furnish copies of all the documents relating to investigation against the said decision there is an appeal pending in the Supreme Court. But having regard to the provisions contained in Section 161 Cr. P.C. and Section 145 of the Indian Evidence Act, it cannot be stated that the petitioner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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