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TMI Blog1988 (9) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... in auction there were some traders from Pune. As per the conditions of the auction the traders were required to take the gold to their places of business. Some traders from Pune purchased gold in auction and carried it within the limits of the 1st Petitioner Corporation on or about 26th September, 1978. On 19th March, 1979 the 1st Petitioner Corporation received a letter from the Collector, Central Excise and Customs, Pune, annexed with the letter dated 17th March, 1978. The Superintendent of Octroi of the 1st Petitioner Corporation received letter No. XVII (SC)-30-131/78/Pune, dated 27th August, 1979 (Ex. 45) (hereinafter referred to as "the document Ex. 45") from the Assistant Collector, Central Excise, Pune, Division I, along with the list of the traders who purchased gold from the Reserve Bank in the auction. It also mentioned the quantity of the gold purchased, the rate at which it was purchased and the value thereof. The dates of import of the gold within the limits of the 1st Petitioner Corporation by the various traders are also mentioned therein. As some of the traders, who imported gold within the limits of the 1st Petitioner Corporation did not pay the octroi leviable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Pune Municipal Corporation preferred this criminal revision application. As there was some delay in preferring the revision application, Criminal Application No. 889 of 1985 was filed for condonation of delay. I have heard the Counsel for the parties on the question of condonation of delay and I find that there is sufficient cause for the delay and hence the said Criminal Application No. 889 of 1985 is hereby allowed and the delay is condoned. 5. The learned Counsel for the petitioners contends that the learned Additional Sessions Judge was not right in entertaining the revision application in view of the provisions of Section 397(2) of Cr.JP.C. He submits that the order passed by the learned Judicial Magistrate allowing the production of the document Ex. 45, subject to the proof thereof, was an interlocutory order and as such, in view of the provisions of Section 397(2) of Cr.P.C., the learned Additional Sessions Judge was not right in setting aside the order of the learned Judicial Magistrate allowing the production and the proof of the document Ex. 45. He next contends that the provisions of Section 107 of the Gold (Control) Act, 1968, are not applicable to the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397 of the Code of Criminal Procedure, 1973. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code [that is, the Code of Criminal Procedure, 1898]. On a plain reading of Section 482 [of the Code of.Criminal Procedure, 19731, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court'. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure, 1973] was not a 'final order' within the meaning of S. 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion, if this strict test were to be applied in interpreting the words 'interlocutory order' occurring in S. 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so, it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by S. 397(1). On such a strict interpretation, only those orders would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion, it must be taken to be an order of the type falling in the middle course." [Squared bracketed portion supplied.] 8. In the present case the order passed by the learned Judicial Magistrate, against which revision was preferred to the Sessions Court, is an order overruling the objection to the production and proof of a particular document. A revision was preferred against that order while the proceedings were pending before the Trial Court. It is to be seen whether the impugned order is an "interlocutory order" within the meaning of that term used in Section 397(2) of Cr.P.C. The mis-reception of evidence overruling the objection raised by the opposite party, in my opinion, cannot form the basis of revision under Section 397(1) of Cr.P.C. and the revisional court, in view of the provisions of Section 397(2) of Cr.P.C., cannot interfere with the said order. By allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese powers can be exercised in exceptional cases only to correct a glaring defect in the procedure or a manifest error of law resulting in a flagrant miscarriage of justice." "We have already referred to the provisions of Section 167 of the Evidence Act. The Judicial Committee considered this section in Abdul Rahim v. Emperor, AIR 1946 P.C. at page 82. At page 85 Lord Macmillan says: The first question submitted relates to the effect of the misreception of evidence. It has been found by the High Court that in the present case material evidence was improperly admitted. What are the powers and what is the duty of the High Court in such circumstances? It was contended for the appellant that the evidence improperly admitted might have so seriously prejudiced the mind of the jury as to have brought about a failure of justice and he was entitled on a new trial to have the verdict of a jury on proper evidence. To this submission Section 167, Evidence Act...... affords a complete and conclusive answer. The improper admission of evidence is there by expressly declared not to be a ground of itself for a new trial. The Appellate Court must apply its own mind to the evidence and after dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the present revision. However, as both the learned Counsels have addressed me on the point, I would like to deal with those arguments. According to the learned Counsel for the respondent No. 1, the sale of gold by auction was by the Reserve Bank of India and the respondent No. 1 purchased gold in the said auction. He points out that the provisions of the Gold (Control) Act do not apply to the gold belonging to or in possession of the Government or the Reserve Bank, in view of the provisions of Section 3 of the said Act. He submits that the tenders received by the Reserve Bank of India from the various traders for purchase of the gold in the auction are not the statements or the declarations made within the provisions of the Gold (Control) Act and, therefore, there is no restriction either on the officers of the Reserve Bank or on the officers of the Central Excise to disclose the information regarding the sale of gold by the Reserve Bank to the traders who submitted the tenders for purchase of gold in the auction. Section 3 of the Gold (Control) Act reads thus: "3. Nothing in this Act shall apply to, or in relation to, - (a) any gold belonging to, or in the possession, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Administrator or the gazetted officer aforesaid, such information is necessary for the implementation of any provisions of this Act; and when such request is made, the officer of Government or Reserve Bank of India, as the case may be, shall comply with such request notwithstanding the provisions of any such law forbidding the furnishing of such information. (4) Nothing in this section shall apply to, and in relation to, the disclosure of any information referred to in sub-section (1) or sub-section (2) - (a) for the purposes of any prosecution for any offence against this Act, or (b) to any officer of Government where it is necessary to make such disclosure to such officer for the purposes of this Act or of any other law." The document Ex. 45 along with the list attached thereto was addressed by the Assistant Commissioner of Central Excise, Pune, to the Superintendent of Octroi of the 1st petitioner Corporation. There is nothing on record to show that the Assistant Commissioner of Central Excise, Pune, who addressed the document Ex. 45 to the Superintendent of Octroi of the 1st petitioner Corporation is an Administrator appointed under Section 4 of the Gold (Contro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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