Delhi High Court
S.K. Sinha vs S.K. Shingal And Anr. on 5 March, 1987
Equivalent citations: 1987(1)CRIMES842, 32(1987)DLT91, 1988(15)ECC333, 1988(17)ECR433(DELHI), 1987(30)ELT900(DEL), 1987RLR231
JUDGMENT Malik Sharief-Ud-Din, J.
(1) The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr P.C. for quashing the proceedings pending against him before the Metropolitan Magistrate under Section 135 of the Customs Act.
(2) The petitioner stands charged of the aforesaid offence and in pursuance of an application moved by the petitioner under Section 245(2) Cr.P.C. for dropping the proceedings, the learned Magistrate declined to do so on the ground that after charge he has no power to do so. The learned counsel for the petitioner has nothing to say about this order and that is why he has approached this court under Section 482 Cr. P.C. Although I am not sitting as a Revisional Court I must point out that the order of the learned Magistrate in rejecting the application under Section 245(2) Cr. P.C. is quite legal because there is no power vested in the trial court to discharge an accused person after being charged.
(3) The facts of the present case are that the adjudication proceedings against the petitioner under the Customs Act were initiated before the Collector of Customs wherein the Collector imposed a fine of Rs. 1,00,000.00 . This fine was reduced to Rs. 10,000.00 by the Board by way of appeal. The petitioner thereafter, went to the Customs, Excise and Gold Control (Appellate) Tribunal, New Delhi and vide its order dated 31-1-1985 his appeal was allowed.
(4) It may be noticed at this stage that facts and the evidence on which the petitioner is being prosecuted now before a criminal court are in no way different than what was adjudicated upon by the departmental authorities. The incident relates to the year 1975 and the prosecution was started in the year 1975. The charge against the petitioner was framed in the year 1982 when the final results of the departmental adjudication were not available. It was only after the findings of the tribunal came that the application was moved before the court below and finally after the finding that the learned Magistrate had no power, this court has been approached for redress.
(5) Mr. Mahajan has relied upon the case Assistant Collector of Customs, Bombay and another v. R.L.Melani and another, . This case in effect lays down that in order to drop the proceedings by a criminal court the petitioner must show that there is a finding in existence on the same set of facts by the court of competent jurisdiction which had power to try the offence He contends that adjudication proceedings before a Customs Authority is no prosecution nor is such an authority a court. I must with respect disagreed because what was under examination in that case was the scope of Article 20(2) of the Constitution of India. The contention in that case was that after having been exonerated by a departmental authority the department could no initiate criminal prosecution as it would amount to double jeopardy. The Supreme Court held that the Collector of Customs was not trying a criminal case and was sitting in departmental adjudication, which is no bar to the criminal prosecution and it does not amount to double jeopardy. In fact the Supreme Court held that there is no voilation of Article20(2).
(6) Mr. Grover has invited my attention to the case Uttam Chand and others v. I.T.O. Central Circle, Amritsar reported in I.T.R. Volume 133(1982; page 909. This is relied upon in support of the contention that in case the departmental authorities on a particular set of facts come to the conclusion that there is no case it cannot initiate prosecution on the same set of facts and evidence and if at all, it happens, such proceedings will be a fit case for inter reference by the court and must be quashed. In that case the petitioner and other; had been prosecuted for filing false returns and the prosecution was under Section 227 of the Income-tax Act. Ultimately the Income-tax Tribunal or the basis of assessment of the material found that the firm was genuine but before this finding had come, the prosecution against the partners of the firm had been initiated. In Revision the High Court of Punjab & Haryana refuse to interfere but the Supreme Court ultimately concluded that in view of the findings recorded by the Appellate Tribunal the assessed could not be pro secuted for filing false returns. To me it appears that this citation is on all fours with the set of facts with which I am faced.
(7) It is not denied that earlier remedy provided against the decision of the Board was to approach the Central Government by way of Revision. This power, in fact, practically stood transferred to the Customs, Excise and Gold Control (Appellate) Tribunal after it came into existence. The Tribunal, a such is essentially successor to the Central Government though it is independant. The powers of the Tribunal are limited, inasmuch as it can either learned off a person against whom adjudication proceedings have been initiated or it can at the most direct confiscation and impose fine. It cannot pass a sentence of imprisonment. The Tribunal being successor of the Central Government is now taking decisions in place of the Central Government. A decision by the Tribunal in the proper sense of the word therefore, is a decision of a departmental authority drawn on the basis of a set of facts and evidence. The least that can be said is that if the department does not feel aggrieved of the finding of the Tribunal and accepts it as final and correct, then it has to be contented with it. I, therefore, fail to understand as to how on the same of facts and evidence, the department can foist criminal liability upon a person about whom it has accepted that on this set of facts and evidence he cannot even be proceeded against in the adjudication proceedings. In criminal matters the degree of proof required is far more strict. If the departmental authority, has no good case, for purposes of adjudication, it cannot claim to have a good case for purposes of criminal prosecution, particularly when the prosecution is also based on the same set of facts and evidence. It will be unjust to require the petitioner to go through the entire process of the prosecution in the circumstances of this case. This might virtually amount to persecution and in my view this will amount to abuse of the process of the court. In view of the findings of Tribunal there is no case against the petitioner. It is as such not legal to prosecute the petitioner of a criminal offence on this set of facts and evidence.
(8) With these remarks the petition is allowed and the proceeding under Section 135-A(a) pending against the petitioner in the court of Shri O.P. Gogna, Metropolitan Magistrate, New Delhi is hereby quashed.