Madras High Court
Shanti Swarup vs Collector Of Customs on 19 February, 1988
Equivalent citations: 1989(39)ELT29(MAD)
ORDER
1. The petitioner is the 8th accused in C.C. 985 of 1986 on the file of the Additional Chief Metropolitan Magistrate (E.O.I.), Madras. This is a petition under Section 482 Cr. P.C. praying for a direction to the Special Public Prosecutor, not to conduct the prosecution in C.C. 985 of 1986, before the Additional Chief Metropolitan Magistrate (E.O.I.) Egmore, Madras.
2. According to the petition the Collector of Customs, Madras, has filed a private complaint under Section 6 of the Imports and Exports (Control) Act, 1947 in C.C. 985 of 1986 before the Additional Chief Metropolitan Magistrate (E.O.I.), Egmore, Madras against the petitioner, and 9 others alleging that they had committed the offences under Section 122-B read with Section 420 read with S. 511 I.P.C. Section 468, 471 read with S. 468, I.P.C. and Section 5(a) of the Imports and Exports (Control) Act, 1947 and Section 135(1)(a)(ii) of the Customs Act, 1962. The petitioner filed a petition before 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 on a Police report. So the learned Magistrate has failed to comply with the procedure given in Section 230 Cr. P.C.
4. The Special Public Prosecutor is conducting the prosecution on behalf of the complainant. The Special Public Prosecutor, C.B.I. is not competent to conduct the prosecution in a private complaint initiated by the Collector of Customs, Madras. The respondent- complainant cannot authorise the Special Public Prosecutor, C.B.I. to conduct the prosecution in a private complaint case as there is no valid authorisation to conduct the case as per Section 34 Cr. P.C. Even if there is authorisation, such authorisation is illegal since the Special Public Prosecutor, C.B.I. is not a pleader to appear for any other department other than the Central Government. There is no authorisation for the Special Public Prosecutor C.B.I. to conduct the prosecution for offences under the Imports and Exports (Control) Act, 1947 and Customs Act, 1962. The Special Public Prosecutor cannot file the vakalatnama or memo of appearance on behalf of the complainant since it is not his duty to appear for any Department without authorisation.
5. The petitioner is seriously prejudiced by the prosecution of the private complaint case by the Public Prosecutor since the procedure in regard to summoning of witnesses by the Public Prosecutor is different from that of the procedure followed in a private complaint case. It is against the principles of natural justice, if a Public Prosecutor is permitted to appear and conduct a private complaint case and it will also cause substantial prejudice to the petitioner. The witnesses and documents were procured in the case with the authority of Police and if the witnesses were tried to their previous statement recorded during investigation the same will cause prejudice to the petitioner. Under such circumstances, the Special Public Prosecutor will be directed not to conduct the prosecution in the case.
6. In this case, the petitioner is the 8th accused in C.C. No. 985 of 1986 on the file of the Additional Chief Metropolitan Magistrate which relates to the private complaint filed by the Collector of Customs, Madras, alleging that the accused concerned had committed the offence under Section 120-B read with Section 420, read with Section 511, I.P.C. Section 468, 471, read with Section 468 I.P.C. and Section 5(a) of the Imports and Exports (Control) 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 Section 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 during investigation will be used by the prosecution and the witnesses are likely to be tied to the previous statement recorded during investigation and in such circumstances, the accused will be prejudiced and hence the Special Public Prosecutor has to be directed not to conduct the prosecution in this case. Learned counsel for the petitioner submitted the decision reported in Asst. Collector of Central Excise (Preventive) Madras v. Krishnamurthi 1983 L.W. Crl 196 and the said decision has been rendered by a Division Bench of our High Court and it has been rendered in connection with some appeals filed by the Assistant Collector of Central Excise, Madras, under Section 377(2) Cr. P.C. through his counsel on the ground of inadequacy of sentence awarded. The Division Bench consisting of Natarajan J. as he then was and Ratnavel Pandian J. held ultimately that the Assistant Collector of Central Excise is not competent under Section 377(2) Cr. P.C. to file the appeals through his counsel on the ground of inadequacy of sentence. The learned Judge dealt with S. 135 of the Customs Act, Ss. 8(1) and 65 of the Gold Control Act, 1968, Rule 126-B of the Defence of India (Gold Control) Rules, 1962, and also the meaning of 'investigation' under Section 2(b) of the Criminal Procedure Code. The leaned Judges have pointed out that a plain reading of Section 377 Cr. P.C. shows that while Section 377(1) empowers the State Government, save as otherwise provided in sub-section (2), to direct the Public Prosecutor to present an appeal for enhancement of sentence only in certain categories of cases, viz. (1) when the offence has been investigated by the Delhi Special Police Establishment, or (2) when the offence has been investigated by any other agency empowered to make investigation under any Central Law other than the Criminal Procedure Code. Thus, a reading of sub-section (2) clearly shows that so far as the Central Government is concerned, its power is restricted only to the abovesaid two categories of cases. The learned Judges dealing with the meaning of the term 'investigation' and also considering the judgment rendered by the Supreme Court in H. E. Rishbud v. State of Delhi and State of Madhya Pradesh v. Marbak Ali, examined the provisions under the Customs Act, 1962, and the Gold Control Act, 1968, to see whether the concerned officials under those Acts are clothed with the power of investigation as defined in the Code and as explained by the Supreme Court in the abovesaid two decisions. The learned Judges have discussed the procedure followed with regard to investigation under Section 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 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 , and on a similar point with regard to an officer of the Railway Protection Force in Uttar Pradesh v. Durga Prasad, and in Bal Kishan v. State of Maharashtra, 1980 Crl. L.J. 1424 1988 L.W. Cr. 28 and a decision of our High Court reported in Mani in re. 1966 L.W. Cr. 195 F.B. and other decisions rendered by the Maharashtra High Court and the decision of the Supreme Court in Himath v. State of Maharashtra , and pointed out that the several provisions contained in the Customs Act, 1962, cannot be said to be providing a separate machinery for the purpose of investigation of crime. Learned Judges have pointed out that neither in the Customs Act, 1962 nor in the Gold (Control) Act, 1968 there is provision for investigation. Learned counsel for the respondent also placing reliance in the same judgment has pointed out that in the said decision learned Judges have referred to two decisions of the Supreme Court reported in Eknath v. State of Maharashtra, and State of Maharashtra v. Mahipati, , and have also extracted what the Supreme Court observed, which is as follows -
"In our view, therefore, the scheme of the Act is to enforce the provisions of the Customs Act and to prevent the evasion of Customs duty. The machinery created under this Act is not one for the purpose of investigation into crimes. It is only the side effect resulting from the enforcement of the Customs Act that certain offences are detected. Certain imports and exports without licence are also detected. Since they also constitute offences on the basis of the material collected, a prosecution can be launched as provided in Chapter XIV. The machinery is, however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that is a separate machinery for the purpose of investigation of crimes by- passing the provisions of the Criminal Procedure Code."
7. From the above decision it is clear that there is no provision for investigation under the Customs Act, 1962. Likewise, there is also no provision in the Imports and Exports (Control) Act, 1947, for investigation by any one of the officers concerned. In this case, the report is shown to have been filed by the Collector of Customs and the case was investigated by the Special Police Establishment. The offences alleged against the petitioner and the other accused concerned in the case are not only under the Customs Act, 1962 and the Imports and Exports (Control) Act, 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. Likewise under Section 45 of the Customs Act, 1962, there are restrictions regarding custody and removal of imported goods and under Section 50 there is a provision for making an entry regarding the export of goods before the proper officer and clearance of goods for supervision under Section 51. Under Section 3 of the Imports and Exports (Control) Act, 1947, the Central Government has got the power to make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases subject to exceptions with regard to import and export of goods. Therefore, under both the Acts Central Government has been vested with the power.
Viewed in the above background it is to be pointed out that the Special Public Prosecutor has been appointed under sub-section (8) of Section 24 Cr. P.C. by the Central Government for the Special Police Establishment, Under Section 2(a) Cr. P.C., Public Prosecutor means any person appointed under Section 24 Cr. P.C. and includes any person acting under the direction of the Public Prosecutor. Having regard to the fact that the Special Public Prosecutor for the Special Police Establishment has been appointed by the Central Government as contemplated under sub-section 8 of Section 24 Cr. P.C. the Customs Department and the Controller of Imports and Exports being Central Government departments, and inasmuch as the case has been investigated by the Special Police Establishment, the contention that the Special Public Prosecutor of the Special Police Establishment cannot prosecute the case instituted on a complaint is without force. Such a contention put forward on the ground that the procedure followed in the complaint case differs from the procedure being adopted in cases where the Special Police Establishment files the charge sheet cannot also be accepted. The contention that the investigation has to culminate in the report being filed by the Investigating Officer as soon as the investigation is completed as contemplated under Section 173(2) Cr. P.C. cannot also be accepted as it has been pointed out earlier that under Section 6 of the Imports and Exports (Control) Act, 1947, cognizance could be taken only on a complaint by an officer authorised in that behalf by the Central Government by general or special order. No doubt in this case the statements of witnesses during investigation by the Special Police 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.
8. 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 other accused are in a disadvantages position in this regard. Learned counsel for respondent also submitted that the decision reported in Kadiresan v. Kasim and others 1987 L.W. Cr. 64. It is a decision rendered by David Annoussamy J. and the learned Judge has discussed Ss. 210, 391, 302 and also Section 24 of the Criminal Procedure Code and while dealing with the definition of 'Public Prosecutor' under Section 2(u) Cr. P.C. and S. 24 Cr. P.C. has also pointed out that there are certain Government agencies which file private complaints and which are represented by the Special Public Prosecutor. In that way there may be Prosecutors or Assistant Public Prosecutors for private complaints cases. Even in the petition in paragraph 6 it has been stated that even if there is any authorisation by the Collector of Customs to conduct the prosecution by the Special Public Prosecutor such authorisation is illegal because Special Public Prosecutor of C.B.I. is not a pleader to appear for any other the department other than the Central Government. The said contention cannot at all be accepted on the face of it in view of the fact that the Customs Department and the Imports and Exports department are only departments of the Central Government. In that view also the prosecution being conducted by the Special Public Prosecutor of the Special Police Establishment cannot be said to be wrong. Thus, on a careful consideration I am unable to accept the contention put forward on behalf of the petitioner and accordingly I find the petition has to be dismissed. In the result, the petition is dismissed.