Bombay High Court
Ravindra Kumar Rastogi vs Central Bureau Of Investigation And Anr on 31 January, 2020
Author: A.M.Badar
Bench: A.M.Badar
(15)WPNo.57822019(corrected).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5782 OF 2019
WITH
CRIMINAL WRIT PETITION NO.4808 OF 2019
Subhash Chandra Rastogi ... Petitioner
Versus
Central Bureau of Investigation & Ors. ... Respondents
WITH
CRIMINAL WRIT PETITION NO.5783 OF 2019
WITH
CRIMINAL WRIT PETITION NO.5784 OF 2019
Ravindra Kumar Rastogi ... Petitioner
Versus
Central Bureau of Investigation & Anr. ... Respondents
.....
Mr.Shyam Dewani with Mr.Yadunath Chaudhari with Mr.Aman
Vacher i/b. Mr.Chinmaya Acharya, Advocate for the Petitioners.
Ms.Rebecca Gonsalvez, Advocate for the Respondent No.1.
Mr.S.V.Gavand, the Additional Public Prosecutor for the
Respondent No.2/State.
....
CORAM : A.M.BADAR J.
DATED : 31st JANUARY 2020.
P.C. :
1 Ms.Gonsalvez, the learned Counsel suo moto enters
appearance on behalf of the Respondent No.1/CBI.
Gaikwad RD 1/6
(15)WPNo.57822019(corrected).doc
2 Heard the learned Counsel for the petitioner as well as
the learned Counsel appearing for the respondent No.1/CBI.
3 It is urged on behalf of petitioners that action initiated
by issuance of show cause notices and directions thereunder to
redeposit draw back duty has resulted in two parallel proceedings
viz. Proceedings for recovery and the First Information Report
leading to prosecution of petitioners. It is further argued that
ultimately civil proceedings are decided in favour of petitioners
and that decision is upheld by the Apex Court of the land. So, the
criminal proceedings arising from same transaction needs to be
quashed.
4 The leaned Counsel for the respondent No.1/CBI has
argued that the petitions, as framed and filed, are not
maintainable. Out of four petitions, three petitions are not
required to be heard immediately as there is no urgency to deal
with those matters. I am afraid that such a course cannot be
adopted as petitions involving same issues cannot be heard
separately on different dates.
Gaikwad RD 2/6
(15)WPNo.57822019(corrected).doc
5 Order of the learned Single Judge is pointed out by the
learned Counsel for the CBI to submit that petitions, as framed
and filed are not maintainable. It is also urged that the petitioners
are dealing with the offences punishable under the Prevention of
Corruption Act and, therefore, the proceedings should not be
stayed.
6 I have heard the submissions so made and also perused
the material before me.
7 Two parallel proceedings commenced out of the very
same incident. A show-cause notice came to be issued by the
Commissioner of the Customs Department directing the petitioners
to re-deposit the draw back claimed within a period of thirty days.
That show-cause notice came to be replied to by the petitioners
and ultimately the concerned Authority, on 27/12/'2007 was
pleased to drop those proceedings. The Department then went in
a appeal before the Central Excise and Gold Control Appellate
Tribunal. However appeal of the Department came to be
Gaikwad RD 3/6
(15)WPNo.57822019(corrected).doc
dismissed on 19/09/2000. During pendency of that appeal, the
FIR for the offence punishable under Section 420 of the Indian
Penal Code came to be filed against the petitioners.
8 It is also seen from the record that the Orders of
dismissal of the appeals of the Customs Department came to be
challenged by the Customs Department by filing Civil Appeal
before the Honourable Supreme Court. In that Civil Appeal, the
prosecuting agency i.e. CBI had filed an application for
intervention. The learned Counsel for the petitioners submitted
that then the Honourable Supreme Court had remitted the matter
back to the Tribunal for passing fresh order with liberty to CBI to
participate in the said proceedings. The learned Counsel for the
petitioners submits that the prosecuting agency i.e. CBI did not
avail the opportunity granted by the Honourable Supreme Court
and did not participate in the proceedings before the Customs
Excise and Service Tax Appellate Tribunal whereby dropping of
show cause notices came to be challenged. Even the Customs
Excise and Service Tax Appellate Tribunal was pleased to dismiss
Gaikwad RD 4/6
(15)WPNo.57822019(corrected).doc
appeals of the Customs Department on second occasion and that
dismissal came to be challenged by the Customs Department by
filing Civil Appeal before the Honourable Supreme Court of India.
It is reported that again the said Civil Appeal came to be
dismissed on 07/09/2007. So far as the petition before this Court
is concerned, this Court had granted liberty to the petitioner/
accused to raise all contentions before the trial Court at the time of
framing of charge and, therefore, the issues are again being
agitated before this Court.
9 In this view of the matter, prima facie, I am of the view
that the petitions as framed and filed are maintainable. When
Civil Proceedings initiated by the Customs Department in respect
of the same transaction came to be decided in favour of the
petitioners even by the Honourable Apex Court, interest of justice
demands that the proceedings before the learned trial Court needs
to be stayed until the matter is heard fully by issuing formal notice
to respondents. Therefore, the Order :
Gaikwad RD 5/6
(15)WPNo.57822019(corrected).doc
ORDER
(i) Issue notice to respondents.
(ii) Mrs.Gonsalves, the learned Counsel waives notice for the Respondent No.1/CBI. The learned Additional Public Prosecutor waives notice for the respondent No.2/State.
(iii) Stand over to 24th February 2020.
(iv) In the meanwhile, qua the present petitioners, interim relief in terms of prayer clause (c), (d) and
(e) in Writ Petition No.4808 of 2019 and interim relief in terms of prayer clause (b) and (c) in Writ Petition Nos.5782 of 2019, 5783 of 2019 and 5784 of 2019 till next date of hearing.
(A.M.BADAR, J.) Raju D. Gaikwad Digitally signed by Raju D. Gaikwad Date: 2020.02.06 16:59:13 +0530 Gaikwad RD 6/6