Calcutta High Court
Union Of India (Uoi) vs Madan Dey And Anr. on 26 June, 1990
Equivalent citations: 1991CRILJ347, 1991(34)ECC48
JUDGMENT Ajit Kumar Sengupta, J.
1. This appeal by the Union of India is directed against the order of acquittal made by the learned Metropolitan Magistrate, 3rd Court, Calcutta, in a proceeding initiated under Section 135 of the Customs Act, 1962 and Section 85 of the Gold (Control) Act, 1968.
2. Shortly stated the facts are that acting on an information, the Customs Officers raided the shop under the occupation and control of the opposite party No. 1, Madan Dey at 36, Nalini Seth Road, Calcutta on 31st. July, 1976. The search resulted in the recovery of gold items from inside the wooden desk in the said shop and Indian Currency amounting to Rs. 3,800/- and some incriminating documents from inside the iron safe. The gold items so recovered from the shop were seized on the reasonable belief that those were of smuggled origin and are liable to be confiscated under the Customs Act, 1962 and the Gold Control Act, 1968, since the opposite party No. 2, Mohan Dey, who was person in charge of the shop, at that time could not produce any documentary evidence in support of lawful acquisition and possession of the seized gold items. Both the opposite parties are stated to have made voluntary statements before the Customs Officers. In his voluntary statement, Madan Dey, opposite party No. 1, admitted to have committed the offence. However, the opposite party No. 1 took the plea at the time of trial that he was not present at the shop when the seizure was made and he knew nothing about the gold. As regards the alleged voluntary statement, he denied having made any such statement and that his signature on the alleged statement was extorted by threat and coercion by the Customs officials.
3. The defence of the opposite party No. 2 was that he was not the owner of the shop and that he knew nothing about the recovery of the gold and the voluntary statement as alleged to have been made by him was obtained from him by the Customs officers by threat and coercion.
4. The learned Magistrate firstly held that the initiation of the proceeding in this case was bad and on that ground alone, the accused persons being the opposite parties were entitled to an order of acquittal. This view was taken by the learned Magistrate following the decision of the Division Bench of this Court in the case of Union of India v. Remo Morgani reported in (1980) 1 Cal HN p. 388. There, the question was whether complaint filed by an officer of the Customs representing Union of India without specific authority was illegal. There, the Division Bench of this Court held that the appeal not having been filed by the complainant and the complainant who filed the complaint having not been authorised by the Union of India to file the complaint, neither was the complaint nor was the appeal competent or maintainable. In the instant case, the petition of complaint shows that the Assistant Collector of Customs and Superintendent, Preventive, service was representing the Union of India. Accordingly, the learned Magistrate following the decision in Remo Morgani (Supra) held that the concerned officer was not competent to file the complaint against the accused persons. On that ground, he held that the Assistant Collector of Customs could not represent the Union of India as he was not authorised by the Union of India to do so. According to the learned Magistrate, the Union of India can be represented by a person only if he has been duly authorised to do so by the President of India. Accordingly he was of the view that the opposite parties were entitled to be acquitted of the charges.
5. On the merits also he held that the prosecution could not bring home the charges and failed to prove beyond reasonable doubt the charges against the opposite parties. In that view of the matter, the learned Magistrate acquitted both the opposite parties. This appeal is directed against the said order of acquittal.
6. This matter was heard analogously with other similar matters where Mr. Biswaranjan Ghosal, Senior Advocate appeared.
7. At the hearing before us, both Mr. Ghosal and Mr. R. K, Deb the learned counsel on behalf of the Union of India have contended that the learned Magistrate passed the order of acquittal in the instant case entirely on the basis of the decision of this Court in Remo Morgani (1980 (1) Cal HN 388) (Supra) which was subsequently followed by another Division Bench in Arun Sohu v. Haridas Arora reported in 1984 Cr LJ 1028 (Cal) and Union of India v. Gorachand Seal (Cr. Appeal No. 143 of 1982) decided on 14th March 1989 by another Division Bench decision of this Court. It is contended that in the aforesaid two subsequent decisions, a contrary view was taken. It is submitted that earlier Division Benches took a technical view in respect of the filing of the complaint and even where the case is proved beyond any reasonable doubt, the order of acquittal has been made because the complaint was not filed by an officer of the Union of India with specific authorisation by the President of India. In a case like this, where there are conflicting opinions on the question of maintainability of the complaint, ordinarily we would have referred this matter to the larger Bench for determining the correctness of the decisions referred to above. However, having regard to the principles laid down by the Supreme Court in the decisions cited before us to which we shall presently refer, it is not necessary for us to refer the matter to the larger Bench.
8. At this stage, it is necessary to analyse the reasons which weighed with the different Division Benches to come to conflicting and contradictory conclusions. Let us now turn to the first decision rendered by N. C. Mukherjee and Sudhindra Mohan Guha JJ. in Union of India v. Remo Morgani (1980 (1) Cal HN 388) (Supra). In that case, a petition of complaint was filed by Sri A. M. Sinha, Assistant Collector of Customs in the Court of the Chief Presidency Magistrate and charge under Section 135(b) of the Customs Act, 1962 was framed against the accused in that case. After trial, the Magistrate acquitted the accused. In that case, the learned counsel for the accused contended that according to the scheme of the Criminal Procedure Code, a public servant can file a complaint on his own in discharge of his official duties. When the public, servant files a complaint in discharge of his official duty he, as an individual, becomes the complainant for all purposes of the Code. He does not represent the State or the Union of India or any authority to whom he is subordinate. It was also the contention that the Customs Act is silent as to filing of a complaint. Had there been any specific provision in the Act to the effect that any officer of the Customs may file a complaint representing the Union of India, then the Assistant Collector of Customs could represent the Union of India by virtue of the said provision. An officer merely because that he is an officer of the Customs Department cannot represent without any authority in that behalf. Incidentally, it was also contended that the appeal preferred by the Union of India was also not competent because the Union of India was not the complainant and it has no right of appeal under Section 417(3) of the old Code or under Section 378(4) of the new Code. The Division Bench, however, after considering the contentions raised by the learned counsel for the accused persons in that case, came to the following conclusion:
"We find much substance in the contention raised by Mr. Ghosh to the effect that the valuation has not been proved satisfactorily. That being so, it cannot be said with certainty that the goods were not eligible for importation. After a careful consideration of the arguments advanced by the learned Advocates for the parties, we accept the argument of Mr. Ghosh that the appeal not having been filed by complainant and the complainant who filed the complaint having not been authorised by, the Union of India to file the complaint, Sri Jivan Krishna, the Customs Officers who has filed the appeal was not competent to file the same. There is nothing to show that Sri Jivan Krishna could represent the Union of India. We, therefore, accept the preliminary objection raised by Mr. Ghosh that the appeal is not maintainable. We also accept the arguments of Mr. Ghosh on merits. This being the position, we do not find anything to interfere with the order of acquittal."<
9. It is thus evident that the Division Bench was of the view that unless the complaint was filed by an officer duly authorised in this behalf by Union of India, no such complaint can be filed and if such complaint could not be filed the consequent appeal arising out of the order of acquittal in the proceeding initiated by the complainant cannot also be entertained.
10. The next decision is in the case of Union of India v. Subodh Kumar reported in 1984 Cri LJ 367 where the judgment was rendered on 21st January 1983 by B. C. Chakraborti and N. G. Chaudhuri JJ. In that case a contention was raised on behalf of the respondent that the appeal which was preferred by the Union of India was not competent. There the Division Bench observed as follows (at p. 369 of Cri LJ):
"It is to be noted that the petition of complaint was filed in the court below by one Mr. Narsinh, Assistant Collector of Customs, West Bengal. In the memorandum of appeal the appellant has been described as Union of India represented by the Assistant Collector of Customs, West Bengal. The Vakalatnama has been executed by one Kalipada Gupta, Assistant Collector of Customs, West Bengal as distinguished from Mr. Narsinh who had filed the complaint. A similar point arose for decision in the case of Union of India v. Remo Morgani Carlton Hotel reported in (1980) 1 Cal HN 388 and in the Division Bench judgment delivered by N. C. Mukherji, J. It was held that the appeal not having been filed by the complainant and the complainant who filed the complaint having not been authorised by the Union of India to file the appeal, the appeal was not maintainable. The instant case is on all fours with the case relied upon by Mr. Dutta. We have, therefore, no hesitation to hold that in point of law the appeal is not maintainable."
11. Let us now turn to the decisions which took a contrary view. The first decision is in the case of Arun Sahu v. Haridas Arora reported in 1984 Cri LJ 1028 (Cal) where the judgment was delivered by B. C. Chakraborti and S. P. Das Ghosh JJ. In that case complaint was filed by the Assistant Collector of Customs describing himself as complainant in the following manner:
"Union of India represented by A, Asstt. Collector of Customs, West Bengal, Calcutta."
In that case a, contention was raised following the earlier two Bench decisions that a complaint of this type by Union of India represented by Assistant Collector of Customs is not maintainable. There the Division Bench observed as follows (at pp. 1030-31 of Cri LJ):
"A complaint as defined in Section 2(d), Cr. P.C. can be made even orally or in writing with a view to taking of action by a Magistrate. There is nothing in the definition of complaint in Section 2(d), Cr. P.C. which requires it to be made by any person who is actually aggrieved. Cognizance of offence can be taken by a Magistrate on receiving a complaint of facts which constitute such offence or on a police report of such fact and also on information received from any person other than a police officer or on his own knowledge that such offence has been committed. Unlike the provisions in the Civil P.C. showing what particulars should be contained in a plaint in different types of suits and how reliefs are to be stated or founded (vide O. 7 of the Civil P.C.) there is nothing in the Criminal P.C. to show that complaint is to be filed by a particular person or persons. The definition of complaint in Section 2(d) of the Code shows that an allegation can be made in a complaint that an unknown person has committed an offence. There is no provision in the Criminal P.C. for filing of a complaint by a person on behalf of or representing an other person. Order 3 of the Civil P.C. contains provisions for recognised agents and pleaders. O. 27 of the Civil P.C. contains provisions as to how plaints are to be filed in suits by the Government. O. 27, R. 2 of the Civil P.C. contains provision for persons authorised to act for the Government. There is no provision in the criminal P.C. that a complaint can be signed and filed by a person in a criminal court on behalf of another on being authorised by that other person alike the aforesaid provisions in O. 27 of the Civil P.C. In such circumstances, complaint of this case being filed by Nripendra Narayan Roy Chowdhury representing the Union of India cannot be said to be maintainable in the absence of any letter of authority from the Union of India as there is no provision in the Criminal P.C. that the complaint would have been made valid on the basis of any such letter of authority from the Union of India. A public servant may retire from service may be suspended, may be dismissed from service and may even die. That is the reason why in cases of this type involving complaint for contravention of law, complaints are to be filed in the name of Union of India represented by a particular public servant actually filing the complaint. Otherwise, such a case cannot proceed if the public servant as a complainant dies or retires from service or is suspended or is dismissed from service. We do not thus find any irregularity in the filing of the complaint by Sri Nripendra Narayan Roy Choudhury on showing him as complainant in the petition of complaint, though stating in the cause title of the petition of complaint that he was representing the Union of India. The first contention of Mr. Dutta on the basis of the decisions of this Court in the case of Remo Morgani (1980) 1 Cal HN 388 and Subodh Kumar U Mehta (Criminal Appeal No. 65 of 1977) : 1984 Cri LJ 367 or in the case of Suresh Chandra Dutta (Criminal Misc. Case No. 311 of 1983) thus fails."
12. The next decision (still unreported) is in the case of Union of India v. Gorachand Seal (Cr. Appeal No. 143 of 1982) where the judgment was rendered by the Division Bench consisting of Shamsuddin Ahmed and Pabitra Kumar Banerjee JJ. on 14th March, 1989.
13. In that case one Mr. Lahiri Assistant Collector of Customs filed a complaint before the Chief Metropolitan Magistrate alleging the Commission of offence under Sections 85(ii) and 85(viii) of the Gold Control Act, 1968. In filing the said complaint the complainant T. K. Lahiri described the complainant as Union of India. In the complaint it was stated that the complainant (T. K. Lahiri) obtained authorisation in writing as required under Section 97(i) of the Gold Control Act, 1968 which was annexed to the petition of complaint. The Division Bench considered the decision in Arun Sahu (1984 Cri LJ 1028) (Cal) (Supra) and came to the conclusion that as the authorisation was made in favour of the complainant to lodge the complaint, the complaint in question, therefore, did not suffer from non compliance of S. 97 of the Gold (Control) Act, 1968. Accordingly, the learned Magistrate was not justified in acquitting the accused only on the ground that the complaint was not maintainable.
14. Learned counsel appearing for the Union of India have submitted that the view taken in Arun Sahu (supra) and Gorachand Seal (Supra) should be preferred to the earlier view taken in Remo Morgani (1980 (1) Cal HN 388) (Supra). On the other hand the contention of Mr. Dutt, learned counsel for the opposite party is that the matter should be referred to larger bench having regard to the conflict of judicial opinion on the same issue.
15. We have given our anxious consideration to the contentions raised. It is no doubt true that the Division Bench in Arun Sahu (Supra) should have referred the matter to the larger Bench as at that time there were three Bench decisions which took the view that the complaint in the name of Union of India by an officer was not competent. However, at this stage it is not for us to go into the question of propriety of the procedure followed.
16. The complaint as defined in Section 2(d) of the Criminal Procedure Code means any allegation made orally or in writing to a Magistrate with a view to taking action under the Code, that some person whether known or unknown has committed an offence. In general a complaint into an offence can be filed by any person excepting in cases of offences relating to marriage, defamation and offences mentioned in Sections 195 to 197 of the Cr. P.C. In other words, any one can set the law in motion and no specific authorisation is necessary to file the complaint. The complaint is made with the object that the magistrate should take action. No form is prescribed which the complaint may take, An officer may retire, resign, die or may not be otherwise available. Accordingly, it is not necessary that a complaint in case like this should be filed in the name of Union of India or State, as the case may be, so that the appeal, revision etc. may be filed in the name of Union or State even when the officer may retire or resign or die or otherwise not available. A complaint has to be filed by an officer of the Union as representing Union of India, as Union of India has to exercise its power an authority through the officers competent to act on behalf of Union of India. The ends of justice should not be allowed to a sacrificed at the altar of mere technicalities even when the case is proved to the hilt and the accused is found otherwise guilty. The fact that the complaint was not filed by a person duly authorised cannot in our view render the proceedings incompetent or invalid. Reference may be made in this connection to the decision of the Supreme Court in the case of A. R. Antulay v. R. S. Nayak .
16A. There the Supreme Court held as follows (para 6):--
It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder it was not disputed that a private complaint cannot only be filed but can be entertained and proceeded with according the law locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principles gets excluded by such statutory provision. Numerous statutory provisions can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) S. 97 of the Gold Control Act 1968 (iii) Section 6 of Imports and Exports Control Act, 1947 (iv) Section 271 and Section 279 of the Income-tax Act 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973(vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Criminal Procedure Code. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put criminal law-in motion remains intact unless contra indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. and act or omission made punishable by any law for the time being in force (Section 2(n), Cr. P.C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendatta or vengeance. If such is the public policy underlying penal statutes who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision."
17. The aforesaid decision of the Supreme Court makes it amply clear that a crime is as much an offence against society as against an individual and the society as a whole is interested in seeing that the offenders are brought to book. In our view, therefore, it is quite appropriate to undertake prosecutions for serious offences in the name of the State representing the people even when the informant is an individual. The officer submitting a chargesheet in a cognizable case may be an individual police Officer. Thus an officer performing a statutory duty under Section 5 of the Customs Act, 1962 or Section 4 of the Gold (Control) Act, 1968, as the case may be, even a private individual can file a complaint with requisite sanction under Section 137 of the Customs Act, 1962 or S. 97 of the Gold (Control) Act, 1968 as the case may be. In A. R. Antulay (1984 Cri LJ 647) (Supra) the Supreme Court held that even a private complainant could initiate prosecution in a case of corruption with requisite sanction under the Prevention of Corruption Act, 1947.
18. Mr. Deb, learned counsel, has contended, in our view, rightly that even there is a mistake or misdescription in the cause title in describing 'Union of India 'represented by Lallunghnema, Asst. Collector of Customs and Superintendent, Preventive Service", this misdescription, if any, cannot have any such effect as to vitiate the trial or nullify the cognizance already taken on the basis of the facts stated in the complaint, especially when no prejudice is shown to have been caused to the accused or there is no failure of justice as with in the meaning of Section 465 of the Code of Criminal Procedure. In our view, the trial of the accused has not in any way been affected by virtue of lodging of the complaint by an officer of the Customs representing the Union of India. We cannot subscribe to the view that the trial although has been concluded by following the procedure laid down by the Code without causing prejudice to the accused and without occasioning failure of justice such trial will be vitiated merely because the complaint is not filed by the Union of India as such.
19. In this connection the following observation of the Supreme Court in the case of H. N. Rishbud v. State of Delhi, , deserves special attention:--
"Section 190, Cr. P.C. is one out of a group of sections under the heading "conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of other sections of the group under the same heading, i.e. Sections 193 and 195 to 199. These latter sections regulate competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(i) are conditions requisite for taking cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity..... And in any case cognizance so taken is only in the nature of error in a proceeding antecedent to trial. To such a situation Section 537, Cr. P.C. is attracted."
20. Hence where the cognizance of the case has, in fact, been taken and the case has proceeded to terminate, the invalidity of the antecedent investigation or the police report does not vitiate the result unless miscarriage of justice has been caused thereby. Similarly, it would appear that where cognizance has in fact been taken on even an invalid complaint and the case has been tried to a finished, the so-called invalidity in the complaint cannot vitiate the trial. Supreme Court in Rishbud (1955 Cri LJ 526 at p. 534) (supra) observed thus:
"If, therefore, cognizance is in fact taken, on a police report vitiated by breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in course of investigation does not affect the competence and jurisdiction of the Court for trial is well settled as appears from the cases in "Prabhu v. Emperor" and "Lumbhardar Zutshi v. The King" AIR 1950 PC 26 : (1950-51 Cri LJ 644)."
21. Moreover, from paragraphs 1 and 2 of the complaint in the instant case, it will be seen that the Assistant Collector of Customs has, in fact, filed the complaint with requisite sanction in his official capacity as a public servant and misdescription, if any, is only confined to the cause title and not in the body of the complaint. This fact in itself is a strong ground to hold that no prejudice has been caused to the accused and the complaint in the instant case has been validly filed.
22. This problem can be viewed from another angle. The English common law principle requiring every citizen to bring offenders to justice has been incorporated into our legal system in a number of ways. Thus, Section 37 of the Criminal Procedure Code, casts a duty on the public to assist Magistrate and Police; Section 38 of the Criminal. Procedure Code provides that any person may aid in the execution of a warrant directed to a person other than a police officer. Section 39 of the Criminal Procedure Code requires the public to give information of certain offences. Similarly, Section 40 of the Criminal Procedure Code casts a duty upon the officer employed in the affairs of a village and every person residing in the village to report to the nearest Magistrate or to report to the nearest police station. Section 43 of the Criminal Procedure Code empowers a private person to arrest any person who in his presence commits a non-bailable and cognizable offence. These are duties enjoined on the citizen in accordance with the principle of bringing offenders to justice in the interest of protection of society. In fact, there is even a penalty provided for not giving assistance to Magistrate and Police (Section 187 of the Penal Code read with Section 37 of the Criminal Procedure Code) or for not giving information to them (Sections 118, 176 and 202 of the Penal Code read with Section 39 of the Criminal Procedure Code; Section 176 of the Penal Code read with Section 40 of the Criminal Procedure Code).
23. Thus the general principle of setting the law in motion in criminal matters by any one remains unaffected except to the extent indicated by statutory provisions as mentioned in A. R. Antulay (1984 Cri LJ 647) (SC) (supra).
24. It appears that in Remo Morgani (1980-(1) Cal HN 388) (supra) reliance was placed by the defence on Section 20 of the Prevention of Food Adulteration Act, 1954 which specifically lays down that no prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government. The contention was that had there been a specific authorisation in favour of the complainant, the Assistant Collector of Customs, from the Central Government, then only he could have represented the Union Government as he had done, and not otherwise. It was the contention of the defence in that case that the complaint representing the Union of India without specific authorisation was incompetent and illegal. The acceptance of this argument meant that the general rule of setting the criminal law in motion by any one, unless specifically prohibited by a statutory provision, was given a go-by and the statutory exception, as in Section 20 of the Prevention of Food Adulteration Act, was treated as a general rule. In our view, the decision in Remo Morgani (1980(1) Cal HN 388) (supra) goes against the clear verdict of the Supreme Court in A. R. Antulay (1984 Cri LJ 647) (supra) on the question of locus standi in criminal matters and accordingly the same does no longer appear to be good law. The later two decisions of this Court in Arun Sahu (1984 Cri LJ 1028) (supra) and Gorachand Seal (supra) correctly laid own the law as regards the lodging of the complaint by or on behalf of the Union of India.
25. Even assuming that specific authorisation to file complaint representing Union of India was necessary, such an authorisation was implicit in Section 5 of the Customs Act, 1962 and Section 4 of the Gold (Control) Act, 1968 empowering appropriate officers to enforce the provisions of those Acts.
26. Then again, when an officer acts in course of his employment and in accordance with a statutory provision, he invariably represents either the Union of the State Government, as the case may be, just as an Officer-in-charge of a Police Station by submitting a charge-sheet in a cognizable case under Section 173 of the Criminal Procedure Code makes the State a party in every cognizable case. The same appears to be the position either in regard to an offence or a tortious act committed by an officer of the State in course of his employment. Thus, in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta , where the State of West Bengal was running a market obviously through its officer as a non-sovereign commercial activity without obtaining a licence from the Calcutta Municipal Corporation, the Supreme Court in reversing its earlier decision in Director of Rationing and Distribution v. Corporation of Calcutta, held that the State of West Bengal was liable under Section 218 of the Calcutta Municipal Act, 1951 and imposed a fine of Rs. 250/- on the State. Similarly, in Kasturilal v. State of U. P., , where a Police Officer in performing his statutory duties under Section 54(1) of the Criminal Procedure Code had seized considerable quantity of gold from the petitioner as suspicious property and thereafter decamped with the seized gold, it was held that since the police officer had seized the gold on behalf of the State in exercise of the traditional sovereign power of the State, the State could not be held responsible for damages, as a sovereign is not bound by the statute in respect of his sovereign act, i.e. the traditional acts of the sovereign in bringing offenders to book or maintaining the peace of the realm etc. Thus in both the aforesaid cases, the State was represented by its officers though in regard to non-sovereign commercial activities the State was held responsible but not in regard to sovereign functions of the sovereign in seizing suspicious property from a person who appeared to be concerned in an offence.
27. We may usefully refer to the following observation of the Supreme Court in A. R. Antulay v. R. S. Nayak :
"the basic fundamental of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the jusice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice, the wrong must be remedied. This is a peculiar fact of this case which requires emphasis."
28. For the foregoing reasons it must be held that the learned Metropolitan Magistrate was not justified in holding that the complainant in this case was incompetent or invalid.
29. The next question is with regard to the merits of the conviction and sentence of the opposite parties. This appeal, as we have already indicated, is against the order of acquittal made by the Metropolitan Magistrate holding that the prosecution has failed to prove beyond reasonable doubt the charges against the opposite party Nos. 1 and 2. It is now well settled that unless there are substantial and compelling reasons or good and sufficiently cogent or strong reasons, the appellate Court should not interfere ordinarily with the order of the acquittal. We should not interfere with the acquittal of the accused unless the conclusion of the Magistrate is palpably wrong or manifestly erroneous. The articles were not proved to be of foreign origin and accordingly it was contended before the trial Court that Section 135 of the Customs Act against any of the accused persons could not be invoked. The only question was whether the conviction could be sustained under Section 85 of the Gold (Control) Act, 1968. It was found as a matter of fact and which was not in dispute that the shop in which the gold was found was not the shop of opposite party No. 2, Mohan Dey, and the gold was not found in his possession. It was found in a wooden desk. Accordingly, benefit of doubt was given to the opposite party No. 2.
30. So far as Madan Dey, opposite party No. 1 is concerned, the Magistrate relied on the statement made by the said accused. The question was whether such statement was voluntary or not. The learned Magistrate taking into account the entire facts and circumstances of the case was of the view that it was not voluntary and accordingly no conviction can be based on such a statement. Even if the approach of the learned Magistrate in treating the statement made by the accused under Section 313 of the Criminal Procedure Code as evidence is erroneous his ultimate conclusion not vitiated thereby. He took into account all the facts and circumstances of the case and on a consideration of the evidence he was of the view that the prosecution has failed to prove the case against the opposite party No. 1 beyond any reasonable doubt. Even if two views are possible on the same evidence, the High Court should not ordinarily interfere with the finding and conclusion arrived at by the Magistrate. We do not find any compelling reasons in this case to overturn the decision of the Court below on the question of conviction.
31. For the reasons aforesaid, this appeal fails and is dismissed.
Manabendra Nath Roy, J.
32. I agree.