Bombay High Court
Harbansingh Kripalsingh vs M.K. Chakarborty And Anr. on 24 September, 1979
JUDGMENT V.S. Kotwal, J.
1. The facts are rather interesting, illustrating how an exercise in unfounded speculations makes the impugned order vulnerable.
2. A complaint was lodged by the Assistant Collector of Customs under sections 135(1)(a) and (b) of the Customs Act in the Court of the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay, which is the subject-matter of Criminal Case No. 23/Cw of 1979. It is contended inter alia in the said complaint that accused No. 2 used to send watches of foreign origin from Bombay to Delhi through accused No. 1, who was being used as a carrier. Accused No. 2, who is the present petitioner, got himself acquainted with accused No. 3, who was at the material time Traffic Assistant in the Indian Airlines Corporation. On April 28, 1973, the petitioner accused No. 2, arranged to send about 1365 wrist watches in two suit-cases through accused No. 1. The petitioner had an inkling as a shrewd person that the weight of those two suit cases would obviously be more than the permissible limit and, therefore, he approached accused No. 3 earlier near a hotel and requested him to help accused No. 1 to clear off the excess baggage. Accordingly, on 28th April, 1973 accused Nos. 1 and 2 came to Santacruz Air-port for boarding a flight from Bombay to Delhi. Accused No. 3 met them at the Air-port and at that time from some distance the present petitioner pointed accused No. 1 to accused No. 3, who assured to do the needful and having been armed with the said assurance, the present petitioner left the Air-port premises. It is thereafter that the accused Nos. 1 and 3 only were left on the scene. It is alleged that while accused No. 1 came with his baggage at the baggage counter, accused No. 3 requested the Traffic Assistant Samant, who has been examined as P.W. 8 to show the excess baggage a little less by 15 Kgs. and thereafter the said two suit cases were carried by accused No. 1, as it appears that Samant was also in a obliging mood to his colleague accused No. 3. At the conveyer-belt the official of the Indian Airlines got suspicious about that baggage and, therefore, the said two suit cases were brought to the Baggage-Counter. Announcement was made in the name 'Paul'. Accused No. 3 also went near the counter and at the instance of accused No. 3 there was a repeated announcement. After some time accused No. 1 turned up at the spot and by that time the official of the Indian Airlines had contacted the Customs Officials. The Customs Officials took accused No. 1 and the suit cases, to the Customs Office where they were opened and those repeated the existence of several watches of foreign origin, which were attached under a panchanama. Accused No. 2 was traced and finally all the three persons were arraigned as accused in the complaint lodged by the Customs Officer.
3. As it was treated as a private complaint, the procedure prescribed under the Code of Criminal Procedure was followed and, therefore, some evidence was led before charge, in the shape of eight witnesses to prove or to make out a prima facie case against the three accused. The bulk of the witnesses pertain to such items which could not directly involve the present petitioner in Customs, while P.W. 2 to P.W. 6 are the Customs Officials, P.W. 7 is one Mehtab Singh, who is a partner of Neelkamal Hotel, where a meeting is alleged to have occurred between accused Nos. 3 and 2 and it is at that juncture that accused No. 3 had assured to oblige accused No. 2. P.W. 8 is a Traffic Assistant Shri Samant, who was also in an obliging mood to support his colleague. This is all the evidence led by the prosecution. After all this evidence was tendered, the prosecution informed the learned Presiding Magistrate that they have closed their case so far as the stage of framing of the charge was concerned and in fact they invited charge-against all the accused persons. This, in my opinion, will have some relevance.
4. After hearing elaborate arguments, as it appears to be hotly done, the learned Magistrate concluded that so far as accused No. 3 was concerned there was no prima facie case made out sufficient even for framing of the charge. In keeping with this finding, the learned Magistrate, by his order dated 9th of August, 1979 discharged accused No. 3. In respect of accused Nos. 1 and 2, the learned Magistrate directed that a charge under sections 135(a) and (b) was required to be framed.
5. As regards accused No. 1, obviously there could be no controversy at least in so far as the framing of charge is concerned and in fact accused No. 1 has not challenged that order. Accused No. 2, who is the present petitioner, has impugned this order in this proceeding.
6. I am really constrained to observe that the learned Magistrate himself was little hesitant in directing the framing of the charge against the present petitioner and the trend of the judgment itself would indicate the said element of hesitancy. It would also be obvious from the judgment that the learned trial Magistrate had to strain himself to find out some material to warrant and justify the framing of the charge. Unfortunately, in that process the learned Magistrate has obviously exceeded the jurisdiction vested in him. The learned Magistrate has thus observed that it would be open for the prosecution to examine accused No. 3, who was being discharged by the some order, as a witness for the prosecution, against the present petitioner and in that even whatever efficiency is present at the relevant stage would be made good by the positive evidence of the said co-accused. The learned Magistrate also appears to be conscious of the fact that the statements of accused Nos. 1, 2 and 3 recorded under section 108 of the Customs Acts by themselves would not be sufficient foundation for framing of the charge against accused No. 2. Having been confronted with this difficulty, the learned Magistrate appears to have observed in the manner which I have indicated earlier, it would be of some advantage if I quote some part of the reasoning of the learned Magistrate himself, which would be more properly explained and reflected in his own words. The learned Magistrate has observed as :
"I have already referred above that the main evidence against accused No. 2 consists of statements of accused Nos. 1 and 3 and there is very little evidence in addition to these statements. However, it must be borne in mind that by this order, accused No. 3 is going to be discharged and in that event, accused No. 3 would be a competent witness and can step into witness-box of state that it was accused No. 2 who asked accused No. 3 to waive the excess baggage. This would be a corroboration to the statement of accused No. 1 that the wrist watches contained in the suit cases were asked to be carried by accused No. 2........... the evidence of accused No. 3 to the effect that it was accused No. 2 who had asked him to interfere in waiving the excess baggage shall negative that part of evidence of accused No. 1. Thus, there would be sufficient evidence on record, which if unrebutted, would warrant conviction and, therefore, there is sufficient evidence to frame charge against accused No. 2."
7. Even a cursory perusal of these observations would leave no manner of doubt that the observations would have no existence in law at all. The last three lines of the observations clearly expose the same. The learned Magistrate observes that if the evidence of accused No. 3 in the substantive form is allowed to be led then that would be sufficient evidence on record which if unrebutted would warrant conviction and he further observes that there is sufficient evidence to frame charge against accused No. 2. It is thus manifest that the learned Magistrate himself observes that the evidence which is likely to be led in future would make the existing evidence sufficient to warrant the justification for the framing of the charge. The employment of the two different sets of words "would be sufficient" and "there is sufficient evidence" are selfeloquent. In my opinion, the said observations contain an absolute falacy inasmuch as the learned magistrate has taken into account something which was never in existence at the relevant time but which was likely to come into existence if certain events occur. This contingency, really speaking, was not in the contemplation of the prosecution also. This apart, the learned Magistrate has not properly considered the scheme of the Code of Criminal Procedure in that behalf.
8. Section 244 onwards in Chapter XIX of the Code of Criminal Procedure relate to cases instituted otherwise than on police report. Section 245(1) stipulates that if, after taking all the evidence referred to in section 244, the Magistrate considers that no case against the accused has been made out, which, if unrebutted, would warrant his conviction, then the Magistrate shall discharge him. Section 246 is the next step in the procedure, which contemplates that a charge can be framed if there is ground for presuming that the accused has committed the offence in question. The terminology used in section 245(1) makes it very clear that the learned Magistrate was enjoined to address himself only to the material that came before him at the stage when the prosecution invited for the framing of the charge. In other words, he could not travel beyond that material and furthermore it would not be permissible to enter into arena of speculations. If it is manifest that the test laid down in section 245(1) is applied to the material that was in existence at the relevant time, then even on the saying of the learned Magistrate himself there could not be a case for framing of the charge. To put it in other form, the learned Magistrate took the crutches of some prospective contingency in vacuum by observing that there would be further evidence in the shape of substantive evidence of accused No. 3, which would corroborate the other evidence that was led by the prosecution so far. In my opinion, this is thoroughly unjustifiable on the plain reading of section 245(1) of the Code. In the analysis, therefore, it follows that the learned Magistrate while dealing with such case is enjoined to address himself only to the material that has come into existence at the time of the framing of the charge and it is that material on the basis of which he must come to a definite conclusion that the material is such that if it goes unrebutted, it would warrant conviction. It may be argued on the basis of the ratio in State of Karnataka v. L. Muniswamy, , though in different context, that the relevant clause would mean that there should be a reasonable possibility of recording a conviction on the material on record if it is unrebutted. It was in the contest of considering whether there was sufficient ground for proceeding against an accused and the case was instituted on a Police report. The provisions contained in section 245(1) of the Code may be even stringent. However, applying any yard-stick about the material if unrebutted being sufficient to warrant a conviction or there being a reasonable possibility of recording a conviction, the conclusion would be the same. The pre-requisite qualification. However, is always that it must be found on the material that is in existence before the Court.
9. Applying this test, it is further clear that there was absolute paucity of material on the basis of which a charge could be framed. The prosecution tendered the documents in the shape of statements under section 108 of the Customs Act of accused Nos. 1, 2 and 3. Shri Patil, the learned Public Prosecutor, tried to argue that the statements of accused Nos. 1 to 3 by themselves are enough to attract the provisions and satisfy the test laid down in section 245(1) of the Code. In other words, he argued that these two statements can be looked into as substantive evidence for the purposes of framing of the charge. I am afraid, such a course is not open inasmuch as there are several difficulties in the way. In the first instance, if one peruses the statement of accused No. 3, it leaves no manner of doubt that it is self-exculpatory, meaning thereby that accused No. 3 tries to exonerate himself of the liabilities. If that was so, it cannot be used under section 30 of the Evidence Act. This is the first hurdle in the way of the prosecution for utilizing statements of accused No. 3 against co-accused. However, assuming otherwise that it can be so utilised then we are faced with a formidable hurdle. It is now well settled principle that a confessional statement or a statement containing incriminating part of co-accused can be utilised against the co-accused only for a limited purpose. It has been held by the Supreme Court that the proper course is to address oneself to other items of evidence excluding a confession of co-accused and arrived at a conclusion that it is sufficient to warrant conviction. It is, thereafter that for lending on additional assurance and tilting the balance in favour of the conclusion that was already arrived at that such statement of co-accused can be looked into. The limited purpose is properly explained by various authorities. If this test is applied, then the argument of the learned Public Prosecutor that these statements form substantive piece of evidence fails. It is more or less an accepted position that beyond these statements, there is not a title of evidence in addition to these statements. Significantly there is no incriminating statement of accused No. 2 himself. I have gone through the record and I am satisfied that the observations of the learned Magistrate about there being very little evidence other than the statement of accused is also not factually correct inasmuch as what the learned. Magistrate perhaps wanted to suggest was that there is not a title of evidence apart from the documentary evidence and, therefore, the impression sought to be created about the existence of any other evidence is not proper. Therefore, the position is that apart from the statements of accused Nos. 1 and 3 there is absolutely no evidence when the learned Magistrate was invited to frame a charge against the accused persons. The statement of accused No. 2 himself is of no assistance to the prosecution for obvious reasons.
10. It cannot be underestimated that these statements also suffer from further infirmities and their effect is further diluted inasmuch as accused No. 1 has himself at one stage stated that he never made such statements at all and in the next statement accused No. 1 came out with a case that he had not named accused No. 2 as the person being his master. Therefore, the effect of the statement of accused No. 1 is sought to be wiped out or at least diluted by his own subsequent statement. This would also indicate that this is a weak type of evidence which is retracted. This retracted nature of the confession creates further difficulties in the way of the prosecution.
11. By the proposed action, as suggested by the trial Court, it would be skipping over one important stage in the trial from the inception to the termination. If the trial Court felt that the evidence of accused No. 3 is to be led after the charge was frame, then really it would be approaching the stage of final order, either of conviction or acquittal, and this would be achieved without meeting the stage of charge. That means, the evidence, if led in future, cannot relate back to the stage of charge as also the evidence which is likely to be led after charge cannot be considered at the stage of the charge itself. The learned Magistrate observed that the evidence of accused No. 3, which would be led after the charge is framed, would be substantive evidence in addition to statements of accused Nos. 1 and 3 under section 108 of the Customs Act, and this, according to the learned Magistrate would be sufficient, if unrebutted, to warrant conviction. The fallacy, therefore committed by the learned Magistrate is to confuse the two stages and he has stipulated that the evidence that could be led after charge could be considered even for the question of determining whether charge could be framed or not and thereby he wants to retrace the step backward in that fashion. It also should be borne in mind that the legislature has deliberately made a distinction in the procedure of a proceeding initiated on police report and one otherwise than on police report. In the former case, there is a procuring of the material by the police, which is reflected in various statements and documents, copies of which are supplied to the Court also and there is implicit therein the satisfaction of the investigating agency to send up the case to the Court and also to warrant the framing of the charge. This is missing in chose cases instituted otherwise than on police report and, therefore, a burden in cast on the Magistrate to himself examine the material so far brought on record and to determine whether a charge could be framed or not. From that point of view, this material stage as contemplated by section 245(1) of the Code cannot be overcome or brushed aside.
12. Shri Jethmalani, the learned Counsel for the petitioner, therefore, rightly submitted that under the circumstances, the impugned order is not tenable in law as also in fact. He has further rightly contended that the statements of accused Nos. 1 and 3 before the Customs Officer, though admissible, cannot be the foundation even for the framing of the charge. Some of the features that emerge out of the record are quite clear and unequivocal. In the first instance, there is no incriminating statement of the petitioner himself before the Customs Officer. The statements of the co-accused before the Customs Officer, though admissible, have their own limitations while considering the case of the petitioner. The statements at least those of accused No. 1 are retracted, whereas the statement of accused No. 3 is self exculpatory. In that case, the statement of accused No. 3 has its further limitation. In any event, such statements can hardly be treated as sufficient evidence against the petitioner even for framing of the charge. It is also obvious that the Court will have to address itself to the existing evidence on record, which should satisfy the test laid down in section 245(1) of the Code of Criminal Procedure. The learned Counsel was further justified in submitting that the learned Magistrate indulged in an exercise in speculations with not even a semblance of any foundation, especially when prosecution not only did not even suggest that they would consider the prospects of examining accused No. 3 as their witnesses, but they strongly invited the Court to frame charge even against accused No. 3. Shri Jethmalani was justified in relying on the rate of Haricharan Kurmi v. State of Bihar, 1964(2) Criminal Law Journal 344, wherein it is observed that the statement of a co-accused would not be sufficient evidence, but it would be simply an assurance to the conclusion of a retracted confession are also brought on the forefront. I may also refer with advantage to the decision in Kashmira Singh v. State of M.P., relying upon the Privy Council authority in Bhubani Sahu's case wherein it is observed that the proper approach would be that after the Court has framed its opinion with regard to the quality and effect of the said evidence other than the confession of the co-accused, it would be permissible to turn to such confession in order to receive assurance tot he conclusion of guilt which the judicial mind is about to reach on the said other evidence. In Balbir Singh v. State of Punjab, , the limitations of a self-exculpatory confession vis-a-vis provisions of section 30 of the Evidence Act are indicated.
13. A further point of law is involved in this proceeding which requires some consideration. I may incidentally observe that the impugned order being an order of moment adversely affecting the right of the petitioner and being in direct conflict with the provisions contained in section 245(1) of the Code of Criminal Procedure cannot be termed as an interlocutory order. It is clear that a substantial and valuable right of the petitioner is obviously being affected by the impugned order and if this is treated as an interlocutory order, then the petitioner will have to be saddled with the liability of facing the trial. Affecting of substantial right cannot be treated as an interlocutory can hardly be a matter of controversy, as so enunciated in (C.S. Mfg. Co. State of Maharashtra), . A similar view has been taken in State of Karnataka v. L. Muniswamy, . It is true that the question of the order being of an interlocutory nature was not in issue in these cases. However, I am incidentally relying on these observation for the restricted purpose to show that framing of the charge does substantially affect the liberty and valuable right of a person. In Amar Nath v. State of Maharashtra, , the question as to which orders can be treated as interlocutory orders came up for direct consideration before the Supreme Court. There the police submitted a chargesheet, against others except the appellants, against whom the police opined that no case was made out and ultimately the final report was sent in respect of the appellants. On perusing the said report, the trial Magistrate set the appellants at liberty. The complainant filed a revision in the Sessions Court and the same met with no success. It is thereafter that a private complaint was filed by the informant against some persons including the appellants, which also came to be dismissed by the trial Magistrate. In revision, the Sessions Court upset that order and remanded the case for further inquiry tot he trial Magistrate. Thereafter, the trial Magistrate immediately issued summons to the appellants straightway. The High Court revision refused to interfere in favour of the appellants on the ground that it was interlocutory order. The Supreme Court repelled the argument that it was an interlocutory order and held in the negative. During the course of the judgment after having a resume of the earlier decision, the Supreme Court observed as :
"It was only with the passing of the impugned order that the proceeding stated and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced or that any right of their was not involved by the impugned order........we are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be in interlocutory matter, but one which decided a serious question as to the rights of the appellants to be put on trial."
14. It is true that the observations indicate that the Court was also concerned with the fact that the Magistrate had straightway summoned the appellants in spite of the earlier developments wherein cognizance was not taken against the appellant in those proceedings more or less on the same facts. However, this was only one of the items and it cannot be said that the said item only governed the decision. On the contrary, it is clear from the trend of the judgment that the Court felt that the appellants were directed to face a trial which was unjustified and, therefore, it resulted into affecting their valuable right and, therefore, it was not an interlocutory order. It is also observed that the term 'interlocutory order' denotes orders of a purely interim or temporary nature, which do not decide or touch the important rights or the liabilities of the parties and it has been used in a restricted sense and not in a broad or artistic sense. It is further clearly indicated that some orders such as summoning of witnesses, adjourning cases, passing orders for bail, etc., which can be said to be steps in aid of the pending proceeding, may, no doubt, amount to interlocutory orders. Thus, the nature of such interlocutory orders has been indicated by the illustrations, which are obviously not exhaustive.
15. In Madhu Limaye v. State of Maharashtra, , similar question arose and a similar argument was advanced which also came to be repelled more or less not he same ground. An order rejecting the application challenging the jurisdiction of the Court to proceed with the trial was held not to be interlocutory order. The Court also considered the illogical result that would be achieved if the concept of the interlocutory nature of the order is extended to all cases. It is also indicated that such an order, as impugned in that case, may not be final in one sense, but surely it was not interlocutory so as to apply the bar of section 397(2) of the Code of Criminal Procedure. It is indicated therein also that some orders may not be final, yet it would not be correct to characterise them as merely interlocutory orders. It is then stipulated that an order rejecting the plea of the accused on a point which, when accepted, will concluse the particular proceeding would certainly not be an interlocutory order. It was also indicated that to have far-fetched extension of the said term would make nugatory the revisions powers of the High Court. Reliance was placed on the observations in Amar Nath's case.
16. In the cases of Amar Nath and Madhu Limaye (supra) the legislative history and the object have been traced. It was indicated that the relevant enactment became necessary to arrest the flow of applications of absolutely temporary nature being agitated at different forums, which retarded progress of the trial. The nature of such applications and the orders thereon are indicated, which could be conveniently called a steps in aid of the trial. Order directing framing of charge can hardly be placed in such category or otherwise it would lead to obviously illogical result. Thus, for instance, an order directing issuance of process in a private complaint is found to be manifestly unsustainable on merits and inspite of this if it is treated as an interlocutory order, then notwithstanding the glaring infirmity, the revisional powers cannot be invoked. Similarly, if it is found that the Court had no jurisdiction to take cognizance of an offence and if such an order is to be treated as an interlocutory, the revisional Court would have to assume the role of idle spectator. Some would apply if in the absence of an iota of evidence, Sessions Court calls upon the accused to enter into defence under section 233 of the Code of Criminal Procedure, if it is to be treated as an interlocutory order. It would be too obvious that at least five fold consideration would arise, such as, it not being purely and absolutely interim or temporary affecting the valuable right of the party patent illegality in the order being allowed to continue that the accused would be forced to face the further proceeding despite the realisation that would be sheer waste of public money and time apart from the harassment to the parties; and the capacity as also the potential of the order, if corrected, to conclude the proceeding and by itself would be relevant.
17. As observed in C.S. Mfg. Co. v. State of Maharashtra, and State of Karnataka v. L. Munishwamy, (supra) the framing of charge is a very important stage requiring strict application of judicial mind and this would also support the view negativing the interlocutory character of the order. It would also be not out of place to observe that if it was otherwise, then the object behind various stages in a trial and even the whole scheme of the Code would be frustrated. Thus, if issuance of process and framing of a charge in a private complaint are to be treated as interlocutory orders, then one can even skip over these steps, because once the charge is framed, there may not be any effective remedy and the trial has to proceed further terminating in the final order of acquittal or conviction in spite of a patent illegality or untenability of the said earlier order, so that it cannot be traced backwards. In effect, therefore, one would not be required to bother to examine the validity of reasons which prompted framing of the charge as one has clearly to assume the role of a silent spectator. The concerned Court also may not be so strict in the matter of application of mind and assignment of reasons in support of its order. I am aware that the aggrieved party may invoke the inherent powers of the High Court under section 482 of the Code of Criminal Procedure and try to seek the relief for setting aside the impugned order. But there obviously would be some limitations on such powers, which are discretionary, and which are also to be utilized sparingly and with circumspection and further the qualifying clause and underlying principle governing that provisions is always that there are no measures provided for in the Code in that behalf, and the case should squarely fall in either of the three categories stipulated therein. The Code is self-contained and complete, embracing every contingency and eventually. It would be unreasonable to assume that the legislature did not in end to provide for any effective remedy in such matters and thereby oblige the litigant to resort to other proceeding such as invoking the powers of the High Court under section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India, or otherwise to force the parties to accept the order as it is at that stage and to force the ordeal of the further trial inspite of the realisation that the impugned order is manifestly untenable. The intention behind enacting the provisions of section 397(2) of the Code of Criminal Procedure curbing down the revisional powers vis-a-vis interlocutory orders would never have been so. The concept of interlocutory order would not have been intended to embrace the situation as in the instant case. The complexion is different when one considers and rightly so that effective remedy is provided for by way of revision. As observed in the two Supreme Court cases cited above, some orders may not be strictly final neither interim and may be mixed ones, falling in between these two categories and such orders would be removed out of the cluthches of interlocutory nature. The purpose of retaining revisional powers in the Court would obviously be frustrated and become nugatory if a rigid and unreasonable construction is sought to be placed on that terminology.
18. I may also refer to one other aspect which is my opinion, furnishes some clue and is very germane to this issue. If there is an order of discharge, it is not treated as interlocutory one and if at that very stage there is an order of framing of the charge, it is sought to be treated as interlocutory one. This illusory distinction appears to be made perhaps on the only ground that in the first case the proceeding comes to an end and, therefore, it is a final order, which is not the case in the second instance. However, in my opinion, that is not the correct test. The real test under the situation, would be not to search for the answer whether the proceeding has actually terminated and thereby gets the finality, but to find out whether the impugned order, if set-aside, has a capacity and potentiality to terminate the proceeding and thereby to get a characteristic of finality. Thus, if the order directing framing of the charge, which appearing to be obviously untenable, is set aside, then ipso facto the resultant order gets a finality terminating the entire proceeding inasmuch as the accused is discharged and, therefore, there is no further trial. It is this capacity and the potential which is more relevant than the actual result, though obviously it would be only one of the various tests. Looked from this angle also, my conclusion is reinforced.
19. In view of the settled position, I am of the opinion that the impugned order is an order of moment vitally affecting the valuable right of the accused and thus cannot be termed as an interlocutory order by any standard. In the case at hand, all the five fold considerations co-exist. The impugned order, therefore, is not covered by the provisions of section 379(2) of the Code of Criminal Procedure and consequently a revision under section 379(1) of the Code of Criminal Procedure is competent.
20. Before parting, one aspect can be incidentally referred to. It is very interesting to note that the prosecution themselves were inviting the learned Magistrate to frame a charge against accused No. 3. In other words, the prosecution did not claim that accused No. 3 deserves to be discharged. The prosecution also did not suggest even obliquely or faintly that it is in their contemplation that accused No. 3 should be discharged so that they can utilize his evidence after framing of the charge against the present petitioner. It is unfortunate that the learned Magistrate himself has taken this onerous task of speculations, which was not at all necessary. Without offering any comments, the least that can be said is that this was obviously exceeding the jurisdiction in law.
21. In the face of this situation, there is no sufficient material on evidence on record which, if unrebutted, would warrant conviction and the inescapable consequence would obviously be that the order directing framing of the charge against the petitioner-accused No. 2 is extremely vulnerable and unsustainable. As such he deserves a discharge. I must observe that the prosecution agency have taken a calculated risk and chance in implicating accused No. 3 and if accused No. 3 came to be discharged, then the blame can lay at the doors of the prosecution.
22. In the result, the Rule is made absolute. The order recorded by the learned trial Magistrate, on 9th August, 1979, directing framing of the charge against the petitioner under section 135(a) and (b) of the Customs Act is set aside and the petitioner, who is original accused No. 2, is discharged of all the offences which are the subject matter of Criminal Case No. 23/CW of 1979 on the file of the Court of the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay.