Bombay High Court
Municipal Corpn Of The City Of Pune vs Motilal Javharmal Bafna on 1 January, 1800
Equivalent citations: 1989(24)ECR83(BOMBAY), 1989(41)ELT247(BOM), 1989MHLJ282
JUDGMENT
1. The Municipal Corporation of the City of Pune preferred this revision application against the judgment and order dated 11th March, 1985 passed by the learned Additional Sessions Judge, Pune, whereby he allowed Criminal Revision applications Nos. 314, 315 of 1984, 316 of 1984 and 317 of 1984. This criminal revision is directed against the order allowing Criminal Revision Application No. 315 of 1984 by the learned Trial Judge.
2. The facts necessary for the decision of this revision application are that the Reserve Bank of India on 17th march 1978 issued a notice of tender for auction of gold. In pursuance of that notice the Reserve Bank received tenders from various traders holding licences under the Gold (Control) Act, 1968, for dealing in gold. The auction of the gold was held by the Reserve Bank on 13th September 1978. Among the traders who purchased gold from the Reserve Bank in auction there were some traders from Pune. as per the conditions of the auction the traders were required to take the gold to their places of business. Some traders from Pune purchased gold in auction and carried it within the limits of the 1st Petitioner Corporation on or about 26th September 1978. On 19th March 1979 the 1st Petitioner Corporation received a letter from the Collector, Central Excise and Customs, Pune, annexed with the letter dated 17th march 1978. The Superintendent of Octroi of the 1st Petitioner Corporation received letter No. XVII (SC)-30- 131/78/Pune dated 27th August 1979 (Ex. 45) (hereinafter referred to as "the document Ex. 45") from the Assistant Collector, Central Excise, Pune, Division I, along with the list of the traders who purchased gold from the Reserve Bank in the auction. It also mentioned the quantity of the gold purchased, the rate at which it was purchased and the value thereof. The dates of import of the gold within the limits of the 1st Petitioner Corporation by the various traders are also mentioned therein. As some of the traders, who imported gold within the limits of the 1st Petitioner Corporation did not pay the octroi leviable on the gold imported within the area of the Corporation, the Corporation through its Checking Naka Officer - Petitioner No.2 - filed complaints in the Court of the Judicial Magistrate, First Class, Pune Municipal Corporation, Pune, on 28th January, 1980 against the respondent No. 1 for the offences punishable under Section 398 of the Bombay Provisional municipal Corporation Act, 1949, read with Rules 24 and 29 of the Octroi Rules framed by the 1st Petitioner Corporation, and it was registered as Criminal Case No. 775 of 1980.
3. After the respondent No. 1 denied the charge framed against him, the learned Judicial Magistrate started recording evidence of the petitioner No. 2 - complainant. On 24th July 1984 when the evidence of the complainant was being recorded, he produced a letter dated 20th July 1989 received from the Assistant Collector of Central Excise, Pune, addressed to the superintendent of Octroi of the 1st Petitioner Corporation. At that time the Advocate for the respondent No. 2 filed an application strongly opposing the production of the said letter on the ground that under Section 107 of the Gold (Control) Act, 1968, all particulars contained in any return or declaration made or accounts, registers or other documents produced in accordance with the said Act are required to be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1972, no court shall be entitled to require any concerned authority under the said Act to produce before it any such return, declaration, accounts, registers or other documents or any part thereof or to give evidence before it in respect thereof. The learned Judicial Magistrate by his order dated 30th August 1984 below the document Ex. 45 overruled the objection and admitted the document Ex. 45 on record subject to the proof thereof according to law. Feeling aggrieved by the said order dated 30th August, 1984 passed by the learned Judicial Magistrate, the respondent No. 1 preferred revision to the Session Judge, Pune. That revision was registered as Criminal Revision Application No. 315 of 1984, and that revision along with similar revisions filed by others were heard by the learned Additional Sessions Judge, Pune (Mr. R.K.Benawal), and he allowed the revision and set aside the order dated 30th August 1984 passed by the learned Judicial Magistrate.
4. Feeling aggrieved, the Pune Municipal Corporation preferred this criminal revision application. As there was some delay in preferring the revision application, Criminal Application No. 889 of 1985 was filed for condonation of delay. I have heard the Counsel for the parties on the question of condonation of delay and I find that there is sufficient cause for the delay and hence the said Criminal Application No. 889 of 1985 is hereby allowed and the delay is condoned.
5. The learned Counsel for the petitioners contends that the leaned Additional Sessions Judge was not right in entertaining the revision application in view of the provisions of Section 397(2) Cr.P.C. He submits that the order passed by the learned Judicial Magistrate allowing the production of the document Ex. 45, subject to the proof thereof , was an interlocutory order and as such, in view of the provisions of Section 397(2) Cr. P.C., the learned Additional Sessions Judge was not right in setting aside the order of the learned Judicial Magistrate allowing the production and the proof of the document Ex. 45. He next contends that the provisions of Section 107 of the Gold (Control) Act, 1968, are not applicable to the present case and the proof of the document Ex. 45 could not be disallowed on the ground that it contravened the provisions of the said Section 107.
6. The learned Counsel for the petitioners in support of his contention that the order dated 30th August 1984 passed by the learned Judicial Magistrate overruling the objection to the production and the proof of the document Ex. 45, being the interlocutory order, relied on the decision of the Supreme Court in Amar Nath and Others v. State of Haryana and Others, . In that case their Lordships of the Supreme Court held that the term "interlocutor order" in Section 397(2) Cr. P.C. has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of a party cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 Cr. P.C. Their Lordships observed that the orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) Cr. P.C But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutor order so as to be outside the purview of the revisional jurisdiction of the High Court.
7. The next decision relied on by the learned Counsel for the petitioners is Madhu Limaye v. State of MAHARASHTRA, . The provisions of Section 397(2) Cr. P. C. and Section 482 Cr. P. C. have been considered by the Supreme Court in this case. At pages 50 and 51 of the report their Lordships of the Supreme Court stated the law thus :-
"As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than no, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397 [of the Code of Criminal Procedure, 1973]. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in relation to any interlocutory order, on the other, the power has been conferred in almost the most the same terms as it was in the 1898 Code [that is, the Code of Criminal Procedure, 1898]. On a plain reading of Section 482 [of the Code of Criminal Procedure, 1973], however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, `shall be deemed to limit or affect the inherent powers of the High Court'. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub- section (2) of Section 397 operates only in exercise of the revisional power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such case would be few and far between. The High Court must exercise the inherent power very sparingly. On such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."
[Square Bracketed portions supplied.] At pages 52 and 53 of the report their Lordships referred to the decision in S. Kuppuswami Rao v. The King, 1947 F. C. R. 180, and observed thus :-
"In S. Kuppuswami Rao v. The King Kania C.J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 (of F. C. R.) : (at p. 3 of AIR). Lord Esher M.R. said in Salaman v. Warner, (1891) 1 Q.B. 734, `If their decision, whichever way it is given, will, if it stand, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory'. To the same effect are the observations quoted from the judgments of Fry. L.J. and Lopes L.J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time there was no bar like S. 397(2) [of the Code of Criminal Procedure, 1973] was not a `final order' within the meaning of S. 205(1) of the Government of India Act. 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In out opinion, if this strict test were to be applied in interpreting the words `interlocutory order' occurring in S. 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so, it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by S. 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or propriety of an order or the legality of any proceeding of an inferior Criminal Court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioner v. William Adamson, (1876-77) 2 A.C. 743, and R.M.D. Chamarbaugwalla v. The Union of India, , that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression `interlocutory order' as invariably being converse of the words `final order'. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order - pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposed of article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinks of orders would be merely purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion, it must be taken to be an order of the type falling in the middle course."
[Squared bracketed portion supplied]
8. In the present case the order passed by the learned Judicial magistrate, against which revision was preferred to the Sessions, Court, is an order overruling the objection to the production and proof of a particular document. A revision was preferred against that order while the proceedings were pending before the Trial Court. It is to be seen whether the impugned order is an "interlocutory order" within the meaning of that term used in Section 397(2) Cr.P.C. The misreception of evidence overruling the objection raised by the opposite party, in my opinion, cannot form the basis of revision under Section 397(1) Cr. P.C. and the revisional court, in view of the provisions of Section 397(2) Cr. P.C. cannot interfere with the said order. By allowing a particular document on record the rights of the parties are not finally decided and no serious prejudice can be caused to the opposite part. the evidence which has been incorrectly admitted on record, if found by the appellate or revisional court to have been wrongly admitted, that much evidence can be discarded and the lis can be decided on the basis of the other evidence on record. If the parties are allowed to challenge such interlocutory orders in revision and the trial of the case is stayed pending the decision of the revision, it is bound to protract the litigation and the purpose for which the provisions of Section 397(2) Cr. P. C are enacted is likely to be defeated. In this connection, I may refer to the decision of the Calcutta High Court in Indra Nath guha v. State of West Bengal, 83 C.W.N. 248. In that statements of dead persons, though it did not relate to the cause of death, was wrongly admitted into evidence and the misreception of such evidence was sought to be corrected in. the revision. Their Lordships of the Calcutta High Court held that in view of the provisions of sub-section (2) of Section 397 Cr. P.C. the revision against such order was not tenable. At pages 261 and 262 of the report their Lordships considered the provisions of Section 397 Cr. P.C. and observed thus :-
"Section 435 and 439 of the Criminal Procedure Code of 1898 were the Section which dealt with (a) powers of higher courts to call for records of inferior Courts and (b) the High Court's powers of revision. In the Code of 1973 the provisions of these Section have been incorporated with certain modifications in Section 397 and 401. The supreme Court in Amar Chand Agurfwala v. Santi Bose, pronounced upon the circumstances in which the High Court's power of revision could be exercised under Section 439 of the Code of 1898. The Supreme Court said :
"The jurisdiction of the Court is to be exercised normally under Section 439, Criminal Procedure Code, only in exceptional cases. when there is glaring defect in the procedure or there is a similar error of point of law and consequently there has been a flagrant miscarriage of justice'.
"It does not seem to us that the new sections in the 1973 Code have made any changes in regard to the broad principles of invocation of the High Court's revisional powers. these powers can be exercised in exceptional cases only to correct a glaring defect in the procedure or a manifest error of law resulting in a flagrant miscarriage of justice."
"We have already referred to the provisions of Section 167 of the Evidence Act. The Judicial Committee considered this section in Abdul Rahim v. Emperor . At page 85 Lord Macmillan says :
"The first question submitted relates to the effect of the misreception of evidence. It has been found by the High Court that in the present case material evidence was improperly admitted. What are the powers and what is the duty of the High |Court in such circumstances ? It was contended for the appellant that the evidence improperly admitted might have so seriously prejudiced the mind of the jury as to have brought about a failure of justice and he was entitled on a new trial to have the verdict of a jury on proper evidence. to this submission Section 167, Evidence Act.........affords a complete and conclusive answer. The improper admission of evidence is thereby expressly declared not to be a ground of itself for a new trial. The Appellate Court must apply its own mind to the evidence and after discarding what has been improperly admitted decide whether what is left is sufficient to justify the verdict......But the Appellate Court if satisfied that there is sufficient admissible evidence to justify the verdict in plainly entitled to uphold. If the misreception of evidence is an irregularity within the meaning of Section 537. Criminal P.C. (1898), on which their Lordships find it unnecessary to pronounce an opinion it plainly has not occasioned a failure of justice where, as here, the Appellate Court obeying the injunction contained in Section 167, Evidence Act, has found that there is sufficient admissible evidence to justify the verdict....."
"We have quoted the above observation of the Privy Council to emphasise that the High Court's revisional powers can be exercised in exceptional cases where there has been flagrant miscarriage of justice. Misreception of evidence, if any, does not necessarily involve failure of justice and therefore the High Court should be reluctant to use its powers under Section 397 and Section 401 of the Criminal Procedure Code of 1973 on this ground when the trial is still proceeding."
I am in respectful agreement with the statement of law on the point made by their lordships of the Calcutta High Court. In the present case the order of the learned Judicial Magistrate overruling the objection of the respondent No. 1 and allowing the document Ex. 45 to be produced on record subject to the proof according to law is patently an interlocutory order within the meaning of Section 397(2) Cr. P.C. and, therefore, the learned Additional Sessions Judge was clearly in error in interfering with the said order disregarding the mandate of the provisions of sub-section (2) of Section 397 Cr. P.C. and as such the order of the learned Additional Sessions Judge is liable to be set aside.
9. Al I have held that the order dated 30th August, 1984 passed by the learned Judicial Magistrate allowing the document Ex. 45 to be produced on record and proved according to law is an interlocutory order and it could not have been set aside by the learned Addl. Sessions judge in revision under Section 397, Cr. P.C. the second sub- mission of the learned Counsel for the petitioners that Section 107 of the Gold (Control) Act, 1968, is not applicable to the production and proof of the document Ex. 45 is not necessary to be decided for the decision of the present revision. However, as both the learned Counsels have addressed me on the point, I would like to deal with those arguments. According to the learned Counsel for the respondent No. 1 the sale of gold by auction was by the Reserve Bank of India and the respondent No. 1 purchased gold in the said auction. He points out that the provisions of the Gold (Control) Act do not apply to the gold belonging to or in possession of the Government or the Reserve Bank, in view of the provisions of Section 3 of the said Act. He submits that the tenders received by the Reserve Bank of India from the various traders for purchase of the gold in the auction are not the statements or the declarations made within the provisions of the Gold (Control) Act, and, therefore, there is no restriction either on the officers of the Reserve Bank or on the officers of the Central Excise to disclose the information regarding the sale of gold by the Reserve bank to the traders who submitted the tenders for purchase of gold in the auction. Section 3 of the Gold (Control) Act reads thus :
"3. Nothing in this Act shall apply to, or in relation to,--
(a) any gold belonging to, or in the possession, custody or control of, Government or the Reserve Bank of India,
(b) any melting, assaying, refining, alloying or extracting of gold done by Government in any refinery owned or occupied by it, for the purpose of making or manufacturing primary gold for its own use or for the use of the Reserve Bank of India."
The sale of gold by public auction by the reserve Bank was not under any of the provisions of the Gold (Control) Act and there is no provision in the said Act controlling or in any way regulating the sale of the gold by the Reserve bank. On the contrary, Section 3 clearly provides that the provisions of the said Act do not apply to the gold belonging to or in possession of the Reserve Bank. Therefore, the tenders received by the Reserve Bank form various traders for the purchase of the gold in auction are not the statements, declarations or information within the provisions of Section 107 of the said Act. Section 107 of the Gold (Control) Act reads thus :--
"107. (1) All particulars contained in any return or declaration made or accounts, registers or other documents produced in accordance with this Act shall save as otherwise provided in sub-section (3), be treated as confidential, and not withstanding anything contained in the Indian Evidence Act 1872, no court shall be entitled to require the Administrator or any person authorised by the Administrator under this Act or any officer or other employee of Government to produce before it any such return, declaration, accounts, registers or other documents or any part thereof or to give evidence before it in respect thereof .
(2) The Administrator or any person exercising any powers or performing any functions under this Act shall not divulge--
(i) any information contained in any return on declaration made to, or any account, register or other document produced before, or inspected by him, or
(ii) any other fact or information which comes to his knowledge by virtue of his office or in the course of his duty.
(3) The Administrator or any gazetted officer authorised by him in this behalf may request any officer of Government or the Reserve Bank of India to furnish any information relating to any particulars contained in any return or declaration made to, or any accounts, registers or other documents produced before or inspected by such officer under the provisions of any law if, in the opinion of the Administrator or the gazetted officer aforesaid, such information is necessary for the implementation of any provisions of this Act; and when such request is made, the officer of Government or Reserve Bank of India, as the case may be, shall comply with such request notwithstanding the provisions of any such law forbidding the furnishing of such information.
(4) Nothing in this section shall apply to, and in relation to the disclosure of any information referred to in sub-section (1) or sub- section (2)--
(a) for the purposes of any prosecution for any offence against this Act, or
(b) to any officer of Government where it is necessary to make such disclosure to such officer for the purposes of this Act or of any other law."
The document Ex. 45 along with the list attached thereto was addressed by the Assistant Commissioner of Central Excise, Pune, to the Superintendent of Octroi of the 1st petitioner Corporation. There is nothing on record to show that the Assistant Commissioner of Central Excise, Pune, who addressed the document Ex. 45 to the Superintendent of Octroi of the 1st petitioner Corporation is an Administrator appointed under Section 4 of the Gold (Control) Act. There is nothing on record as it stands today to show that the Assistant Commissioner of Central Excise, Pune, who addressed the document Ex. 45 to the Superintendent of Octroi of the 1st petitioner Corporation, was in any way authorised by the Administrator to exercise any powers under the Gold (Control)Act. There is also nothing on record to indicate that the information give in the list attached to the document Ex. 45 was culled form the statements and the declarations made by the various traders to the Administrator or any other officer authorised by him under the provisions traders to the Administrator or any other officer authorised by him under the provisions of the Gold (Control) Act. I asked the learned Counsel for the respondent No. 1 to satisfy whether the Assistant Commissioner of central Excise, Pune who wrote the document Ex. 45 to the Superintendent of Octroi of the 1st petitioner Corporation, was appointed as Administrator under Section 4 of the Gold (Control) Act or was in any way authorised by the Administrator to act under the said Act. The learned Counsel, from the material on record, could not satisfy me that the Assistant Commissioner of Central Excise the powers under that Act. Thus there is nothing on record to indicate that the information contained in the list attached to the document Ex. 45 was supplied on the basis of the statements and declaration made by the respondent No. 1 and various other traders who purchased gold in the auction held by the Reserve Bank of India, to the authorities under the Gold (Control) Act as required by the Reserve Bank of India, to the authorities under the Gold (Control) Act as required by the provisions of that Act. Consequently, I find that the provisions of Section 107 of the Gold (Control) Act are not attracted and on the basis of the said provision the petitioners could not have been prevented from producing and proving the document Ex. 45.
10. In the result, the petition is allowed. The order of the learned Additional Sessions Judge dated 11th March, 1985 is set aside and the judgment and order of the learned Judicial Magistrate dated 30th August, 1984 is restored> Interim stay is vacated. The writ to issue immediately.