RATILAL BHANJI MITHANI v. THE STATE OF MAHARASHTRA & ORS.
Citation: [1979] 1 S.C.R. 993; 1978 INSC 191
Court: Supreme Court of India
Bench: R.S. SARKARIA , O. CHINNAPPA REDDY, A.P. SEN
Judgment date:
Case summary
1978 INSC 191. Supreme Court of India judgment dated 1978-09-28. RATILAL BHANJI MITHANI v. THE STATE OF MAHARASHTRA & ORS. Read the judgment and case...
Judgment text
994 SUPREME COURT REPORTS [1979] 1 s. c. R. RATILAL BHANJI MITHANI v. TIIB STATE OF MAHARASHTRA & ORS. September 28, 1978 [R. S. SARKARIA, 0. CHINNAPPA REDDY AND A. P. SEN, JJ. ] Code of Crinlinal Procedure 1898, (5 of 1898)-Charge framed-Whether Magistrate has power to cancel the charge and discharge the accured. • 'Di. rcharge' find 'Acquittal'-Distinct concepts applicable to different stages of proceedings. The· appellant and six others were charged with the offence of entering into criminal conspiracy, with intent to defraud the Government of the duty payable on various contraband goods, etc. and thereby committing offences under s. 120- B I. P. C. read with s. 167(81) of the Sea Customs Act 1878 and s. 5 of the Import and Exports Act 1947. The prosecution alleged that as a result of the criminal conspiracy t\·venty-four consignments of goods ca.
me from abroad and were received in Bombay and it is the case of the prosecution that it has in its possession 10 verladescheins (called as 'mate sheets' or recei{lts) which give the description of the contraband goods. OLJt of these 10 verladescheins, 2 relate to consignments of two firms for which the appellant held powers-of-Attorney, The trial Magistrate held that 10 out of the 20 Verladescheins were inadmissible either under the Evidence Act or under the Commercial Documents Evidence Act 1939 and that 9 out of the 10 Ver:Jedescheins were admissible under s. I 0 of the Evidence Act. He also excluded some other letters and correspondence on the ground that they could not be said to have been written in furtherance of the conspiracy. On the basis of the evidence recorded, the Magistrate framed charges against the appellant and the co-accused. The prosecution as well as the appellant filed revision applk:ations in the High Court.
A single Judge of the High Court held that the Magistrate wUl have to consider afresh whether the documents, which he had admitted under s. 32 or s. 10 of the Evidence Act were admissible or not and also consider whether it was necessary to frame additional charges. After this order, the Additional Chief Prcside. ncy Magistrate discharged the accused on the grounds that since no overt act was proved against the appellant and certain other accused no conspiracy can be inferred as against them . • A Division Bench of the High Court allowed the revision petition filed by the prosecution and held that the Magistrate had no legal power to discharge the accused after framing the charge. In the appeal to this Court it was contended on behalf of the appellant that in passing the impugned order, the Magistrate was simply acting in consonance with the observations and implied directions contained in the order of the High Court. Dismissing the appeal, HEW·: 1.
From the scheme of the provisi~1s contained in ss. 252 tu 257 given in Chapter XXI of the Code of Criminal Procedure 1898, it is clear that in a warrant case instituted otherwise on a police report, 'discharge' or 'acquittal' • of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of 'discharge' and 'acquitta:. t' are c~Jso different. An order of di&ebargc in a warraut case instituted on complaint, l'an be made only after the process has been issued and before the charge is framed. A discharge without considering the evidence taken is illegal. If a prin1a f(;Cie case is made out the Magistrate must proceed un -. Prosecution closes its case. Accused statement recorded. Adjourned for arguments for charge to 13. 12. 1962. " The Magistrate then heard the arguments and thereafter on Decem- ... ber 21, 1962, on the basis of the evidence already recorded, framed charges against Mithani and his 6 co-accused.
Under the first charge, t Mithani (accused No. 2) was jointly charged with Accused 1, 3, 4;-5, • 6 and 7 with criminal conspiracy between September 1957 and February 1, 1960 or thereabout, with intent to defraud the Government of India of the duty payable on various contraband goods and to evade # the prohibition and restrictions imposed relating thereto for acquiring possession of large quantity of contraband goods etc. It was specifically recited in the charge that accused No. 2 was, at the relevant time, RATILAL v. MAHARASHTRA (Sarkaria, J. ) 997 j)artner of Shanti Lal and Chagan Lal & Co. , Bombay, and also consti-tuted Attorney of Suresh Trading Co. , Dee Deepak & Co. , New Delhi, and also of Eastern Trading Corporation, Bl'mbay and had an interest • in all these three concerns. On February 19, 1963, the State filed Criminal Revisions Application No.
107 of 1963 in the High Court against the orders dated August 24, 1962 and December 6, 1962 of the Magistrate, whereby the latter had refused to admit 11 Verladescheins out of 20 in evi- • As regards the question whether these Ver! adescheins were admissible under Section 10, the learned Judge held that ''before considerag this question, it would be wrong to look at these very documents the admissibility of which is in dispute", and that "such a conclusion can f be reached from evidence, documentary, oral or circumstantial, but apart fro,n the disputed document itself. It does not appear from .. the order of the learned Magistrate that there was any independent material from which he had formed the opinion that two or more persons had conspired together to commit an offence. " The learned Ju~ge significantly added : "If there is any such material or if tlte prosecution leads further evidence and if such material is brought on record, the learned.
Magistrate will, at the appropriate stage, be entid. -ed to take this material into consideration and decide whether these documents can be admitted under Section 10 of the Evidence Act. " The learned Judge pointed out that this could include an attempt to take out the goods. In this connection he observed : "If apart from the. question of the period during which the conspiracy extended they are not admissible in evidence, because other conditions required t9 be satisfied under Section 10 are not satisfied, then it is another matter. But I cannot accept his conclusion that they would not be so admissible, because they do not fall within the period of conspiracy. " The learned Judge concluded : "I have no doubt that the learned Magistrate will have to consider afresh whether the documents, which he has admitted under Section 32 or Section 10 are admissible or not.
In any case, the order which he has made admitting certain documents under Section 10 or Section 32 was an interlocutory order and the learned > . , Magistrate will be entitled to reconsider the position in the light of the observations in this judgment......... The . learned Magistrate in the light of the view which I have taken, will also consider whether it is necessary to frame additional charges and to pass an appropriate • order. " - . u The Revision Application No. 574 of 1964, filed by Mithani, was rejected by a separate order, dated August 21, 1964 on the ground that in the view which the learned Judge had taken in Criminal Revision llATILAL v. MAHARASHTRA (Sarkaria, /.
) 999 No, i,07 of 1963, it was not necessary to admit this Revision Application, · It was, however, observed that the Magistrate will take the observations in that judgment into consideration and consider "whether • the interlocutory order, against which the present Revision Application is filed, needs to be reviewed. " ' The prosecution filed Special Leave Petitions (965 and 966 of 1965) in this Com:! against the judgment, dated August 19/20, 1964 of Mr. Justice Gokhale, and against the High Court's order refusing .. ,~· to grant certificate of fitness. This Court on January 27, 1966, summarily· dismissed both these petitions. The prosecution then made an application to the Magistrate to take some photostat copies of certain documents .. The Magistrate granted this application. Accused I challenged this order of the Magistrate in the High Court. By its order, dated October 4, 1966, the High Court restricted the time to prosecution by three months for calling the Foreign Witnesses.
After expiration of this period, the prosecution on January 11, 1967 filed an application in the High Court for cancellation of Mithani's bail on the ground that he was tampering with the witnesses and abusing the liberty granted to him. The High Court cancelled Mithani's bail and Mithani surrendered and was committed to jail custo'dy on January 13, 1967. Mithani came by special leave against the order cancelling his bail, to this Court By order dated May 4, 1967, ibis Court dismissed Mithani's appeal, but restricted the time for examining the German Witnesses cited by the prosecution upto June 26, 1967. Since there was delay in procuring the attendance of German Witnesses within the time granted, Mithani was released on bail by an order dated July 26, 1967 of this Court. Thereafter, the prosecution applied to the Magistrate to proceed with the case without the Foreign Witnesses.
' On July 10, 1967, the prosecution applied to the Magistrate for issue of commission for examination of the German Witnesses at Ham-burg or Berlin o'r London. The Magistrate rejected this application by his order dated August 8, 1967. Against the Magistrate's order, the prosecution, ag. iin, went in revision to the High Court, which rejected the same by an order in September, 1967. Another revision petition filed in the High Court by the prosecution was dismissed by the High Court (V. S. Desai & Wagle JJ) by an order dated Aμgust 9, • 1968. On December 2, 196S, the! prosecution made an application for examining a number of witnesses to establish the preliminary facts for admission of the Verladasheins and other documents under Sections 32(2) (3) and 10 of the Evidence Acf and under the Commercial Documents Act. The Ma Nos 2 to 9 no charges can be framed against any of the accused and therefore charges Nos. 2 to 9 will stand deleted. Accused Nos.
2, 3 and 7 are concerned only in some of the charges Nos. 2 to 9. They are not concerned in charges Nos. 10, 11, 12 and 13. 1 Therefore as no overt act is held proved against them no conspiracy can be inferred as against them and therefore charge No. 1 of conspiracy as against them must go. Therefore with regard to accused Nos. 2, 3 and 7 I hold that no case is made out against them and I therefore hold them not guilty u/s 167 r. w. 81 of the Customs Act for con-travention of Jmport & Export Control Act 1947 and 1955 and for conspiracy and order them to be discharged. " Against the Magistrate's order, dated February 26, 1969, the prosecution filed Criminal Revision Application No. 565 of 1969 in the High Court. By its judgmen~ dated December 16/17, 1969, a Bench of the High Court (consisting of Vaidya and Rege JJ. ) allowed Criminal Revision 565 of 1969 mainly on the ground that the MlMlistrate after framing the charge, had no legal power to discharge the accused persons.
It was observed that "the entire complexion of the cases chan- ,>·· ged on account of the retirement of the Magistrate. The new Magistrate who will hear the matter, will have to find out whether he must alter or vary the charge and for that purpose to issue a fresh process to the two living deleted accused, after taking into consideration the • evidence already recorded by the former Magistrate ...... and such other evidence he may have to record hereafter. " The High Court concluded : "We are setting aside the order of discharge on the ground that it is open to the new Magistrate to frame a charge against the deleted accused on considering the material; and also on the ground that the former Magistrate had no power to discharge the accused after framing the charge. " The High Court further observed thaf, "what-ever submissions the accused want to make with regard to not framing the charge are also open to them.
" At that stage, they did not want and could l'IOt consider the evidence before the Magistrate. In' the RATILAL v. MAHARASHTRA (Sarkaria, !. ) 100 I result, altei order dated Februaiy 26, 1969 of the Magistrate was set aside aad the case was restored to the file of th~ Magistrate, except with rel! llrd to the dec,£ased accused No. 7 for being dealt with as early as po11sible, in! accordance with law and in the light of the obser- • vations made by the High Court. Against this order, dated January 21, 1976, of the High Court ' setting aside the order dated February 26, 1969 of the Magistrate discharging the accused, the accused 2 (Mithani) has come in appeal before m. The points canvassed by Shri I. N. Shroff, learned counsel for the appella11t, may be summarised as under : {i) In passing the thep impugned order, the Magistrate was simply acting in consonance with the observation and implied directions contained in the judgment, dated August 19,'. 20, 1964, of Mr. Justice H. R.
Gokh;lle in Cr. R. A. No. 107 of 1964. On the contrary, the Bench of the High Court (consisting of Vaidya and Rege JJ) has failed in its duty to uphold the aforesaid judgment ot. Mr. Justice Gokhale ince the proceedings, ended with that order. The other contentions of the appellant, have been stated only to be reject. iid. For all the reasons aforesaid, we have no hesitation in uphQl. ding the High Court's order under appeal, and in dismissing the appeal. • Since the case is very old, the Magistrate shall proceed with the B case with utmost despatch, if feasible, by holding day to day ltearings within six months from today. N. V. K. Appeal dismissed. ' . r • •
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