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Judgment
Arunachalam, J.—Both these petitions, filed u/s 482, Code of Criminal Procedure to call for the records in the pending prosecutions and quash these proceedings, as not maintainable and an abuse of process of Court, are disposed of together, since the Petitioners and the Respondent are the same, apart from the questions raised being common.
The Petitioners in Crl. M.P. No. 4405 of 1986 are A-6, A-8 and A-7 respectively in C.C. No. 1450 of 1985 pending on the file of the Additional Chief Metropolitan Magistrate I Economic Offences Egmore, Madras. On a private complaint filed by the Respondent, who is the Deputy Chief Controller of Imports and Exports, Madras-17, the Petitioners are being prosecuted along with 8 others in the aforestated calendar case for the offence punishable under Sections 420, 467, 468 and 471 read with Section 468, I.P.C. and Section 5 of the Imports and Exports
(Control) Act, 1947, as well as u/s 120-B, I.P.C. for having entered into conspiracy to commit the aforestated offences.
Crl. M.P. No. 13058 of 1986, is referable to C.C. No. 11 of 1986, pending on the file of the same Magistrate and the Petitioners have been shown therein as A-14 to A-16. The offences alleged are the same as in the other case, though the total number of the accused are 31.
Facts in C.C. No. 1450 of 1985 (Crl. M.P. No. 4405 of 1986) are as hereunder: The first Petitioner (A-6) is a business man at Bombay.
Petitioners 2 and 3 (A-8 and A-7) are the sons of the first Petitioner and they are also residents of Bombay. A-9, not a Petitioner herein, is a small scale industrialist of Bombay and a close associate of A-6 (first Petitioner) A-10 is a commission agent of Bombay and A-11 was an employee under A-10. A-1 is a firm named M/s. S.D. and Sons Company, situated at Madras. A-1 was registered as Merchant exporter with the Engineering Export Promotion Council, Madras on 3-8-1976. On 12-8-1977 the firm was registered as manufacturer exporter in suppression of the registration dated 3-8-1976. In 1977 there were 7 partners of whom 4 retired from the partnership firm. On 30-6-1979 A-2 and A-3 had joined as partners and within three months thereafter, both of them had purchased the company from the other three partners for Rs. 20,000/-.
Thereafter the other partners ceased to take any active part in the company. A-2 is a resident of Bombay, while A-3 resides at Madras. A-2 is closely related to A-4 and A-5, who are residents of Madras. A-2 came down to Madras and was working under A-4 and A-5. A-5 is the brother-in-law of A-4. A-4 is stated to be involved in smuggling activities.
An application form, dated 24-9-1980 along with enclosures signed by A-2 on behalf of A-1, was presented at the office of the Joint Chief Controller of Imports and Exports, Madras, requesting issue of licence to the value of Rs. 5,88,150/-. The application was processed in the office of the Joint Chief Controller of Imports and Exports, Madras, and licence No. P/L/2854103 dated 25-10-1980 for Rs. 5,58,743/- was issued, subject to certain conditions stipulated in the licence. The important conditions were that the imprest licence holder should export as stipulated in the export order dated 31-7-1980 of Trademore Establishment, Dubai for a FOB value of Rs. 11,17,485/-, within a period of 6 months from the date of importation of the first consignment against the imprest licences. The exported product should contain stainless steel not less than 80% by weight. The goods imported shall be used in the manufacture of the item to be exported. Though the firm was asked to execute a bank guarantee the firm did not produce any such guarantee. It is the case of the prosecution that the Controller of Imports and Exports had believed the export order dated 31-7-1980 and other documents as genuine, while he issued the licence.
Similarly another application dated 17-11-1980 with enclosures for a second licence was received in the Office of the Joint Chief Controller of Imports and Exports, Madras, on behalf of S.D. and Sons Company to the value of Rs. 4,51,450/-. As in the earlier case, the application had been signed by A-2. After process licence No. P/L/2854564 dated 28-11-1980 for Rs. 4,51,450/- was issued. This licence also was subject to the same conditions as the earlier licence.
The two licences aforementioned were taken to Bombay by A-4 and handed over to the first Petitioner (A-6), Roshanlal Agarwal. Thereafter it is the prosecution case, that the Petitioners along with A-9 to A-11 had arranged for the import of the materials through Bombay Port. The L.A. holder in respect of the licence No. 2854103, as per the bill of entry was M/s. S.D. and Sons Company, Madras-81, while the L.A. holder in respect of licence No. 2854564 as per the bill of entry was M/s. Kamal Industries, Bombay. The clearing agent was Orient Transport Company in respect of both licences. The transport Company had raised their bills on M/s. S.D. and Sons Company, Madras, and M/s. Kamal Industries, Bombay. The payments to M/s. Orient Transport Company had been made in cash. The clearance of the goods was arranged at the request of the first Petitioner and A-4 and their associates, Petitioners 2 and 3 and A-9, named Lalinanda. The declarations in respect of licence No. 2854564, which were attached to the bills of entry were signed by Vilas R. Chavan (A-11). The declaration in respect of the other licence had been scribbled by somebody. The octroi in respect of these imported materials had been paid by Orient Transport Company, on behalf of the importers and the goods cleared had been transported to the godown of the first Petitioner (A-6) in Sakinaka, Chembur, Bombay. The materials were not transported out of Bombay.
It is also the prosecution case that in respect of licence No. 2854564, L.C. No. 4/15 of the Bank of Baroda, Nariman Point Branch, Bombay, had been opened on behalf of A-10 at the respect of National Co-operative Bank. The records indicate, that the National Co-opertative Bank and A-10 were introduced to the Bank by the third Petitioner (A-7). Though the L.C. had been opened in the name of A-10, the entire transactions, had been carried out by Petitioners 1 and 3 (A-6 and A-7).
In respect of licence No. 2854103 L.C. had been opened, by Bank of Cochin, Bombay branch, at the request of A-11 (Vilas R. Chavan) as proprietor of M/s. Kamal Industries, Bombay. The Bank of Cochin, Banglore Branch, had issued a bank guarantee in respect of 180% of the duty amount and the third Petitioner (A-7) had executed a counter guarantee to the bank in this regard. Hereagain, the prosecution would have it that the transactions relating to this L.C. were carried out by the first Petitioner (A-6) along with the other Petitioners (A-7 and A-8), who are his sons.
It is under these circumstances that the prosecution had placed before the trial Court, the facts, which revealed that during 1980-81 the accused along with the approver N.R. Thangaraj had entered into a criminal conspiracy to cheat the concerned Controller in the office of the Joint Chief Controller of Imports and Exports, Madras by producing forged documents and inducing them by cheating to issue the two licences above mentioned and to misutilise the goods imported under the said licences. In pursuance of the said criminal conspiracy, A-1 to A-3 had misutilised the goods obtained under the said two licences and A-2 to A-11 had abetted the other accused in the misutilisation of the goods worth about Rs.
9,74,695/-.
Facts in C.C. No. 11 of 1986 (Crl. M.P. No. 13058/86. Petitioners 2 and 6 (A-15 and A-16) are the sons of the first Petitioner (A-14). A-1 N.S. Vasan was the proprietor of M/s. Homtha Metal Works, Paramakudi (A-21). The firm was registered as a S.S.I. unit. The firm applied on 28-5-1979 to the Engineering Export Promotion Council, Madras, to register the unit as a manufacturer exporter in stainless steel utensils and submitted the necessary documents. Along with the application, the firm had submitted xerox copy of the foreign firm order dated 16-5-1979 purported to have been issued by M/s. S.S. Sports Centre (P) Ltd., Saphia Road Singapore, for supply of 5562.5 Kgs. of wedding sets and basins etc, for a value of Rs. 3,06,200/-. This foreign firm order is stated to have forged by A-2. The firm submitted an application on 9-8-1979, with the signature of A-1, to the Joint Chief Controller of Imports and Exports, Madras, for issue of an imprest licence. Along with the application, a foriegn firm order dated 20-7-1979 purported to have been issued by M/s. Yusuffathalla Trading Est., P.O. Box 1315, Dubai for supply of stainless steel vessels weighing 19500 Kgs. for a value of Rs. 10,05,000/- was submitted. An imprest licence P/L 2875545 dated 31-8-1979, was issued for a value of Rs. 5,02,500/- for import of stainless steel with a condition that the firm shall export stainless steel vessels for the FOB value of Rs. 10,05,000/- to M/s. Yusuffathalla Trading Est., Dubai within a period of six months, from the date of importation of the first consignment, and the goods imported against licence shall be used exclusively in the execution of export order and no portion thereof shall be utilised or disposed of otherwise. A-1 opened an L.C. in the Punjab National Bank, Bangalore. The import bills were received and retired by M/s.
Balakrishnan Mudali and Sons, who cleared the goods. The consignment was delivered to A-1 by the clearing agent, but the materials never reached the factory premises of M/s. Homtha Metal Works, Paramakkudi and they were sold in open market at Madras. Similarly on application made by A-2 before the Assistant Director of Industries, Shivaganga, the firm M/s. Raja Iron Works, Paramakkudi (A-22) was registered as a S.S.I. unit. A-1 on behalf of the firm (A-2) submitted an application for the issue of an import licence and a licence was issued bearing No. P/L/2935530 for Rs. 9 lakhs with the condition that A-21 and A-22 should jointly export fountain pens nibs made of stainless steel as stipulated in the export order dated 15-7-1980 of M/s. Bae Steels, England for a value of Rs. 18 Lakhs within a period of six months from the date of importation of the first consignment. As in the earlier cases, the consignment which received was acknowledged by A-1, but the materials imported never reached the factories and they were disposed of at Madras in the open market by A-12 and A-13.
A-1 also in a similar pattern, obtained a licence P/L/293450 dated 13-1-1981 for Rs. 6,09,960/- and a duty exemption entitlement certificate bearing No. 001214 to A-21, with a condition that A-21 shall export as stipulated in the export order dated 10-10-1980 by M/s. S.S. Sports Centre (P)Ltd., Singapore, 28,700 Kgs. of S.S utensils for a F.O.B. value of Rs. 14,27,000/- within a period of six months from the date of import of the first consignment. Bills of entry were filed by Kiran P. Dalal, the clearing agent of Bombay at the Customs House, Bombay and the goods cleared were delivered to A-13 Roopchand and the materials did not reach Paramakkudi, but were disposed of in the open market at Madras by A-12 and A-13. In the same pattern A-3, A-6 and A-7 had obtained import licences. Though the aforestated instances, do not involve the Petitioners, these facts have been stated to show the modus operandi of all the accused, who are stated to be involved in a conspiracy.
A-8 applied on behalf of M/s. Chitrakala Industries (A-28), to register as a member of Engineering Export Promotion Council, Madras. The firm submitted a foreign firm order dated 14-1-1980 purported to have been issued by M/s. S.S. Sports Centre (P) Ltd., G31 Peace Centre, No. 1, Sophia Road, Singapore, for supply of stainless steel fancy articles for a F.O.B. value of Rs. 6,58,950/-. After induction of the firm as a manufacturer exporter, A-8 submitted an application in the prescribed proforma to the Joint Chief Controller of Imports and Exports, Madras, with a xerox copy of the foreign firm order dated 14-1-1980 purported to have been issued by M/s. S.S. Sports Centre (P) Ltd., Singapore. On the basis of this application an imprest licence bearing No. P/L/2879080 was issued to M/s. Chitrakala Industries (A-28) for a value of Rs. 3,29,475/- for the import of stainless steel with a condition that this firm should export as stipulated in the export order dated 14-1-1980 of M/s.
S.S. Sports Centre (P) Ltd. Singapore, for a value of Rs. 6,58,950/- within a period of six months from the date of importation of the first consignment. An indent dated 23-5-1981 was placed on M/s. Samissa Company Limited, Seoul through M/s. Modi Brothers, Bombay an indenting agent, by the third Petitioner herein and Lali Nanda (A-17), who represented to the indenting agent, on behalf of M/s. Kamal Indutries, Bombay. An application with the signature of Vilas R. Chavan (A-18) was submitted to the Bank of Cochin Limited, Bombay, for opening L.C. in favour of M/s. Samissa Company Limited, Seoul. The documents were retired by M/s. Kamal Industries, Bombay. Bills of entry were filed by Kiran P. Dalal for clearance of 16.994 mts. stainless steel sheets for a value of Rs. 3,19,032/-. The import documents were handed over to the clearing agent by the second Petitioner and at the instance of all the Petitioners the materials covered under this licence were transported to the godown of the first Petitioner (A-14) in Sakinaka and Kanwar. The materials were sold in open market and never reached the factory premises.
The factory had no capacity to manufacture more than 3 mts. and cannot execute such export order. The foreign firm, S.S. Sport Centre (P) Ltd., Singapore, was not dealing in S.S. sheets. In a similiar pattern A-8 to A-11 obtained further licences and the pattern of operation was the same.
N.R. Thangaraj was taken as an approver and it is the prosecution case that A-1 to A-20 and the approver submitted false documents including foreign firm order and obtained the E.E.P.C. registration certificate and also obtained the licences in the names of the accused firm A-21 to A-31 and disposed of the imported materials covered under these licences in pursuance of a criminal conspiracy, knowing fully well that the documents used were forged. The offences alleged are punishable u/s 120-B read with Sections 420, 467, 468, 471 and Section 5 of the Imports and Exports (Control) Act, 1947, apart from the specific offences committed by A-1 to A-11 under Sections 420, 471 and Section 5 of the Imports and Exports (Control) Act, 1947.
Mr. G. Subramaniam, learned senior counsel appearing on behalf of the Petitioners in each one of these petitions urged the following three contentions:
(1) The Deputy Chief Controller of Imports and Exports was not empowered to file of caused filing to be made by others in his behalf, any complaint in respect of the offences u/s 120-B read with Sections 420, 467, 471 read with Section 468 I.P.C. and cognizance could only be taken of the said offence on a final report submitted by the investigating officer to the court having jurisdiction. He also submitted, as a corollary that for an offence u/s 5 of the Imports and Exports Control Act, the learned Magistrate was not empowered to take cognizance of the complaint filed by any person into Court other than the complainant viz., the Deputy Chief Controller of Imports and Exports. Therefore, the filing of the complaint by the Public Prosecutor was in violation of law. Further non-compliance with the provisions of Section 200, Code of Criminal Procedure was fatal.
(2) The trial Court was a Special Court specifically constituted by the Government of Tamilnadu under Notification exclusively for the trial of offence indicated in the Schedule to the Notification. Therefore, the Special Court (Magistrate) had no jurisdiction to entertain a complaint in respect of offences under the Indian Penal Code, much less competent to take cognizance of the offences under the Indian Penal Code or even try anyone of them. In view of this petition, the pending proceedings were liable to be quashed. On this ground of attack, he referred to the provisions of the Essential Commodities Act, the Criminal Law (Amendment) Act and the Prevention of Corruption Act; and
(3) On a reading of the complaint, no offence has been made out against any one of the Petitioners. The Petitioners were not licensees in respect of the instances cited in the complaint and logically they could not be deemed to have violated any of the conditions of the licence. There is no material to indicate an agreement between the Petitioners and the other accused, much less averments to spell out abetment.
Mr. B. Sriramulu, learned Counsel appearing on behalf of the Respondent contended, that there was no infirmity in the presentation of the complaint to the learned Magistrate by the Public Prosecutor. The Respondent being a public servant need not have to be examined u/s 200 Code of Criminal Procedure before the complaint could be taken on file. All the offences with which the Petitioner are stated to be concerned are cognizable inclusive of the offence u/s 5 of the Import and Exports (Control) Act. The investigation was carried out by the C.B.I. and in view of the provisions of Section 6 of the Act aforementioned, the Respondent filed the complaints to facilitate cognizance. The offences under the Indian Penal Code were committed in the course of the same transaction and the object of the conspiracy was to violate the provisions of the Imports and Exports (Control) Act. He submitted that the operation of the provisions of the Code of Criminal Procedure, had not been excluded under the Import and Exports (Control) Act and, therefore, the provisions of the Criminal Procedure Code which govern these proceedings would permit prosecutions, to be launched for the offences under the Indian Penal Code. Further since the offences under the Indian Penal Code were committed in the course of the same transaction, Sections 220 and 223 of the Code of Criminal Procedure would permit a joint trial of all the accused for more than one offence. The Courts will have to interpret the provisions in such a way that no injustice is done either to the prosecution or to the accused. The dominant object of the accused was to commit offences under the Imports and Exports (Control) Act, and other offences were committed in the course of the same transaction. He argued that the courts constituted under the Essential Commodities Act, Prevention of Corruption Act and Criminal Law (Amendment) Act, were created under these enactments, but the Special Court constituted for the trial of offences under the Imports and Exports (Control) Act, came into being under the provisions of the Code of Criminal Procedure. In the former set of enactments as a matter of abundant caution, since the Courts were created under the Special Acts, themselves, it was thought fit to make it clear, that other offences also could be tried by these Courts. As far as the Special Court constituted under the provisions of the Criminal Procedure Code is concerned, the court already has the power vested in it, to try offences under the Indian Penal Code and for the purpose of a speedy trial, the said court was constituted and such constitution would not take away the power to try offences under the Penal code already vested in it. He contended that if the arguments of the learned Counsel for the Petitioner were to be accepted, the trial for offences under the Indian Penal Code will have to be in a different court, though the accused and the prosecution witnesses were the same. Then the very object of a speedy trial for the accused involved in offences punishable under the Imports and Exports (Control) Act would stand defeated. On the factual merits, he pointed out several portions of the statements of witnesses examined during investigation by the C.B.I. to show that the Petitioners were the main accused behind the transactions and they had not only financed, but also had taken delivery of the imported goods, which had not left the shores of Bombay. He urged that not only the averments in the complaint, but also the statements of witnesses in the accompanying documents, copies of which had been furnished to the Petitioners by the trial Court, positively indicated their thick involvement in the conspiracy to commit the offence alleged. He specifically pointed out, that M/s. Kamal Industries was a creation of the Petitioners, using persons with no means and a servant of their friend to pose as though he was concerned with M/s. Kamal Industries. These transactions were carried out by the Petitioners using the benami name of M/s. Kamal Industries. He contended at this stage all that the court was concerned was, to look into the allegations in the complaint and in the documents accompanying it and if they showed commission of offences alleged, the exercise of inherent powers to quash the pending prosecution in favour of the Petitioners will not be available.
I have carefully considered the submission made by either counsel. In the judgment of K.M. Natarajan, J. in M/s. Plating chemicals and 8 Ors. etc., v. Deputy Chief Controller of Imports and Exports 1990 L.W. Cri. 349 it was observed, ""that in view of specific provisions of Section 6 of the Imports and Exports (Control) Act, the court can only take cognizance of the complaints filed by officers, who are authorised in that behalf by the Central Government by General or Special order and hence the question of filing charge sheet does not arise"". It was also stated that Section
210 Code of Criminal Procedure was not attracted and the Court, need not have to stay the proceedings awaiting the charge sheet or the final report from the officer, who investigated the case.
P.K. Sethuraman, J. in Crl. M.P. No. 12752 of 1986 by an order dated 19-2-1988 stated that Section 210, Code of Criminal Procedure was not attracted in these cases on he ground that there was no provision for investigation under the Customs Act, 1962, as well as the Imports and Exports (Control) Act, 1947 by any of the officers concerned. Though the report was shown to have been filed by the Collector of Customs and the case was investigated by the Special Police Establishment, in view of the provisions u/s 6 of the Imports and Exports (Control) Act, 1947, cognizance can be taken only on a complaint in writing made by an officer authorised in this behalf by the Central Government by general or special order and the question of filing a charge sheet or filing a report u/s 173(2) Code of Criminal Procedure did not arise. The learned Judge took note of the arguments of the Special Public Prosecutor for C.B.I., that in all these cases only after the investigation was completed and after getting reports, in view of the prohibition u/s 6 of the Act, the complaint was filed by the officer concerned and, as such, the filing of a charge sheet at a later stage by police was not contemplated. Therefore, the argument of the learned Counsel for the Petitioners, that cognizance could be taken of offences alleged, only on a final report submitted by the investigating officer to the court having jurisdiction cannot be acceded to Section 200 of the Code of Criminal Procedure formulates the procedure to be followed by a Magistrate taking cognizance of an offence, on a complaint. The Magistrate shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination should be reduced to writing and should be signed by the complainant and the witnesses, and also by the Magistrate. The proviso to Section 200 Code of Criminal Procedure will be significant it reads that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a court had made the complaint. We are not concerned in this case with Clause (b) of the Proviso. Therefore, the Deputy Chief Controller of Import and Exports, who is a public servant, need not have to be examined by the Magistrate, when the complaint is made in writing arising out of his action in the discharge of his official duties.
Section 6 of the Act permits cognizance of any offence punishable u/s 5 of the Act, only upon a complaint in writing made by an officer authorised in that behalf, by the Central Government by general or special order. Therefore, it is not possible to agree with the learned Counsel for the Petitioner that the provisions of Section 200 Code of Criminal Procedure had been violated while the Magistrate took cognizance of the offences, on the complaint preferred by the Respondent.
Rule 111 of the Criminal Rules of Practice reads as hereunder:
Complaints to be presented in persons or by the pleader: All complaints, application, etc. shall be presented to the Magistrate by a party in person or by his pleader. The complainant shall present along with the complaint as many copies on plain paper of the complaint, as the number of accused persons complained against.
This rule permits the presentation to the Magistrate of the complaint either in person by the complainant or by his pleader. The complaint made in writing of the Respondent has, therefore, been presented validly before the Magistrate. The words used in Section 200 Code of Criminal Procedure. "When the complaint is made in writing" and the words used in Rule 111, Criminal Rules of Practice "shall be presented to the Magistrate" are sufficient to put an end to the submission of the learned Counsel for the Petitioners that the presentation of the complaint made in writing by the Respondent, to facilitate cognizance by the trial Magistrate was not in accordance with law.
On the second contention, the learned Counsel for the Petitioners referred to Section 3(c)(2) of the Code of Criminal Procedure which states that unless the context otherwise required, any reference to the court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area. He then invited my attention to Section 11 of the Code with specific reference to the Proviso that the State Government may, after consultation with the High Court, establish, for any local area, one or more special courts of judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such special court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such special court of Judicial Magistrate has been established. Thereafter Sections 16 and 17 of the Code were referred to. Section 16 reads that in every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State government may, after consultation with the High Court, by notification, specify. The presiding officers of such Courts shall be appointed by the High Court and the jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area. u/s 17 of the Code, the High Court is empowered to appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate or an additional Chief Metropolitan Magistrate and such Magistrate shall exercise powers under the Code or under any other law for the time being in force as the High Court may direct. The learned Counsel for the Petitioners submitted that the language in Section 17 of the Code was different than in Sections 11 and 16, in that under the latter sections, the appointing authority was the state in conferring and excluding jurisdiction of a special court, to try any case to class of cases, for the trial of which such special court had been established. Mr. Subramaniam brought to my notice G.O.Ms. No. 1293 dated 24-5-1982 and G.O.Ms. No. 446 dated 27-2-1984. In the earlier G.O. the recommendation of the High Court for the constitution of one additional Court of the Chief Judicial Magistrate at Madurai (in the cadre of sub judge) and two Additional Metropolitan Courts in the city of Madras (in the cadre of Chief Metropolitan Magistrate) for the speedy trial of economic offences in the State of Tamilnadu was accepted, In accordance with the acceptance of the recommendation, the government sanctioned the creation temporarily of the Additional Chief Metropolitan Magistrate Courts in Madras for a period of one year from the date of appointment or till the need therefor ceased. There was no dispute that these Courts created, continued in view of subsequent extensions. It was pointed out that in G.O.Ms. No. 1293 the establishment of the Special Courts was u/s 16(1) of the Code of Criminal Procedure.
In the second Government Order, there was an amendment to G.O.Ms. No. 1293. This notification was issued in exercise of the powers conferred by the proviso to Sub-section (1) of Section 11 of the Code of Criminal Procedure. The amendment reads that in the earlier notification after the expression "economic offences" the following shall be added, namely: ""covered under the following central Act:
The Central Excise and Salt Act, 1944 (Central Act 1 of 1944).
The Imports and Exports (Control) Act, 1947 (Central Act XVIII of 1947)
The Wealth Tax Act 1957, (Central Act 27 of 1957)
The Income Tax Act, 1961 (Central Act 43 of 1961)
The Customs Act, 1962 (Central Act 52 of 1962)
The Gold Control Act 1968 (Central Act 45 of 1968)
Foreign Exchange Regulation Act, 1972 (Central Act 46 of 1973).
The Companies (Profits) Surtax Act, 1964 (Central Act 7 of 1964)
The Gift Tax Act, 1968 (Central Act of 18 of 1968)
The Export (Quality Control and Inspection) Act, 1969 (Central Act 2 of 1969)
The Companies Act, 1956 (Central Act 1 of 1956)
The Monopolies and Restrictive Trade Practices Act 1969 (Central Act 54 of 1969) The Imports and Exports (Control) Act, 1947 has been included in serial No. 2. The notification also reads that the High Court may issue instructions to the Chief Metropolitan Magistrate, Madras, to distribute economic offences cases pending or filed under various Act to the two Courts constituted under G.O.Ms. No. 1293, invoking the provisions under Sub-section (3) of Section 19 of the Code of Criminal Procedure.
The argument of the learned Counsel was that the economic Offences Court was not a Court u/s 16 of the Code of Criminal Procedure and unless the notification had been, issued u/s 16 of the Code, special court had no jurisdiction to try offences under the Penal Code. In this context he referred to Section 12AA of the Essential Commodities Act which reads that When trying an offence under this Act, a Special Court may also try an offence other than an offence under the Act with which the accused may, under the Code be charged at the same trial; provided that such other offence is under any other law for the time being in force triable in a summary way.
He also pointed out that u/s 7(3) of the Criminal Law (Amendment) Act, 1952, when trying any case a special Judge may also try any offence, other than an offence specified in Section 6, which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.
He then referred to Section 6 of the Criminal Law (Amendment) Act, 1952, by which the State Government may by notification in the Official Gazette, appoint as many special Judges as may be necessary, for such area or areas as may be specified in the notification to try offences under Sections 161, 162, 163, 164, 165 and 165-A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act. This section was referred to, to contend that to try the Penal Code offences by a special Judge, powers were conferred by notification issued u/s 6 of the Act.
According to the learned Counsel, in the absence of such special power conferred on the special Court trying economic offences, the said Court will not have jurisdiction to try offences under the Penal Code. The power must be conferred expressly and was not a matter, which could be inferred.
Both under Sections 11 and 16 of the Code of Criminal Procedure, the establishment of Courts is by the State Government, after consultation with the High Court. The appointment of the presiding officers under both sections is by the High Court, of the Magistrates appointed u/s 16(2) of the Code, the High Court u/s 17 of the Code, in relation to every metropolitan area, appoints Metropolitan Magistrate to be the Chief Metropolitan Magistrate. Similarly, the High Court can appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate and such Magistrate shall have all or any of the powers of the Chief Metropolitan Magistrate under this Code or under any other law for the time being in force, as the High Court may direct. I am unable to find any conspicuous difference in the language, as pointed out by the learned Counsel for the Petitioners. Once the Courts are established, the Presiding Officers are appointed by the High Court and out of these Presiding Officers appointed by the High Court in the metropolitan area, the High Court appoints one of the Metropolitan Magistrate to be the Chief Metropolitan Magistrate or/Additional Chief Metropolitan Magistrate as deemed necessary. Section 17 of the Code does not take in its fold establishment of Courts, but only speaks of appointment of a Chief Metropolitan Magistrate or an Additional Chief Metropolitan Magistrate out of the Metropolitan Magistrate appointed u/s 16(2) of the Code. By G.O.Ms. No. 1293 on the recommendation of the Government of India, the State Government constituted two Additional Metropolitan Magistrate Courts in the City of Madras for the speedy and effective prosecution of economic offences. It was pointed out that in this G.O. the recommendation of the Central Government was that the Additional Court may be established exclusively for dealing with economic offences. The Constitution of the Special Courts was for the speedy trial of economic offences in the State of Tamil Nadu.
The constitution of the Courts of the Additional Chief Metropolitan Magistrates at Madras was u/s 16 of the Code. All that the second Government Order did was to introduce an amendment to cover the Imports and Exports (Control) Act, 1947 and other enactments listed therein.
Simply because the typed copy of G.O.Ms. No. 446 shows that in exercise of powers conferred by the proviso to Sub-section (1) of Section 11 of the Code, the amendment had been made without reference to Section 16 of the Code, the argument that special power had not been conferred on those Magistrates cannot be accepted. The Judicial Magistrates of the First Class in any metropolitan area is designated as Metropolitan Magistrate, as is evident from Section 6 of the Code of Criminal Procedure. u/s 11 of the Code, establishment of Courts is districts not being a metropolitan area is dealt with. Section 16, as such, does not deal with establishment of Special Courts for any local area. Metropolitan Magistrates in any metropolitan area are the Judicial Magistrates of the First Class and, therefore, the amended notification covering several Central Acts and requesting the High Court to direct the Chief Metropolitan Magistrate to distribute economic offence cases pending or filed under various Acts to the Two Courts constituted under the earlier Governments Order is certainly valid. The Special Courts were already constituted and only the distribution of works in respect of the Central Enactments contemplated therein was sought to be effected by the latter Government Order.
Once the Constitution under G.O.Ms. No. 1293 was of Additional Chief Metropolitan Magistrate Courts in the city of Madras, these two additional Chief Metropolitan Magistrates appointed u/s 16 of the Code, derived all the powers they could exercise, under the Code of Criminal Procedure. G.O.Ms. No. 446 does not take away the powers vested in the Additional Chief Metropolitan Magistrate Courts, under the Code of Criminal Procedure. The notification placed before me do not expressly exclude the trial of other offences. The notification also do not exclude the operation of the Code of Criminal Procedure. It is settled law that when there is no specific provisions contra, the provisions of the Code of Criminal Procedure will be applicable.
Under the Essential Commodities Act, the Special Court was constituted u/s 12A and, therefore, the constitution of the Court, as such, was not under the provisions of the Criminal Procedure Code. Similarly, Special Courts constituted under the Criminal Law (Amendment) Act were u/s 6 of the said Act. Since these Special Courts were constituted not under the Criminal Procedure Code, but under these enactments, it appears that as an abundant caution u/s 7(3) of the Criminal Law (Amendment) Act and Section 12AA(2) of the Essential Commodities Act, provisions were made that the Special Courts may also try an offence other than an offence under the particular Act, with which the accused may, under the Code, be charged at the same trial. Such specific provision does not appear to be necessary, for the Economic Offences Courts were constituted under the Code of Criminal Procedure and all the powers these courts have under the Code can be exercised as long as there was no prohibition. It may be that after the constitution of the Special Courts for trial of economic offences, the regular Courts of Magistrates can no longer try economic offences, for the purpose was, to have a speedy trial in respect of economic offences. The vice versa position that the Special Court constituted to try economic offences cannot try offences under the Penal Code cannot be accepted. The notification itself shows that the pending cases and these to be filed in relation to economic offences, will be distributed to the two Courts specially constituted at Madras, for the said purpose. It could not have been the intention of the law maker, to have two different trials in respect of the same accused, witnesses being common one for the trial of the Penal Code Offences and other for the offences under the Imports and. Exports (Control) Act 1947, though both the offences form part of the same transaction and rest on the same factual details. The very purpose of a speedy trial for the economic offences will then get extinguished.
The provisions of Sections 220 and 223, Code of Criminal Procedure, would certainly permit the trial of offences under the Indian Penal Code, along with the offence alleged u/s 5 of the Imports and Exports (Control) Act, 1947.
In Major E.G. Barsay Vs. The State of Bombay, while considering the provisions of Army Act, it was stated that the Army Act did not expressly or impliedly bar the jurisdiction of Criminal Courts in respect of acts punishable, both under the Act and other laws. It was also held that the fact that some of the offences with which the accused persons were charged were not those enumerated in Section 6 of the Criminal Law
(Amendment) Act, would not take away the jurisdiction of Special Judge.
In Union of India v. Maj.I.C. Lala 1975 L.W. (Crl.) 19 : 1975 M.L.J. Crl. 180 while considering the legality of a joint trial of private businessmen along with two Army Officers by a Special Judge for offences u/s 5(2) of the Prevention of Corruption Act and Section 420 read with Section 120-B and 511, Indian Penal Code, it was observed that there could be no objection to the businessmen being tried along with two Army Officers in view of Section 6 and 7(3) of the Criminal Law (Amendment) Act, 1952 read with Section 239 of the Code of Criminal Procedure Code (new Section 223). In that case one charge which was common to all of the three of them was, that all of them agreed to commit or caused to be committed offences u/s 5(2) of the Prevention of Corruption Act and of cheating punishable u/s 420 of the Penal Code, these offences having been committed in pursuance of a conspiracy punishable u/s 120-B of the Penal Code read with these sections. The businessman was charged u/s 420 Penal Code as well as Section 511 read with Section 420 I.P.C. The two Army Officers were also charged with offences u/s 420 read with Section 5(1)(d) of the Prevention of Corruption Act. The Supreme Court observed as hereunder, after taking not of its earlier decision in ""The State of Andhra Pradesh v. Kandimalla Subbiah and Anr. (Sic) u/s 235 of the Code of Criminal Procedure if in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with, and tried at one trial for, every such offence, and u/s 239 persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence may be charged and tried together.
In The State of Andhra Pradesh v. Kandimella Subbiah and Anr. (Sic) the Court observed:
No doubt, the offence mentioned in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charge Section 239 would apply. This section provides that the following persons ""may be charged and tried together, namely:
(1) persons accused of the same offence committed in the course of the same transaction;
(2) persons accused of an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction. Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1.
C.J.R. Paul., J., of this Court in In Re: Raju, while considering powers of the Special Honorary Presidency Magistrates vis-a-vis Section 18 and 21 of the Code of Criminal Procedure, 1898, held that the powers of a Special Honorary Presidency Magistrate appointed u/s 18 be the State Government and empowered to sit singly was possessed of all powers of a Presidency Magistrate under the statute itself. These powers cannot be controlled or circumscribed by the State Government by means of any Government Order, much less can the Chief Presidency Magistrate curtail or limit or circumscribe the statutory powers conferred on the Presidency Magistrates by means of any rule framed u/s 21. It was further observed, that the nature of power conferred on the Chief Presidency Magistrate was only to regulate conduct and distribution of business in Courts of Presidency Magistrates and not to limit the statutory powers of Presidency Magistrates. The learned Judge was considering the legality of a conviction recorded by a Mobile Court, presided over by a Special Honorary Presidency Magistrate, for an offence u/s 112 of the Motor Vehicles Act read with Rule 323 of the Madras Motor Vehicle Rules. It was stated that though the offence was not specified in Rule 8, the said Magistrate had jurisdiction and power to try the revision Petitioner herein for the offence alleged and convict him. This ruling makes it clear that the Additional Metropolitan Magistrates appointed as Economic Offences Courts under the Code of Criminal Procedure have powers vested on them under the Code and these powers cannot be controlled as circumscribed. The Imports and Exports (Control) Act also, does not prohibit the exercise of powers of the Economic Offences Court for trying offences other than those under the Act.
J.D. Jain, J., of the Delhi High Court in State v. Gopalkrishan (Sic) had to consider the legality of a prosecution initiated on a police charge sheet against the accused therein u/s 120-B read with Sections 420, 467, 468 and 471 I.P.C. as well as u/s 5 and 6 of the Imports and Exports
(Control) Act, 1947. The learned Judge observed as follows:
It is well established principle that a prosecution for a lesser offence should not be launched when the facts alleged constitute a graver offence. The provisions of Section 6 cannot be evaded by resorting to device or camouflage by changing the garb or label of an offence which was essentially or primarily offence u/s 5 of the Act. In choosing to prosecute the accused for a graver offence, under the general law the prosecution could not be recorded as having acted colorably. If the prosecution were to be restricted, graver offences would go unpunished.
It was held that the accused cannot be discharged merely for want of a complaint by a competent person. It was stated by the learned Judge, that the point for consideration simply was whether the distinct offences had been committed by the accused in the same transaction and the answer must necessarily be given in the affirmative.
In the State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, it was held, that where offences had been committed in pursuance of a conspiracy, it was legally permissible to charge the accused with those offences as well as the conspiracy to commit those offences.
Conspiracy was an entirely independent offence and though other offences are committed in pursuance of the conspiracy, the liability of the conspirators for the conspiracy itself cannot disappear. It was also stated therein, that it was open to the Court to avail itself cumulatively all the provisions of the different Clauses of Section 239 (Present Section 223) Code of Criminal Procedure for the purpose of framing charges.
As rightly contended by Mr. B. Sriramulu, the conferring of powers on the Special Courts, was for speedy trial of economic offences by the Additional Chief Metropolitan Magistrates, who were appointed under the Code of Criminal Procedure and, therefore, the conferring of Additional powers does not erase the powers they already possess under the code to try offences under the Penal Code.
The last ground relates to lack of averments in the complaint, of an agreement between the accused to constitute conspiracy, and the further lack of material even to remotely connect the Petitioners with abetment of the offences alleged. It was vehemently argued by Mr. G. Subramaniam, that the Petitioners have no role to play in the obtaining of the licences and only thereafter they came into the picture when these licences were handed over to them at Bombay for processing. He referred to the averments in the complaint and submitted that no particulars had been given in the complaint to ex facie cull out any offence against the Petitioner. According to the learned Counsel, independent stray acts averred against the Petitioners, which were incidental to their business, cannot make them either conspirators or abettors. If that be so, the learned Counsel urged that there would be fit cases, where inherent powers u/s 482 Code of Criminal Procedure could be invoked, to exonerate the Petitioners, even at this stage.
In cases of conspiracy it is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. In a case of conspiracy when there is no direct evidence, inference from proved circumstances, can be drawn to a large extent, to form the basis of the Court's conclusion, as long as the circumstances were not capable of any other reasonable interpretation. It is settled law that from the acts and conduct of the parties an agreement could be inferred. In all cases, a conspiracy need not have to be established by evidence of an actual agreement between the conspirators so long as the over acts alleged raise a presumption of an agreement and knowledge of the purpose of the conspiracy.
It is quite true, that the approver has not implicated the Petitioners, with the alleged conspiracy and a direct agreement, as such, between the parties is also not discernible. However, certain circumstances are available on record, which prima facie indicate that the Petitioners had their role to play in that alleged conspiracy. It must also be remembered that at this stage we are not concerned with the truth or otherwise of the allegations made in the complaint and the records accompanying it, for that would be investigated at the time of trial.
The averments made in both the complaints have been extracted in extenso in the earlier part of this order. In Crl. M.P. No. 4405 of 1986, referable to C.C. No. 1450 of 1985, the definite averments in the complaint are that the two licences were handed over to the first Petitioner, who along with his sons, Petitioners 2 and 3 and three others had arranged for imports of the materials through Bombay Port. In respect of one of the licences, the L.A. holder was M/s. Kamal Industries, Bombay and the clearing agent for both the licences was Orient Transport Company, Bombay. The complaint also shows that the clearance of goods was arranged at the request of the Petitioners and their associates and the declaration in respect of one licence attached to the bill of entry was signed by A-11, who was a petty employee working under A-9 Lali Nanda, a close associate of the Petitioners. The complaint also shows that A-11, who had no means whatsoever, was introduced to the Bank by the third Petitioner and the entire transactions were carried out by Petitioners 1 and 3. The third Petitioner had also executed a counter guarantee. A specific averment has been made in the complaint, that the entire transactions relating to the L.C. were carried out by the Petitioners. Apart from the allegations in the complaint, the documents forwarded to court, which are in the form of statements recorded during investigation from several witnesses, of which copies have been furnished to the Petitioners, show that the total amount of the L.C. opened in the name of M/s. Kamal Industries in the Bank of Cochin was met out of the total limit of Rs. 2 crores sanctioned to M/s. Steel Industries of India, Bombay, belonging to the Petitioner and that it was M/s. Steel Industries of India which had made imports in the name of M/s. Kamal Industries and other firm, as well.
This is evident from the statement of C.J. Antony, Manager, Bank of Cochin, Bombay Branch. The statements of Kiran P. Dalal, the partner of M/s. Orient Transport Company, Bombay, shows that the Petitioners and their friend Lali Nanda (A-9) requested him to file the bills of entry for clearing stainless steel sheets concerned in the two licences. According to him M/s. Kamal Industries was represented by the aforestated four persons and A-11. The octroi in respect of these materials were paid by M/s. Orient Transport Company on behalf of the importers and the goods cleared were transported to the godown of the first Petitioner in Sakinaka, Chembur, Bombay. The goods were not transported out of Bombay.
In the complaint in C.C. No. 11 of 1986 referable to Crl. M.P. No. 13058 of 1986, the averments show, that an indent was placed on M/s.
Samissa Company Limited, Seoul through M/s. Modi Brothers, Bombay an intending agent by the third Petitioner and Lali Nanda (A-9) representing M/s. Kamal Industries, Bombay. The application with the signature of A-18 (a petty employee) under A-17, was submitted through the Bank of Cochin, Bombay for opening L.C. in favour of the company at Seoul. The documents were retired by M/s. Kamal Industries, Bombay. The import documents were handed over to the clearing agents by the second Petitioner and at the instance of ail the Petitioners, the material covered under the licence was transported to the godown of the first Petitioner. It is the further averment, that those materials were sold in open market and never reached the factory premises, which itself had no capacity to manufacture more than 3 mts. and, therefore, cannot execute such an export order. There is a further allegation, that the foreign firm M/s. S.S. Sports Centre (Private) Limited, Singapore, was not dealing in stainless steel. It was to this centre that the firm, which was M/s. Chitrakala Industries, should export, as stipulated in the export order dated 14-1-
1980. It is true that the prosecution had not been able to place any evidence about the sale of material in the open market, but the fact remains that the imported material was taken to the godown of the first Petitioner and did not leave the shores of Bombay, let alone the Singapore company not dealing in stainless steel sheets at all.
In the statements of witnesses, which have been forwarded to the trial Court, of which copies had been furnished to the Petitioners, the complicity of the Petitioners is evident. Tilak Devji has stated that A-9 Lali Nanda had told him, that an account with the Bank of Cochin, Bombay, was to be opened in the name of M/s. Kamal Industries with the address as unit No. 49, A to Z Industrial Estate, Lower Parel, Bombay. The witness filled up the account form and had it signed by A-18, who was working as a labourer under Lali Nanda. It is this witness, who had introduced the Petitioners to Lali Nandha. He is certain that Petitioners 1 and 3 were operating the account in the name of M/s. Kamal Industries, for at their instance he had deposited cash in the account of M/s. Kamal Industries. He has also stated that he used to visit the Bank of Cochin, Bombay, for retirement of import documents, on instruction from the Petitioners. On their instructions he had also handed over shipping documents to M/s. Orient Transport Company, clearing agents, Bombay. The statements of K.M. Kurian, Officer, Head office of Bank of Cochin, shows that the L.Cs. were opened against L.C. margin of Rs. Two Crores sanctioned to M/s. Steel Industries of India, Bombay. Regarding this L.C. the bank used to receive instructions from the Petitioners 1 and 3. These two Petitioners used to send Lali Nanda for remitting monies. He has also stated that for the clearance of the consignment imported in the name of M/s. Kamal Industries, bank guarantees were issued on instructions from Petitioners 1 and 3 of M/s. Steel Industries of India. Similar are the statements of Jay Augustine, officer in the accounts department of Bank of Cochin and M.C. Joss, the then branch manager of Bank of Cochin.
Mr. G. Subramaniam, learned Counsel appearing for the Petitioners did not contend that the statements of witnesses had not accompanied the complaint, but were sent to Court only a few days later and, therefore, strictly the statements of witnesses could not be looked into at this stage, for they had not accompanied the complaint. This argument has to be stated only to be rejected, for soon after the complaint was filed within 2 or 3 days, these documents had reached the Court and the Petitioners had also been furnished with the copies of all the statements. On 25-11-1986 the Petitioners had asked for copies of certain other documents, which the Respondent had undertaken to furnish to them, if not already supplied.
Since all the offences referred to in the complaint are cognizable, investigation had been done by the C.B.I. and in view of the bar u/s 6 of the Imports and Exports (Control) Act, to take cognizance on a police report, the complaint was filed by the Respondent. The facts aforestated clearly show, that the materials referable to the licences, have been imported, but no export was done after manufacturing them into articles. The finance had been provided by the Petitioners and a petty employee had been shown to represent M/s. Kamal Industries, though all the operations were done by the Petitioners and their close associates. The imported goods on documents, not genuine, had reached the godown of the first Petitioner.
Therefore, it cannot be stated at this stage, that there is no material whatsoever to connect the Petitioners with offence of conspiracy alleged, to commit the other offences referred to the complaint, in pursuance of the conspiracy. It cannot also be argued, on this material, abetment of the offences cannot arise, as against the Petitioners. Section 107, Indian Penal Code would also take in conspiracy to commit offences. I am not, therefore, impressed, that on a reading of the complaint and the documents accompanying it, no offence had been made out.
The learned Counsel appearing for the Petitioners referred to the following cases in his attempt to substantiate, that the inherent powers of this
Court can be exercised in these petitions to halt the pending proceedings, in so far as they relate to the Petitioners:
(1) State of U.P. Vs. R.K. Srivastava and Another,
(2) S.D. Ashok Kumar v. State of Madras 1989 T.L.N.J. (Crl.) 266;
(3) J.P. Sharma Vs. Vinod Kumar Jain and Others,
(4) State of Bihar Vs. Murad Ali Khan and Others,
(5) State of Karnataka Vs. L. Muniswamy and Others, and
(6) Dr. Sharda Prasad Sinha Vs. State of Bihar,
From the earliest decision in R.P. Kapoor v. State of Punjab till the decisions of the apex Court in State of U.P. Vs. R.K. Srivastava and Another, the principles of law are well settled, which would permit the sparing exercise with circumspection of the powers u/s 482 Code of Criminal Procedure, by the High Court. In exercising this jurisdiction the High Court is not permitted to embark upon an enquiry whether the allegations in the complaint are likely to be established by the evidence or not. That function will have to be relegated to the trial Magistrate when evidence is placed before him. It has always been stated, that it was neither possible nor advisable to lay down any inflexible rules to regulate this jurisdiction, but the High Court would be guided by the allegations set out in the complaint or the charge sheet, spelling out the offences alleged or otherwise. In the first case numbered above the Supreme Court quashed Criminal proceedings instituted on the basis of the first information report, for on facts when Rs. 54,600/- had been allowed to be withdrawn by Sarwan Singh and his wife, necessary entries had been made in the books of accounts and it was not understandable, how these entries could be characterised as false entries. It was noticed, that there was some delay in crediting in the account, the money against three cheques. The allegations did not show any dishonest act or deliberate intention to cause wrongful gain or wrongful loss. The facts therein can stand no comparison to the prima facie incriminating allegations made against the Petitioner herein.
The second case aforementioned was decided by me and as stated therein it was one of these rarest of rare cases where the liberty of an individual had to be protected zealously by the Court, in view of lack of bonafides in the commencement and continuation of the investigation. The learned Counsel fairly stated that these facts were totally different and except for placing before me the principle laid down therein, he would not add anything further.
The third case arose under Imports and Exports (Control) Act and the Supreme Court disagreeing with the High Court of Delhi, set aside the order by which the prosecution was quashed. It was observed that at that stage it was not whether there was any truth in the allegations made, but the question was whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The limits of the power u/s 482 Code of Criminal Procedure were reiterated, in that of taking all the allegations in the complaint to be true without adding or subtracting anything, if it cannot be said that no prima facie case for trial had been made out, the High Court would have exceeded its jurisdiction in quashing the prosecutions u/s 482 Code of Criminal Procedure.
In the fourth case cited, the same principles were reiterated by the Apex Court.
In fifth and sixth cases, the Supreme Court observed, that quashing was permissible, if the allegations set out in the complaint or the charge sheet, do not constitute any offence and that the considerations justifying the exercise of inherent powers for securing the ends of justice, would vary from case to case and the instances cited in Kapoor's case would only be illustrative and cannot be regarded as exhaustive.
In the Delhi Municipality v. Ram Krishnan (Sic) the Supreme Court stated as hereunder:
Proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is taking the allegations is the complaint and they are without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its powers u/s 482 Code of Criminal Procedure.
Therefore, this Court would be entitled not only to look into the allegations in the complaint, but also in the records forwarded to Court on the basis of the investigation made by the C.B.I., the copies of which records have been furnished to the Petitioners. The Petitioners in these private complaints are definitely in an advantageous position, for they know the details of the prosecution case to be unfurled, through the several witnesses cited in the complaint and they would not be taken by surprise.
Finally, the learned Counsel cited the decision rendered by me in Jainson and 4 Ors. v. State to impress upon me that the Petitioners cannot be made liable for abetment of the offences alleged. Apart from the facts detailed therein being totally different where the ingredients of abetment could not be spelt out, there is charge of conspiracy as well against the Petitioners herein. I am also unable to agree that the material placed before Court will not be sufficient to take in the ingredients necessary to constitute abetment of the other offences.
All the contentions having failed, these petitions deserve dismissal. Accordingly, both the petitions are dismissed.