Roshanlal Agarwal and Others vs Deputy Chief Commissioner of Imports and exports and Others

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.