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Judgment
N. Ananda, J.—The trial court has discharged petitioner (accused No. 2) on the ground that in the mailer of collection of penalty, Tribunal has held that petitioner (accused No. 2) is not liable to pay duty and penalty. The learned trial Judge following the judgment reported in G.L. Didwania and Another Vs. Income Tax Officer and Another, has held that in view of order passed in Appeal Nos. C/12/2000 & C/13, 18 & 20/01 dated 07.10.2005, there is no material to frame charge against petitioner. The trial court has discharged petitioner by invoking section 245(2) Cr.P.C. u/s 245(2) Cr.P.C., the learned Magistrate can discharge accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
2 In relation to duty and penalty levied on accused No. 1, he was before this court in CSTA No. 27/2007 dated 09.06.2011, wherein this court has held:-
Having regard to the said material available on record, it is clear that the material found against the appellant is entirely different from the material found against M/s. MNS Exports Private Ltd., as the employees of M/s. MNS Exports Private Ltd. and Sri Bhaskar colluded with the appellant herein for recycling the imported goods. Therefore, it is clear that the mere fact that M/s. MNS Exports Private Ltd., have been absolved cannot be a ground to absolve the appellant herein as he is liable to be imposed penalty u/s 112(b)(ii) of the Act and the quantum of penalty awarded is also justified and we answer the question of law against the appellant and in favour of the revenue and pass the following order:
The appeal is dismissed.
The decision reported in G.L. Didwania and Another Vs. Income Tax Officer and Another, relates to offences under the Income Tax Act.
In the case on hand, petitioner is alleged to have committed an offence punishable u/s 135 of the Customs Act. Therefore, learned Magistrate should not have?
invoked section 245(2) Cr.P.C.
The learned counsel for petitioner submits that accused No. 1 has been discharged by learned Magistrate. The order of discharge was challenged by complainant before this court and this court has dismissed the same as barred by time.
The learned counsel for petitioner would submit that accused No. 3 and accused No. 5 pleaded guilty and they have been convicted. In the circumstances, trial court cannot proceed against petitioner (accused No. 2) alone.
The learned trial Judge has discharge accused No. 1 and thereafter he has discharged petitioner under different orders. The procedure adopted by learned Magistrate is opposed to the provisions of section 245(2) Cr.P.C. The learned Magistrate should have passed order u/s 245(2) Cr.P.C., having regard to overall facts and circumstances of the case. The learned Magistrate should not have resorted to discharge accused 1 & 2 at different points of time when accused No. 1 is alleged as principal offender and accused No. 2 is alleged as an a bettor. In the circumstances, how far discharge of accused No. 1, which has attained finality has bearing on the case instituted against petitioner (accused No. 2) has to be decided by trial court. Therefore, I pass the following:-
ORDER
The revision petition is accepted. The impugned order is set aside. The matter is remanded to learned Magistrate for reconsideration in the light of observations made herein and in accordance with law. The learned Magistrate while reconsidering the matter shall not be influenced by the observations made herein.