PETITIONER:
RATILAL BHANJI MITHANI
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT28/09/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
CITATION:
1979 AIR 94 1979 SCR (1) 993
1979 SCC (2) 179
ACT:
Code of Criminal Procedure 1898, (5 of 1898)-Charge
framed-Whether Magistrate has power to cancel the charge and
discharge the accused.
'Discharge' and 'Acquittal'-Distinct concepts
applicable to different stages of proceedings.
HEADNOTE:
The appellant and six others were charged with the
offence of entering into criminal conspiracy, with intent to
defraud the Government of the duty payable on various
contraband goods, etc. and thereby committing offences under
s. 120B I.P.C.. read with 6. 167(81) of the Sea Customs Act
1878 and s. 5 of the Import and Exports Act 1947.
The prosecution alleged that is a result of the
criminal conspiracy twenty-four consignments of goods came
from abroad and were received in Bombay and it is the case
of the prosecution that it has in its possession 10
verladescheins (called as 'mate sheets' or receipts) which
give the description of the contraband goods. Out of there
10 verladescheins, 2 relate to consignments of two firms for
which the appellant held powers-of-Attorney.
The Trial Magistrate held that 10 out of the 20
Verladescheins were inadmissible either under the Evidence
Act or under the Commercial Documents Evidence Act 1939 and
that 9 out of the 10 Verledescheins were admissible under s.
10 of the Evidence Act. He also excluded some other letters
and correspondence on the ground that they could not be said
to have been written in furtherance of the conspiracy .
On the basis of the evidence recorded, the Magistrate
framed charges against the appellant and the co-accused.
The prosecution as well as the appellant filed revision
applications in the High Court. A single Judge of the High
Court held that the Magistrate will have to consider afresh
whether the documents, which he had admitted under 6. 32 or
s. 10 of the Evidence Act were admissible or not and also
consider whether it was necessary to frame additional
charges.
After this order, the Additional Chief Presidency
Magistrate discharged the accused on the grounds that since
no overt act was proved against the appellant and certain
other accused no consideration can be inferred as against
them.
A Division Bench of the High Court allowed the revision
petition filed by the prosecution and held that the
Magistrate had no legal power to discharge the accused after
framing the charge.
In the appeal to this Court it was contended on behalf
of the appellant that in passing the impugned order, the
Magistrate was simply acting in consonance with the
observations and implied directions contained in the order
of the High Court.
994
Dismissing the appeal,
^
HELD: 1. From the scheme of the provisions contained
in ss. 252 to 57 given in Chapter XXI of the Code of
Criminal Procedure 1898. it is clear that in a warrant case
instituted otherwise on a police report, 'discharge' or
'acquittal of accused are distinct concepts applicable to
different stages of the proceedings in the Court. The legal
effect and incidents of `discharge' and 'acquittal' are also
different. An order of discharge in a warrant case
instituted on complaint can be made only after the process
has been issued and before the charge is framed. A discharge
without considering the evidence taken is illegal. If a
prima facie case is made out the Magistrate must proceed
under s. 254 and frame charge against the accused. The trial
in a warrant cause starts with the framing of charge; prior
to it the proceedings are only an inquiry. After the framing
of charges if the accused pleads guilty, the Magistrate is
required to proceed with the trial in the manner provided in
s. 254 to 258 to a logical end. Once a charge is framed, the
Magistrate has no power to cancel the charge and reverse the
proceedings to the stage of s. 353 and discharge the
accused. [1004 F-G, 1004H 1005 A-B]
2. After a charge is framed, the Magistrate has no
power under the Code to discharge the accused. He can
either acquit or convict the accused unless he decides to
proceed under ss. 349 and 562 of the Code of 1898 (which
corresponds to sections 325 and 360 of the Code of 1973).
Exception where the prosecution must fail for want of a
fundamental defect, such as want of sanction, an order of
acquittal must be based upon a 'finding of not guilty'
turning on the merits of the case and the appreciation of
evidence at the conclusion of the trial. [1005 C-D]
3. If after framing charge the Magistrate whimsically,
without appraising the evidence and without permitting the
prosecution produce all its evidence, 'acquits' the accused,
such an acquittal, without trial even if clothed as
'discharge' will be illegal. [1005 E]
4. In the instant case the Magistrate framing charges
against the appellant. On the disposal of the revision
application be arbitrarily deleted those charges and
'discharged' the accused without examining the remaining
prosecution witnesses. [1005 F]
5. Assuming arguendo, the Magistrate's order of
discharge was on order of 'acquittal' then also, it was
manifestly illegal. It was not passed on merits, but without
any trial, with consequent failure of Justice. The High
Court has undoubtedly the power to interfere with such a
patently illegal order in the exercise of its revisional
jurisdiction under s. 439 and direct a retrial. Such retrial
will not be barred by the provisions of s. 403 (of the Code
of 1898), the earlier proceedings taken by the Magistrate
being no trial at all and the order passed therein being
neither a valid 'discharge' of the accused nor their
acquittal as contemplated by s. 405(1). [1007 F-H]
Mohd. Safi v. State of West Bengal AIR 1966 SC 69
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
95 of 1 977.
Appeal by Special Leave from the Judgment and order
dated 21-1-76 of the Bombay High Court in Criminal Revision
Application No. 565 of 1969.
995
I.N. Shroff and H.S. Parihar for the Appellant.
Soli J. Sorabjee, Addl. Sol. Genl (for Respondent No.
2), K.N. Bhat, H.R. Khanna, M.N. Sroff and Girish Chandra
for Respondents Nos. 1 and 2.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave is directed
against a judgment, dated January 21, 1976, of the High
Court of Judicature at Bombay in Criminal Revision
Application No. 565 of 1969, whereby it set aside an order,
dated February 26, 1969, of the Chief Presidency Magistrate
and directed the latter to restore Case No. 244/C.W. of 1968
against the accused persons, excepting accused No. 7 (who is
since dead) for being dealt with in the light of the
observations made therein.
The case was originally instituted on April 1, 1961 on
the basis of a criminal complaint filed by the Assistant
Collector (Customs) in the Court of the Chief Presidency
Magistrate, Esplanade, Bombay. It is alleged in the
complaint that between August 1957 and March 1960, offences
under Section 120-B, I.P.S., read with Section 167(81) of
the Sea Customs Act, 1978, and Section 5 of the Imports and
Exports Act, 1947, were committed by one Ramlal Laxmidutta
Nanda and seven others, including the appellant, who is
accused No. 2 in the Trial Court. Ramlal Laxmidutta Nandas
was alleged to be the principle culprit. He died on
September 15, 1960. As a result of a conspiracy, twenty-four
consignments of goods came from abroad and were received in
Bombay. The conspiracy was carried out in this manner by
steamer, two consignments hearing similar marks would arrive
such as M.T.S. M.I.S. marked in triangle. The first
consignment would contain the genuine goods and the second
consignment would contain less number of cases than the
first consignment. The documents would arrive for the first
consignment. With the help of the documents for the genuine
goods, the Customs examination would be carried out, and
then at the time of removing the real consignment,
contraband consignment plus one case of the genuine
consignment would he removed. Remaining goods of the genuine
consignments with their marks tampered, would be left
unattended in the docks. Out of the 24 consignments brought
into India, the last four were seized by the Customs. The
appellant Mithani was not linked with any of those four. But
with regard to the remaining 8 out of the twenty
consignments the prosecution alleges that it has in its
possession 10 Verladescheins (called as ‘mate sheets or
receipts’) which give the description of the contraband
goods. Out of these 10 Verladescheins.
996
2 relate to consignments in the name of Suresh Trading Co.
and Dee Deepak & Co. From the proprietors of these two
firms, the appellant Mithani held Powers of Attorney.
Mithani was arrested and bailed out on May 11, 1960.
Between March 1962 and December 1962, the prosecution
examined about 200 witnesses before the Magistrate, but had
not yet examined any witness in regard to any of the 10
Verladescheins.
The complainant made an application to the trial
magistrate, requesting him to get on record a number of
documents falling into these categories, viz. (1)
Verladescheins (Mate’s receipts), (2) the correspondence
that passed between Shaw Wallace & Co. and their principals
and agents abroad and also the correspondence that passed
between the other shipping agents in Bombay with their
principals, and (3) the documents concerning the Company
known as C.C.E.I. at Zurich.
By an order, dated August 24, 1962, the Magistrate held
that 10 out of the 20 Verladescheins were inadmissible
either under the Evidence Act or under the Commercial
Documents Evidence Act 1939. By another order, dated
December 6, 1962, the Magistrate held that 9 out of the 10
Verladescheins were admissible under Section 10 of the
Evidence Act. Some other letters and correspondence were
also excluded on the ground that they could not be said to
have been written in furtherance of the conspiracy.
On December 12, 1962, the Magistrate found that no
other witness for the prosecution was present. He,
therefore, passed this order
“None of the witnesses are present. The case is
very old. There is enough evidence for the purpose of
charge and about 200 witnesses are examined.
Prosecution may examine all witnesses as they deem
proper after the charge. Prosecution closes its case.
Accused statement recorded. Adjourned for arguments for
charge to 13.12.1962.”
The Magistrate then heard the arguments and thereafter
on December 21, 1962, on the basis of the evidence already
recorded, framed charges against Mithani and his 6 co-
accused. Under the first charge, Mithani (accused No. 2) was
jointly charged with Accused 1, 3, 4, 5, 6 and 7 with
criminal conspiracy between September 1957 and February 1,
1960 or thereabout, with intent to defraud the Government of
India of the duty payable on various contraband goods and to
evade the prohibition and restrictions imposed relating
thereto for acquiring possession of large quantity of
contraband goods etc. It was specifically recited in the
charge that accused No. 2 was. at the relevant time,
997
partner of Shanti Lal and Chagan Lal & Co., Bombay, and also
constituted Attorney of Suresh Trading Co., Dee Deepak &
Co., New Delhi, and also of Eastern Trading Corporation,
Bombay and had an interest in all these three concerns.
On February 19, 1963, the State filed Criminal
Revisions Application No. 107 of 1963 in the High Court
against the orders dated August 24, 1962 and December 6,
1962 of the Magistrate, whereby the latter had refused to
admit 11 Verladescheins out of 20 in evidence. The State,
also, made a grievance against the failure of the Magistrate
to frame charges in respect of certain alleged acts of the
accused. It was contended that the Magistrate had unduly
curtailed the period of conspiracy, while, the evidence
brought on the record by the Prosecution showed that this
period was longer than what the Magistrate had taken into
account.
On July 17, 1964, Mithani, also, filed Criminal
Revision No. 574 of 1964 in the High Court, challenging the
Magistrate’s order, dated December 6, 1962, whereby he had
admitted 9 Verladescheins, Bills of Lading, Invoices etc.,
into evidence. It was further alleged in the Revision
Petition: “It ought to have been appreciated that all the
Verladescheins, Invoices and Bills of Lading being
inadmissible, there is no evidence left on record to make
even a prima facie case against the petitioner.” The
Revision petitioner, inter alia, prayed “that the order of
the learned Magistrate dated December 6, 1962, in so far as
it is against the petitioner, and the charges framed by the
learned Magistrate against the petitioner, be set aside and
he be discharged from the case.”
Revision Application No. 107 by the State was heard by
Mr. Justice H.R. Gokhale (as he then was) on August 19,
1964. It was contended there on behalf of the prosecution
that all the Verladescheins were straightway admissible
under sub-section (2) of Section 32, Evidence Act. Gokhale,
J. Held that since the preliminary condition set out in the
prefatory part of Section 32, (Viz., that the persons whose
statements are sought to be admitted under Section 32 are
such that their attendance cannot be procured without an
amount of delay or expense, which under the circumstances of
the case, may appear to the Court to be unreasonable, had
not been satisfied these Verladescheins (Mates receipts)
would not be admissible under Section 32. In view of this,
finding the learned Judge felt that “it really does not be
come necessary to consider that these Verladescheins were
not prepared in the ordinary course of business”. The
learned Judge was careful enough to caution: “I am not
suggesting that for the reasons all these documents are
false.” Indeed, he conceded that they may be
998
relevant to the facts in issue, and added: “If the
prosecution desires to rely upon the evidence of these
documents the prosecution certainly will be entitled to
prove them or to prove the correctness of the description of
the document in the ordinary way without having report to
the exception contained in Section 32.”
As regards the question whether these Verladescheins
were admissible under Section 10, the learned Judge held
that “before considering this question, it would be wrong to
look at these very documents the admissibility of which is
in dispute”, and that “such a conclusion can be reached from
evidence, documentary, oral or circumstantial, but apart
from the disputed document itself. It does not appear from
the order of the learned Magistrate that there was any
independent material from which he had formed the opinion
that two or more persons had conspired together to commit an
offence.” The learned Judge significantly added: “If there
is any such material or if the prosecution leads further
evidence and if such material is brought on record, the
learned Magistrate will, at the appropriate stage, be
entitled to take this material into consideration and decide
whether these documents can be admitted under Section 10 of
the Evidence Act.” The learned Judge pointed out that this
could include an attempt to take out the goods. In this
connection he observed: “If apart from the question of the
period during which the conspiracy extended they are not
admissible in evidence, because other conditions required to
be satisfied under Section 10 are not satisfied, then it is
another matter. But I cannot accept his conclusion that they
would not be so admissible, because they do not fall within
the period of conspiracy.” The learned Judge concluded: “I
have no doubt that the learned Magistrate will have to
consider afresh whether the documents, which he has admitted
under Section 32 or Section 10 are admissible or not. In any
case, the order which he has made admitting certain
documents under Section 10 or Section 32 was an
interlocutory order and the learned Magistrate will be
entitled to reconsider the position in the light of the
observations in this judgment. The learned Magistrate on the
light of the view which I have taken, will also consider
whether it is necessary to frame additional charges and to
pass an appropriate order.”
The Revision Application No. 574 of 1964, filed by
Mithani, was rejected by a separate order, dated August 21,
1964 on the ground that in the view which the learned Judge
had taken in Criminal Revision
999
No. 107 of 1963, it was not necessary to admit this Revision
Application. It was, however, observed that the Magistrate
will take the observations in that judgment into
consideration and consider “whether the interlocutory order,
against which the present Revision Application is filed,
needs to be reviewed.”
The prosecution filed Special Leave Petitions (965 and
966 of 1965) in this Court against the judgment, dated
August 19/20, 1964 of Mr. Justice Gokhale, and against the
High Court’s order refusing to grant certificate of fitness.
This Court on January 27, 1966, summarily dismissed both
these petitions. The prosecution then made an application to
the Magistrate to take some photostat copies of certain
documents. The Magistrate granted this application. Accused
1 challenged this order of the Magistrate in the High Court.
By its order, dated October 4, 1966, the High Court
restricted the time to prosecution by three months for
calling the Foreign Witnesses. After expiration of this
period, the prosecution on January 11, 1967 filed an
application in the High Court for cancellation of Mithani`s
bail on the ground that he was tampering with the witnesses
and abusing the liberty granted to him. The High Court
cancelled Mithani’s bail and Mithani surrendered and was
committed to jail custody on January 13, 1967. Mithani came
by special leave against the order cancelling his bail, to
this Court By order dated May 4, 1967, This Court dismissed
Mithani’s appeal, but restricted the time for examining the
German Witnesses cited by the prosecution upto June 26,
1967. Since there was delay in procuring the attendance of
German Witnesses within the time granted, Mithani was
released on bail by an order dated July 26, 1967 of this
Court. Thereafter, the prosecution applied to the Magistrate
to proceed with the case without the Foreign Witnesses.
On July 10, 1967, the prosecution applied to the
Magistrate for issue of commission for examination of the
German Witnesses at Hamburg or Berlin or London. The
Magistrate rejected this application by his order dated
August 8, 1967. Against the Magistrate’s order, the
prosecution, again, went in revision to the High Court,
which rejected the same by an order in September, 1967.
Another revision petition filed in the High Court by the
prosecution was dismissed by the High Court (V.S. Desai &
Wagle JJ) by an order dated August 9, 1968.
On December 2, 1968, the prosecution made an
application for examining a number of witnesses to establish
the preliminary facts for admission of the Verladasheins and
other documents under Sections 32(2)(3) and 10 of the
Evidence Act and under the Commercial Documents Act. The
Magistrate rejected that application by his order dated
January 9, 1969.
1000
By an order dated February 26, 1969, the Additional
Chief Presidency Magistrate, deleted charges 2 to 9 against
Accused 2 (Mithani), 3 and 7, and ‘discharged’ them. The
following extract from the Magistrate’s order will be useful
to appreciate its true nature:
“I therefore hold that with regard to overt acts
in charges Nos 2 to 9 no charges can be framed against
any of the accused and therefore charges Nos. 2 to 9
will stand deleted.
Accused Nos. 2, 3 and 7 are concerned only in some
of the charges Nos. 2 to 9. They are not concerned in
charges Nos. 10, 11, 12 and 13.
Therefore as no overt act is held proved against
them no conspiracy can be inferred as against them and
therefore charge No. 1 of conspiracy as against them
must go.
Therefore with regard to accused Nos. 2, 3 and 7 I
hold that no case is made out against them and I
therefore hold them not guilty u/s 167 r.w. 81 of the
Customs Act for contravention of Import & Export
Control Act 1947 and 1955 and for conspiracy and order
them to be discharged.”
Against the Magistrate’s order, dated February 26,
1969, the prosecution filed Criminal Revision Application
No. 565 of 1969 in the High Court.
By its judgment dated December 16/17, 1969, a Bench of
the High Court (consisting of Vaidya and Rege JJ.) allowed
Criminal Revision 565 of 1969 mainly on the ground that the
Magistrate after framing the charge, had no legal power to
discharge the accused persons. It was observed that “the
entire complexion of the cases changed on account of the
retirement of the Magistrate. The new Magistrate who will
hear the matter, will have to find out whether he must alter
or vary the charge and for that purpose to issue a fresh
process to the two living deleted accused, after taking into
consideration the evidence already recorded by the former
Magistrate…. and such other evidence he may have to record
hereafter.” The High Court concluded: “We are setting aside
the order of discharge on the ground that it is open to the
new Magistrate to frame a charge against the deleted accused
on considering the material; and also on the ground that the
former Magistrate had no power to discharge the accused
after framing the charge.” The High Court further observed
that, “whatever submissions the accused want to make with
regard to not framing the charges are also open to them.” At
that stage, they did not want and could not consider the
evidence before the Magistrate. In the
1001
result, the order dated February 26, 1969 of the Magistrate
was set aside and the case was restored to the file of the
Magistrate, except with regard to the deceased accused No. 7
for being dealt with as early as possible, in accordance
with law and in the light of the observations made by the
High Court.
Against this order, dated January 21, 1976, of the High
Court setting aside the order dated February 26, 1969 of the
Magistrate discharging the accused, the accused 2 (Mithani)
has come in appeal before us.
The points canvassed by Shri I.N. Shroff, learned
counsel for the appellant, may be summarised as under:
(i) In passing the then impugned order, the Magistrate
was simply acting in consonance with the observation and
implied directions contained in the judgment, dated August
19/20, 1964, of Mr. Justice H.R. Gokhale in Cr. R.A. No. 107
of 1964. On the contrary, the Bench of the High Court
(consisting of Vaidya and Rege JJ) has failed in its duty to
uphold the aforesaid judgment af Mr. Justice Gokhale-which
judgment had been upheld by this Court while dismissing
prosecution’s Special Leave Petitions 965 and 966 of 1975.
Mr. Justice. Gokhale-so proceeds the argument-had held “that
10 Verladasheins were inadmissible under Section 32 and/or
Section 10 of the Evidence Act.” The legal consequence of
this finding was that the charges framed by the Magistrate
on December 21, 1962, on the basis of the said
Verladescheins, were unsustainable in law and the Magistrate
had to examine the matter de novo by ignoring the said
charges or by amending, altering the same-as may be
justified on the remaining admissible evidence on record
(ii) In reviewing and deleting the charges and
discharging the appellant (Mithani) and two other accused,
the Magistrate was acting in accordance with the observation
of Gokhale J. in Cr. R.A. 574 of 1974, which was to the
effect, that it would be open to the Magistrate to consider
whether the interlocutory order against which that revision
application was filed, needs to be reviewed.
(iii) Since the Magistrate had under the Code of
Criminal Procedure, no power to delete the charges framed
against the appellant and two others, it will be deemed that
in tho eye of law those charges still existed when the
Magistrate by his order dated February 26, 1969, discharged
the accused Mithani and two others. This being the case,
this order of “discharge” ought to have been treated as an
order of ‘acquittal’.
1002
(iv) (a) In revision, the High Court was not competent
to set aside this order of ‘acquittal’ and direct, as it
were, a retrial of the accused.
(b) Since the appellant had, in reality, been acquitted
by the Magistrate, he could not be retried on the same
charges because of the double jeopardy of autrefois acquit.
(v) There has been gross laxity and delay on the part
of the prosecution in prosecuting their case and in
producing all their evidence, which is nothing short of
abuse of the process of the Court. the complaint was filed
on April 1, 1961. The order of “discharge” was passed by the
Magistrate on`February 26, 1969, and the aforesaid order
came up for consideration in revision before the High Court
in January 1976. The High Court’s order dated January 21,
1976, directing de novo proceedings against the appellant
after a lapse of several years would be unjust and unfair,
particularly when this delay was attributable to the
prosecution which had, indeed, closed its evidence before
the framing of the charge and its request to examine the
German Witnesses on commission stands declined.
As against this, Shri Soli Sorabji, learned Additional
Solicitor General submits that the appellant (Mithani), in
fact, had never filed any revision against the order of the
Magistrate, framing charges against him and others. It is
pointed out that in Cr.R.A. No. 574 of 1964 filed by Mithani
on July 17, 1964 in the High Court, the challenge was, in
terms, confined to the Magistrate’s order, dated December 6,
1962, whereby he had admitted 9 Verladescheins, Bills of
Lading, invoices etc. into evidence; and that the order
dated December 21, 1962, framing the charges was not
specifically challenged. In any case, Gokhale J. had
summarily rejected Mithani’s Criminal Revision by an order,
dated August 21, 1964. According to Shri Sorabji, the
further observation in that order of Gokhale J. to the
effect that it was open to the Magistrate to consider,
“whether the interlocutory order against which the present
revision application is filed, needs to be reviewed”, was
made only in respect of the Magistrate’s order dated
December 6, 1962 and not the order whereby the charges were
framed. It is further submitted that Gokhale J.’s
observations and directions in his judgment dated August
19/20, 1964 in Cr.R.A. No. 107 of 1964, could not, by any
stretch of imagination, be construed as authorising the
Magistrate to reconsider and delete the charges, and
discharge the accused. On the contrary, the learned Judge
had directed amendment of the charge so that the period of
the conspiracy was not restricted to the period mentioned in
the
1003
charges. It is further submitted that the Magistrate’s order
arbitrarily deleting the charges and “discharging” the
accused, was patently illegal and the High Court was fully
competent and justified to set it aside in the exercise of
its revisional powers under Section 439 of the Code.
As regards delay in the proceedings, Shri Sorabji
submits, it was mostly due to circumstances beyond the
control of the prosecution; that the charge against the
appellant was a grave one and the direction given by the
High Court to take further proceedings, inter alia, against
the appellant was not unjust and unfair.
We are unable to accept any of the contentions advanced
by Shri Shroff.
At the outset, let us have a look at the relevant
provisions of the Code of Criminal Procedure, 1898, which
admittedly governed the pending proceedings in this case.
The procedure for trial of warrant cases by Magistrates is
given in Chapter XXI of that Code. The present case was
instituted on a criminal complaint. Section 252 provides
that in such a case, the Magistrate shall proceed to hear
the complainant (if any) and take all such evidence, as may
be produced, in support of the prosecution. Sub-section (2)
of that Section casts a duty on the Magistrate to ascertain
the names of persons likely to be acquainted with the facts
of the case and to be able to give evidence for the
prosecution, and to summon all such persons for evidence.
Section 253 indicates when and in what circumstances an
accused may be discharged: It says:
“253(1) If, upon taking all the evidence referred
to in Section 252, and making such examination (if any)
of the accused as the Magistrate thinks necessary, he
finds that no case against the accused has been made
out which, if unrebutted, would warrant his conviction,
the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to
prevent a Magistrate from discharging the accused at
any previous stage of the case if, for reasons to be
recorded by such Magistrate, he considers the charge to
be groundless.”
Section 254 indicates when and in what circumstances a
charge should be framed. It reads:
“254 when such evidence and examination have been
taken and made, or at any previous stage of the case,
the
1004
Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence
triable under this Chapter, which such Magistrate is
competent to try, and which in his opinion could be
adequately punished by him, he shall frame in writing a
charge against the accused.”
Section 255 enjoins that the charge shall then be read over
and explained to the accused, and he shall be asked whether
he is guilty or has any defence to make. If the accused
pleads guilty, the Magistrate shall record that plea, and
may convict him thereon.
Section 256 provides that if the accused refuses to
plead or docs not plead, or claims to be tried, he shall be
required to state at the next hearing whether he wishes to
cross-examine any of the witnesses for the prosecution whose
evidence has been taken, and if he says he so wants to
cross-examine, the witnesses named by him shall be recalled
and he will be allowed to further cross-examine them. “The
evidence of any remaining witnesses for the prosecution
shall next be taken” and thereafter the accused shall be
called upon to enter upon and produce his defence.
Section 257 is not material. Section 258(1) provides
that if in any case “in which a charge has been framed the
Magistrate finds the accused not guilty, he shall record an
order of acquittal. Sub section (2) requires, where in any
case under this chapter the Magistrate does not proceed in
accordance with the provisions of Section 349 or Section
562, he shall, if he finds the accused guilty, pass sentence
on him in accordance with law.
From the scheme of the provisions noticed above, it is
clear that in a warrant case instituted otherwise on a
police report, ‘discharge’ or ‘acquittal’ of accused are
distinct concepts applicable to different stages of the
proceedings in Court. The legal effect and incidents of
‘discharge’ and ‘acquittal’ are also different. An order of
discharge in a warrant case instituted on complaint, can be
made only after the process has been issued and before the
charge is framed. Section 253(1) shows that as a general
rule there an be no order of discharge unless the evidence
of all the prosecution witnesses has been taken and he
considers for reasons to be recorded, in the light of the
evidence that no case has been made out. Sub-section (2)
which authorises the Magistrate to discharge the accused at
any previous stage of the case if he considers the charge to
be groundless, is an exception to that rule. A discharge
without considering the evidence taken is illegal. If a
prima facie case is made out the Magistrate
1005
must proceed under Section 254 and frame charge against the
accused. Section 254 shows that a charge, can be framed if
after taking evidence or at any previous stage, the
Magistrate, thinks that there is ground for presuming that
the accused has committed an offence triable as a warrant
case. Once a charge is framed, the Magistrate has no power
under section 227 or any other provision of the Code to
cancel the charge, and reverse the proceedings to the stage
of Section 353 and discharge the accused. The trial in a
warrant case starts with the framing of charge; prior to it,
the proceedings are only an inquiry. After the framing of
charges if the accused pleads not guilty, the Magistrate is
required to proceed with the trial in the manner provided in
section 254 to 258, to a logical end. Once a charge is
framed in a warrant case, instituted either on complaint or
a police report, the Magistrate has no power under the Code
to discharge the accused, and thereafter, he can either
acquit or convict the accused unless he decides to proceed
under Section 349 and 562 of the Code of 1892 (which
correspond to Sections 325 and 360 of the Code of 1973).
Excepting where the prosecution must fail for want of a
fundamental defect, such as want of sanction, an order of
acquittal must be based upon a ‘finding of not guilty’
turning on the merits of the case and the appreciation of
evidence at the conclusion of the trial.
If after framing charges the Magistrate whimsically,
without appraising the evidence and without permitting the
prosecution to produce all its evidence, ‘discharges’ the
accused, such an acquittal, without trial, even if clothed
as ‘discharge’, will be illegal. This is precisely what has
happened in the instant case. Here, the Magistrate, by his
order dated December 12, 1962 framed charges against Mithani
and two others. Subsequently, when on the disposal of the
Revision applications by Gokhale, J. the records were
received back, he arbitrarily deleted those charges and
discharged the accused, without examining the “remaining
witnesses” of the prosecution which he had in the order of
framing charges, said, “will be examined after the charge”.
It is not correct as has been contended on behalf of
Mithani, that in adopting this course the Magistrate was
only acting in accordance with the observations/directions
of Gokhale J. in the judgments disposing of Criminal
Revisions 107/63 and 514 of 1964. A perusal of Gokhale, J’s
orders in these two Revision Applications-material portions
of which have been quoted earlier-will show that there is
nothing in those orders which expressly or by implication
required the Magistrate to delete the charges and
‘discharge’ or acquit the accused.
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On the contrary, the learned High Court Judge (Gokhale J.)
had accepted the Revision filed by the prosecution and
directed the Magistrate to amend the charges in so far as
they appear to restrict the period of conspiracy to the one
between the dates mentioned in the charges. Gokhale J. had
further directed the Magistrate to consider the
circumstantial and other evidence of the prosecution with a
view to frame additional charges as claimed by the
prosecution.
Gokhale J’s judgment in Cr.R.A. 107 shows that the
learned Judge did not hold that the verladesheins or the
other documents in question tendered by the prosecution,
were not relevant at all, under any provision of the
Evidence Act. All that was held by him was that before these
documents could be admitted under Section 32(2) or Section
10 of the Evidence Act, some preliminary facts had to be
established by the prosecution. For instance, one of the
conditions precedent for the admissibility of a previous
statement of a party under Section 32(2) is that the
attendance of the witness who made that statement, could not
be procured without an amount of delay and expense which in
the circumstances of the case, appeared to the Court to be
unreasonable. Similarly, With regard to the invocation of
Section 10, Evidence Act, it was observed that before the
documents concerned could be admitted under Section 10,
Evidence Act, prima facie proof, aliunde should be given
about the existence of the conspiracy. On the contrary,
Gokhale J. clearly held that the documents, in question,
were relevant to the facts in issue, but they had to be
proved in any of the ways recognised by the Evidence Act,
Gokhale J. never quashed the charges already framed by the
Magistrate. It is true that the prosecution in its Special
Leave Petitions 965 and 966 contended that the observations
made by Gokhale J. with regard to the admissibility of
Verladasheins and other documents are of “far reaching
importance and are likely to prejudice the prosecution” and
will affect the future course of the proceedings adversely
to the prosecution. However, apart from these Verladasheins
there was other circumstantial and oral evidence on the
record and more evidence was yet to be produced by the
prosecution after the charge. The prosecution were doing
their best to secure the evidence of German witnesses in
Europe. They want to produce other evidence also, apart from
the Verladasheins, to show a prima facie case of conspiracy
so that in accordance with the guidelines laid down in
Gokhale J’s judgment, they could make out a case for the
admissibility of the Verladasheins under Section 10,
Evidence Act.
A perusal of the copy of the Revision Application No
574/64 filed by Mithani in the High Court, will show that
the only order specifically challenged therein was one dated
December 6, 1962 whereby the
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Magistrate had held that 9 Verladasheins were admissible
under Section 10, Evidence Act, although, incidentally, it
was mentioned that the charges framed as a consequence of
the impugned order dated December 6, 1962, should also be
quashed. Even so, Mithani’s Revision Application (No.
574/64) was summarily rejected by the learned Judge with the
observation that the Magistrate could, in the light of the
observations in the Judgment in Cr.Rev. A. 107 of 1963,
“consider, whether the interlocutory order against which the
present Revision Application is filed needs to be reviewed.”
The crucial part of the observation is that which has been
underlined. It shows that this observation has reference
only to the order dated December 6, 1962 whereby the
Magistrate had held 9 Verladasheins admissible under Section
10. In this observation, the word “order” is used in
singular. It shows that the learned Judge, also, construed
the Revision-petition of Mithani as one directed against the
Magistrate’s order dated December 6, 1962, only. Only that
order of the Magistrate has been exhaustively considered in
the Revision Application 107 of 1964.
It is thus manifest that in abruptly deleting the
charges and ‘discharging’ the accused, the Magistrate was
acting neither in accordance with the observation or
directions of Gokhale J., nor in accordance with law.
Equally meritless, albeit ingenious is the argument
that since the Magistrate had no legal power to delete the
charge the order of ‘discharge’ must be construed as an
order of “acquittal” so that the High Court could not
interfere with it in revision and direct a retrial. Assuming
arguendo, the Magistrate’s order of discharge was an order
of ‘acquittal’, then also, it does not alter the fact that
this ‘acquittal’ was manifestly illegal. It was not passed
on merits, but without any trial, with consequent failure of
justice. The High Court has undoubtedly the power to
interfere with such a patently illegal order of acquittal in
the exercise of its revisional jurisdiction under Section
439, and direct a retrial. The High Court’s order under
appeal, directing to Magistrate to take de novo proceedings
against the accused was not barred by the provisions of
Section 403, (of the Code of 1898), the earlier proceedings
taken by the Magistrate being no trial at all and the order
passed therein being neither a valid “discharge” of the
accused nor their acquittal as contemplated by Section
405(1). The Magistrate’s order (to use the words of
Mudholkar J. in Mohd Safi v. State of West Bengal was merely
“an order putting a stop to these pro-
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ceedings” since the proceedings, ended with that order. The
other contentions of the appellant, have been stated only to
be rejected.
For all the reasons aforesaid, we have no hesitation in
upholding the High Court’s order under appeal, and in
dismissing the appeal. Since the case is very old, the
Magistrate shall proceed with the case with utmost despatch,
if feasible, by holding day to day hearings within six
months from today.
N.V.K. Appeal dismissed.
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