ORDER
1. This Criminal Revision Application is directed against the Order dated June 30, 1983, in Case No. 40/CW/1983 and Case No. 4/Misc. of 1983, passed by the Chief Metropolitan Magistrate, Esplanade, Bombay.
2. The learned trial Magistrate has precisely and correctly narrated the facts of two complaints lodged by the Customs Department in his Court. I may only briefly refer to few dates which are necessary to appreciate the rival contentions raised before me in this Revision Applications. On February 21, 1982, the Assistant Collector of Customs, Bombay, filed a complaint bearing Case No. 40/CS/1983 under S. 120B, I.P.C. S. 135(f)(b)(ii) of the Customs Act and S. 5 of the Imports and Exports (Control) Act. This complaint was filed against six accused persons. It is alleged in that complaint, that accused No. 1 – Respondent No. 1 Razak Kasim Narkar, a South African national was about to leave for Salisbury by air and upon examination of his baggage it disclosed 2 lac tablets of Mandrex valued at Rs. 2,00,000/- and some foreign exchange. It is then alleged that the accused No. 1 was not having requisite permission to export these articles and, therefore, these articles came to be seized under a panchanama. After carrying out the necessary investigation, the aforesaid criminal complaint came to be filed against these six accused persons. The accused No. 1 was released on bail by the trial Magistrate on February 21, 1982. The Customs Department then examined two witnesses before the charge. Last witness was examined on. May 11, 1983. At this stage Customs department prima facie opined that the complaint suffers from some defects and those defects need to be cured. The Customs Department, therefore, took the decision to file another complaint, and accordingly, on June 17, 1983, second complaint on the same facts came to be filed in the Court of Chief Metropolitan Magistrate, Bombay. The said case is numbered as 4/Misc. of 1983. Second complaint is filed by the Customs Department only against the three accused persons who are original accused Nos. 1, 5 and 6 in Case No. 40/CW 1983. This new complaint is filed for the offences punishable under S. 120, I.P.C. and S. 135(1)(b)(ii) of the Customs Act read with S. 5 of the Imports and Exports Act. The learned trial Magistrate has considered We allegations contained in both these complaints in his Judgment and I do not think, it is necessary to reproduce the same in this Judgment. The difficulty that arose before the learned trial Magistrate was in connection with taking congnizance of the second complaint when the first complaint bearing Case No. 40/CW/1983 is still alive and in which process has already been issued and the said case is at the stage of framing of the charge. The Customs Department in its second complaint has made a reference to the pendency of the first complaint. It also recites the necessity of filing of this second complaint. The second complaint bearing No. 4/Misc. of 1983 was placed before the Chief Metropolitan Magistrate for taking congnizance. The Magistrate upon perusing the contents of the second complaint opined that unless the first complaint is disposed of, the cognizance of the second complaint including the issuance of the process cannot be considered. In view of this conclusion, the learned trial Magistrate passed the following order :
“Issuance of process on the complaint in Case No. 4/Misc. of 1983 would be considered only after the disposal of Case No. 40/CW/1983. Case No. 40/CW/1983 to continue.”
It is this Order passed by the learned Chief Metropolitan Magistrate, is the subject-matter of this Revision Application.
3. Shri A. R. Gupte, the learned Advocate appearing for the Complainant Customs Department in support of this Revision Application urged that the order passed by the trial Magistrate suffers from vice of failure to exercise the jurisdiction vested in him by not considering and/or taking cognizance of the second complaint filed by the Customs Department. Shri Gupte then urged that since the Customs Department prima facie opined that there are some defects in the first complaint and in order to cure those defects, the second complaint has been filed in accordance with law. He also submitted that moment the learned trial Magistrate takes the cognizance and issues the process in the second complaint, necessary orders will be obtained in regard to the first complaint for dropping the same. The main apprehension presented before me by the learned Counsel is that at this stage if the first complaint is withdrawn and/or dropped against the accused and if the learned trial Magistrate refuses to take the congnizance and/or to issue process in the second complaint then the alleged offence of the accused would go untried and unpunished. Having regard to the nature of offence and the complicity of the accused, the learned Counsel submitted that the learned trial Magistrate ought to have taken congnizance of the second complaint and he ought to have passed the orders on merits. Shri R. G. Matadar, learned Counsel appearing on behalf of the accused urged that the order passed by the learned trial Magistrate is right in as much as if the Customs Department had noticed defects in their first complaint, then it was expected on their part to drop that complaint and take such necessary steps as they deem fit and permissible under law and they cannot ask for a conditional order on the second complaint from the Court. In this connection, Shri Matadar strongly urged that the accused No. 1 is a foreign national and has been put to great harassment inasmuch as he is made to face several proceedings in India. He also urged that the accused No. 1 is very keen to go to his place of residence in South Africa and because of this criminal proceedings he is unable to go to his place. He also made a grievance about the execution of the bail bonds that will be required to execute in case the trial Magistrate takes the cognizance of the second complaint and issues the process. With the assistance of the learned Counsel, I have gone through the Judgment of the trial Magistrate as well as the relevant papers. Both the learned counsel were unable to point out any provision under the Code of Criminal Procedure which prohibits filing of the second complaint on the same set of facts and/or taking the congnizance of the same by the learned trial Magistrate. The only prohibition that could be spelt out is the one contained in Art. 20(2) of the Constitution. The provision reads as under :
“20. (2) No person shall be prosecuted and punished for the same offence more than once.
The prohibition therefore, is in connection with the prosecution and punishment for the offence more than once. In the present case, having regard to the nature of stages at which these two criminal cases are pending, it cannot be said that the provision of Clause (2) of Art. 20 of the Constitution would be attracted. A somewhat similar question fell for consideration before Delhi High Court in R. P. Kapur v. Delhi Development Authority 1976 Cri. LJ 1285. The Delhi Development Authority in that case has filed separate complaints against each of the petitioners under S. 29(2) read with S. 14 of the Act. While considering the maintainability of the two complaints for the same offences on the touchstone of Clause (2) of Art. 20 of the Constitution, Delhi High Court for its conclusion relied upon the judgment of the Supreme Court in S. A. Venkataraman v. Union of India . Delhi High Court has held as follows (At p. 1292 of Cri LJ) :
“Therefore, even if we assume for a moment that the first petitioner is being prosecuted in two cases for the same offence, such a prosecution itself is not vitiated. What is prohibited by Art. 20(2) is his punishment in both the cases. In this connection, it is pointed out on behalf of the DDA that both the complaints filed against the first petitioner being tried together and that there was an offer made by the DDA at one stage to withdraw one of the complaints which was, however, opposed by the first petitioner himself. We have no doubt that the learned Magistrate will take note of the provisions of Art. 20(2) of the Constitution in dealing with these cases against the first petitioner.”
Thus, in my opinion, the learned Magistrate ought to have taken the cognizance of the second complaint filed by the Customs Department and would have passed the appropriate orders in accordance with law.
4. Coming to the second argument of Shri Matadar that the accused No. 1 and other accused persons will be put to harassment if second complaint is entertained and process is issued, he urged that each of the accused will have to give fresh personal bond and/or furnish the security. In addition to this, he also urged that the alleged offence took place as back as on 1st January 1982 and more than two years have passed yet it has not seen the light of the trial. For all these two years, accused No. 1 as well as the other accused persons have suffered a great harassment and the same will be perpetuated if the cognizance of the second complaint is taken by the trial Magistrate. I see some force in this argument of Shri Matadar and there would be undoubtedly some hardship to the accused persons who will have to undergo ordeal of fresh security etc. if they are released on bail upon taking cognizance of the second complaint and if the process is issued against them. This aspect, however, cannot affect the right of the complainant to file second complaint and pray for taking cognizance and take further action in that behalf in accordance with law.
5. Shri Matadar then drew my attention to the judgment of Rajasthan High Court in Assandas v. Nathrimal 1954 Cri LJ 1234 (Ajmer). It is true that learned Judge of the Ajmer Court held that the second complaint is not maintainable but however, I do not agree with the said judgment. I prefer to rely upon the Judgment of the Delhi High Court (Division Bench) which I have referred hereinabove. The learned Magistrate is thus directed to consider the second complaint No. 4/Misc. of 1983 on merits and pass appropriate orders thereon. The petition succeeds. The impugned order dated June 30, 1983 is quashed and set aside the matter is remitted back to the trial Magistrate for further orders in Case No. 4/Misc. of 1983 in accordance with law. Rule is made absolute.
6. Petition allowed.