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SCR.A/82720/2003 3/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 827 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SANJAY
THAKOREBHAI PATEL - Applicant(s)
Versus
P
DENIS ENFORCEMENT OFFICER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PRAFUL J BHATT for
Applicant(s) : 1,
MR PURVISH J MALKAN for Respondent(s) : 1 -
2.
MR HL JANI APP for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 20/03/2009
ORAL
JUDGMENT
1. This
petition is directed against the order dated 18.07.2003 passed by the
learned Additional Chief Metropolitan Magistrate, Ahmedabad by
which the application below Exh.8 in Criminal Case No.308 of 2000 was
rejected. It is submitted that the respondent has filed a complaint
on or about 07.03.1996 in the Court of learned Additional Chief
Metropolitan Magistrate, Ahmedabad for the offence punishable under
Sections 9(1)(b) and 9(1)(c) of the Foreign Exchange and Regulation
Act, 1973 (hereinafter referred to as FERA Act). Before filing the
aforesaid complaint, the petitioner was arrested by the officers of
the Enforcement Directorate on 24.01.1995. When he was produced
before the learned Judge, he was released on bail on 07.03.1996 on
condition of depositing the amount of Rs.80,000/- as security. The
aforesaid complaint was adjourned on number of occasions because of
the inaction on the part of the prosecuting agency to produce the
evidence with a view to decide whether the charge can be framed
against the petitioner as contemplated under Sections 242
to 245
of the Code of criminal Procedure, 1973. After the long pendency of
the aforesaid complaint, the complainant filed an application on
20.07.2000 for withdrawal of the said complaint. After hearing the
parties at length, the learned Judge has passed order below Exh.41 as
under:-
Heard Mr.Gupta
complaint want to withdraw this complaint because show cause notice
of being heard was not given and apply for permission of court to
file fresh complaint. But I am of the opinion that court should not
be party to fill up lacuna of complaint. Hence accused is discharged
for the offence alleged against him for want of notice to show cause
u/s. 61 of FERA Act 1973.
However, the
complainant filed fresh complaint on 27.12.2000 for the same offences
for which the earlier complaint had been filed. During the course of
hearing of the said complaint, it was contended by the petitioner
that in view of the order of learned Judge of withdrawal of
the earlier complaint containing an observation that the Court did
not want to allow prosecuting agency to fill up the lacuna left by it
while filing the complaint and in view of the discharge of the
accused, the second complaint could not have been filed. It was also
contended that Section 49(3) of the Act again divides offenders of
Foreign Exchange law into following two categories:-
(1) Those who committed
offence when the Act of 1947 was in force, but against whom, no
criminal case was instituted before the expiry of two years from the
date of coming into force of the Act of 1999 (2) Those offenders
against whom a criminal case is instituted before the expiry of two
years from the coming into force of the new Act of 1999.
However, the learned
Judge was pleased to reject the same by order dated 18.07.2003 which
is under challenge before this Court.
2. The learned advocate
submitted that in view of the earlier order passed by the learned
Judge below Exh.41, second complaint could not be registered and it
would amount to review of the earlier order passed by the learned
Judge. It is also submitted that the learned Judge has not properly
appreciated the fact that the petitioner was put to great harassment
on account of the pendency of the earlier complaint as contended by
him in his application and not dismissing the second complaint on the
ground of violation of Article 21 of the Constitution of India. It is
submitted that in view of the aforesaid facts and circumstances of
the case, the order passed by the learned Judge dated 18.07.2003
below Exh.8 in Criminal Case Non.308 of 2000 be quashed and set
aside. The learned advocate has placed reliance on the judgment in
case of Pramatha Nath Talukdar V/s. Saroj Ranjan Sarkar reported in
AIR 1962 SC 876 in support of the submission that the second
complaint is not maintainable unless there are exceptional
circumstances to entertain the second complaint. The exceptional
circumstances are mentioned as (1) manifest error (2) manifest
miscarriage of justice, and new fact that the complainant had no
knowledge of or could not with reasonable diligence have brought
forward in the previous proceedings. In view of the circumstances
narrated hereinabove no interference is called for in the second
complaint. The learned advocate also placed reliance on the judgment
in case of Bindeshwari Prasad Singh V/s. Kali Singh reported in AIR
1977 SC 2432 wherein, it was held by the Apex Court that there is no
provision in Cr.P.C. empowering a Magistrate to review or recall a
judicial order passed by him. Inherent powers under Section 561-A are
only given to High Court and unlike S.151 of C.P.C. subordinate
criminal courts have no inherent powers. It is also held by the Apex
Court that the second complaint can lie only on new facts or even on
previous facts only if a special case is made out. Thus, the learned
advocate submitted that considering the ratio laid down in the
aforementioned judgments, the petition deserves to be allowed and the
order dated 18.07.2003 passed by the learned Judge below Exh.8 in
Criminal Case No.308 of 2000 be quashed and set aside.
3. The learned advocate,
representing the respondent, submitted that considering the reasoning
given by the learned Judge, no interference is called for in the
order passed by the learned Judge and, as the petition is
misconceived, it is required to be dismissed. The learned advocate
placing reliance on the complaint at Annexure A submitted that the
learned Judge had considered the submissions as well as the judgment
on which reliance was placed by both the sides and, after considering
the submission and giving opportunity to both the sides, passed
reasoned order, dismissing the application below Exh.8. There is no
infirmity or illegality in the order passed by the learned Judge and,
therefore, the petition is devoid of any merit and the same may be
dismissed. The learned advocate has placed reliance on the averments
made in the affidavit-in-reply filed by the respondent and submitted
that the petitioner was discharged from the case not on the basis of
the merits but on technical ground and as the petitioner is trying to
take undue advantage of the earlier order of the learned Judge with a
view to escape from the offence committed by him, the petition, on
that ground, cannot be entertained and deserves to be dismissed. It
is also submitted that in view of the order dated 18.07.2003
rejecting the petitioner’s application for referring the question of
law to the High Court, it was not referred to the High Court and the
application was dismissed.
4. I have heard learned
advocate at length and in great detail. I have also perused the order
passed by the learned Judge below Exh.41 produced at Annexure C to
the petition by which the learned Judge discharged the
petitioner-accused for the offence alleged against him for want of
notice to show-cause under Section 61 of FERA Act, 1973 as well as
the subsequent order passed below Exh.8 in Criminal Case No.308 of
2000 by which prayer in the application for referring the matter to
the High Court was dismissed by the learned Judge on 18.07.2003.
Considering both the orders as well as the provisions of law which
are relied upon by the learned counsel of both the sides, it is
apparent that by passing the order at annexure C, the complainant
wanted to withdraw the complaint because the show-cause notice was
not given and permission was sought to file fresh complaint. However,
the learned Judge passed the order that the Court cannot be a party
to fill up the lacuna of the complaint and, therefore, he discharged
the petitioner-accused for the offence alleged against him for want
of show-cause notice under Section 61 of FERA Act. Thereafter, on
14.12.2000, i.e. after lapse of 5 years, the complaint under Section
56 of the FERA Act was filed against the petitioner for the offence
punishable under Section 9(1)(b) and 9(1)(d) of the Act. However, on
perusal of the complaint, bailable warrant in the sum of Rs.10,000/-
was issued against the present petitioner. The petitioner also filed
detailed reply in August 2000 praying therein to dismiss the
complaint and acquit the petitioner or, in the alternative, to make
reference to the High Court to consider the points raised by the
petitioner in the application and to decide the constitutional
validity of Section 49(3) of the Foreign Exchange Management Act,
1999. However, considering the submissions of both the sides, the
application was dismissed by the learned Judge on 18.07.2003. The
learned Judge, in my view, has not narrated exceptional circumstances
or extraordinary grounds which would warrant entertainment of
subsequent complaint filed after lapse of 5 years. Even, the
department has not explained the delay of 5 years caused in filing
the subsequent complaint. On perusal of the order passed below
Exh.41, it becomes clear that the petitioner was discharged for the
offence alleged against him for want of show-cause notice under
Section 61 of FERA Act. Thereafter, the subsequent complaint cannot
be filed with a view to rake up the same issue before the
learned Judge, as it would amount to review of the earlier
order or reconsideration of the order passed by the learned
Judge which is produced at Annexure – C to the present case.
5. For the foregoing
reasons, the petition is allowed and order dated 18.07.2003 passed by
the learned Additional Chief Metropolitan Magistrate, Ahmedabad below
Exh.8 in Criminal Case No.308 of 2000 is hereby quashed and set
aside.
(H.B.ANTANI,
J.)
Hitesh
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