{"id":89141,"date":"1978-09-28T00:00:00","date_gmt":"1978-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ratilal-bhanji-mithani-vs-the-state-of-maharashtra-ors-on-28-september-1978"},"modified":"2015-03-20T20:07:19","modified_gmt":"2015-03-20T14:37:19","slug":"ratilal-bhanji-mithani-vs-the-state-of-maharashtra-ors-on-28-september-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ratilal-bhanji-mithani-vs-the-state-of-maharashtra-ors-on-28-september-1978","title":{"rendered":"Ratilal Bhanji Mithani vs The State Of Maharashtra & Ors on 28 September, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ratilal Bhanji Mithani vs The State Of Maharashtra & Ors on 28 September, 1978<\/div>\n
Equivalent citations: 1979 AIR 94, \t\t 1979 SCR (1) 993<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nRATILAL BHANJI MITHANI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MAHARASHTRA & ORS.\n\nDATE OF JUDGMENT28\/09\/1978\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nREDDY, O. CHINNAPPA (J)\nSEN, A.P. (J)\n\nCITATION:\n 1979 AIR   94\t\t  1979 SCR  (1) 993\n 1979 SCC  (2) 179\n\n\nACT:\n     Code of  Criminal Procedure  1898, (5  of\t1898)-Charge\nframed-Whether Magistrate has power to cancel the charge and\ndischarge the accused.\n     'Discharge'    and\t    'Acquittal'-Distinct    concepts\napplicable to different stages of proceedings.\n\n\n\nHEADNOTE:\n     The appellant  and six  others were  charged  with\t the\noffence of entering into criminal conspiracy, with intent to\ndefraud the  Government\t of  the  duty\tpayable\t on  various\ncontraband goods, etc. and thereby committing offences under\ns. 120B\t I.P.C.. read with 6. 167(81) of the Sea Customs Act\n1878 and s. 5 of the Import and Exports Act 1947.\n     The  prosecution  alleged\tthat  is  a  result  of\t the\ncriminal conspiracy  twenty-four consignments  of goods came\nfrom abroad  and were  received in Bombay and it is the case\nof  the\t prosecution  that  it\thas  in\t its  possession  10\nverladescheins (called\tas 'mate  sheets' or receipts) which\ngive the  description of  the contraband goods. Out of there\n10 verladescheins, 2 relate to consignments of two firms for\nwhich the appellant held powers-of-Attorney.\n     The Trial\tMagistrate  held  that\t10  out\t of  the  20\nVerladescheins were  inadmissible either  under the Evidence\nAct or\tunder the Commercial Documents Evidence Act 1939 and\nthat 9 out of the 10 Verledescheins were admissible under s.\n10 of  the Evidence Act. He also excluded some other letters\nand correspondence on the ground that they could not be said\nto have been written in furtherance of the conspiracy .\n     On the  basis of  the evidence recorded, the Magistrate\nframed charges against the appellant and the co-accused.\n     The prosecution as well as the appellant filed revision\napplications in\t the High  Court. A single Judge of the High\nCourt held  that the Magistrate will have to consider afresh\nwhether the  documents, which he had admitted under 6. 32 or\ns. 10  of the  Evidence Act  were admissible or not and also\nconsider  whether  it  was  necessary  to  frame  additional\ncharges.\n     After  this  order,  the  Additional  Chief  Presidency\nMagistrate discharged  the accused on the grounds that since\nno overt  act was  proved against  the appellant and certain\nother accused  no consideration\t can be\t inferred as against\nthem.\n     A Division Bench of the High Court allowed the revision\npetition  filed\t  by  the  prosecution\tand  held  that\t the\nMagistrate had no legal power to discharge the accused after\nframing the charge.\n     In the  appeal to this Court it was contended on behalf\nof the\tappellant that\tin passing  the impugned  order, the\nMagistrate  was\t  simply  acting   in  consonance  with\t the\nobservations and  implied directions  contained in the order\nof the High Court.\n994\n     Dismissing the appeal,\n^\n     HELD: 1.  From the\t scheme of the\tprovisions contained\nin ss.\t252 to\t57 given  in Chapter  XXI  of  the  Code  of\nCriminal Procedure  1898. it is clear that in a warrant case\ninstituted otherwise  on a  police  report,  'discharge'  or\n'acquittal of  accused are  distinct concepts  applicable to\ndifferent stages  of the proceedings in the Court. The legal\neffect and incidents of `discharge' and 'acquittal' are also\ndifferent.  An\t order\tof   discharge\tin  a  warrant\tcase\ninstituted on  complaint can  be made only after the process\nhas been issued and before the charge is framed. A discharge\nwithout considering  the evidence  taken is  illegal.  If  a\nprima facie  case is  made out\tthe Magistrate\tmust proceed\nunder s. 254 and frame charge against the accused. The trial\nin a  warrant cause starts with the framing of charge; prior\nto it the proceedings are only an inquiry. After the framing\nof charges  if the  accused pleads guilty, the Magistrate is\nrequired to proceed with the trial in the manner provided in\ns. 254 to 258 to a logical end. Once a charge is framed, the\nMagistrate has no power to cancel the charge and reverse the\nproceedings to\tthe  stage  of\ts.  353\t and  discharge\t the\naccused. [1004 F-G, 1004H 1005 A-B]\n     2. After  a charge\t is framed,  the Magistrate  has  no\npower under  the Code\tto  discharge the  accused.  He\t can\neither acquit  or convict  the accused\tunless he decides to\nproceed under  ss. 349\tand 562\t of the\t Code of 1898 (which\ncorresponds to\tsections 325  and 360  of the Code of 1973).\nException   where the  prosecution must\t fail for  want of a\nfundamental defect,  such as  want of  sanction, an order of\nacquittal must\tbe based  upon a  'finding  of\tnot  guilty'\nturning on  the merits\tof the\tcase and the appreciation of\nevidence at the conclusion of the trial. [1005 C-D]\n     3. If  after framing charge the Magistrate whimsically,\nwithout appraising  the evidence  and without permitting the\nprosecution produce all its evidence, 'acquits' the accused,\nsuch  an   acquittal,  without\ttrial  even  if\t clothed  as\n'discharge' will be illegal. [1005 E]\n     4. In  the instant\t case the Magistrate framing charges\nagainst the  appellant. On  the\t disposal  of  the  revision\napplication  be\t  arbitrarily  deleted\t those\tcharges\t and\n'discharged' the  accused without  examining  the  remaining\nprosecution witnesses. [1005 F]\n     5.\t Assuming   arguendo,  the   Magistrate's  order  of\ndischarge was  on order\t of 'acquittal'\t then also,  it\t was\nmanifestly illegal. It was not passed on merits, but without\nany trial,  with consequent  failure of\t Justice.  The\tHigh\nCourt has  undoubtedly the  power to  interfere with  such a\npatently illegal  order in  the exercise  of its  revisional\njurisdiction under s. 439 and direct a retrial. Such retrial\nwill not  be barred by the provisions of s. 403 (of the Code\nof 1898),  the earlier\tproceedings taken  by the Magistrate\nbeing no  trial at  all and  the order\tpassed therein being\nneither\t a  valid  'discharge'\tof  the\t accused  nor  their\nacquittal as contemplated by s. 405(1). [1007 F-H]\n     Mohd. Safi\t  v.  State of\tWest Bengal  AIR 1966  SC 69\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL\tAPPELLATE JURISDICTION : Criminal Appeal No.
\n95 of 1 977.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated 21-1-76  of the Bombay High Court in Criminal Revision
\nApplication No. 565 of 1969.\n<\/p>\n
995<\/span><\/p>\n
     I.N. Shroff and H.S. Parihar for the Appellant.
\n     Soli J.  Sorabjee, Addl.  Sol. Genl (for Respondent No.\n<\/p>\n
2), K.N.  Bhat, H.R.  Khanna, M.N.  Sroff and Girish Chandra
\nfor Respondents Nos. 1 and 2.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SARKARIA, J.-This\tappeal by  special leave is directed
\nagainst a  judgment, dated  January 21,\t 1976, of  the\tHigh
\nCourt  of   Judicature\tat   Bombay  in\t  Criminal  Revision
\nApplication No.\t 565 of 1969, whereby it set aside an order,
\ndated February\t26, 1969, of the Chief Presidency Magistrate
\nand directed the latter to restore Case No. 244\/C.W. of 1968
\nagainst the accused persons, excepting accused No. 7 (who is
\nsince dead)  for being\tdealt  with  in\t the  light  of\t the
\nobservations made therein.\n<\/p>\n
     The case  was originally instituted on April 1, 1961 on
\nthe basis  of a\t criminal complaint  filed by  the Assistant
\nCollector (Customs)  in the  Court of  the Chief  Presidency
\nMagistrate,  Esplanade,\t  Bombay.  It\tis  alleged  in\t the
\ncomplaint that\tbetween August 1957 and March 1960, offences
\nunder Section  120-B, I.P.S.,  read with  Section 167(81) of
\nthe Sea\t Customs Act, 1978, and Section 5 of the Imports and
\nExports Act,  1947, were  committed by one Ramlal Laxmidutta
\nNanda and  seven others,  including the\t appellant,  who  is
\naccused No.  2 in  the Trial Court. Ramlal Laxmidutta Nandas
\nwas  alleged  to  be  the  principle  culprit.\tHe  died  on
\nSeptember 15, 1960. As a result of a conspiracy, twenty-four
\nconsignments of\t goods came from abroad and were received in
\nBombay. The  conspiracy was  carried out  in this  manner by
\nsteamer, two consignments hearing similar marks would arrive
\nsuch  as   M.T.S.  M.I.S.  marked  in  triangle.  The  first
\nconsignment would  contain the\tgenuine goods and the second
\nconsignment would  contain less\t number of  cases  than\t the
\nfirst consignment.  The documents would arrive for the first
\nconsignment. With  the help of the documents for the genuine
\ngoods, the  Customs examination\t would be  carried out,\t and
\nthen  at   the\ttime   of  removing  the  real\tconsignment,
\ncontraband  consignment\t  plus\tone   case  of\tthe  genuine
\nconsignment would he removed. Remaining goods of the genuine
\nconsignments  with  their  marks  tampered,  would  be\tleft
\nunattended in  the docks. Out of the 24 consignments brought
\ninto India,  the last  four were  seized by the Customs. The
\nappellant Mithani was not linked with any of those four. But
\nwith  regard   to  the\t remaining  8\tout  of\t the  twenty
\nconsignments the  prosecution alleges  that it\thas  in\t its
\npossession 10  Verladescheins (called  as  ‘mate  sheets  or
\nreceipts’) which  give the  description\t of  the  contraband
\ngoods. Out of these 10 Verladescheins.\n<\/p>\n
996<\/span><\/p>\n
2 relate  to consignments  in the name of Suresh Trading Co.
\nand Dee\t Deepak &  Co. From  the proprietors  of  these\t two
\nfirms, the appellant Mithani held Powers of Attorney.\n<\/p>\n
     Mithani was  arrested and\tbailed out  on May 11, 1960.
\nBetween\t March\t1962  and  December  1962,  the\t prosecution
\nexamined about\t200 witnesses before the Magistrate, but had
\nnot yet\t examined any  witness in  regard to  any of  the 10
\nVerladescheins.\n<\/p>\n
     The  complainant  made  an\t application  to  the  trial
\nmagistrate, requesting\thim to\tget on\trecord a  number  of
\ndocuments  falling   into   these   categories,\t  viz.\t (1)
\nVerladescheins (Mate’s\treceipts),  (2)\t the  correspondence
\nthat passed  between Shaw Wallace & Co. and their principals
\nand agents  abroad and\talso the  correspondence that passed
\nbetween the  other shipping  agents  in\t Bombay\t with  their
\nprincipals, and\t (3) the  documents concerning\tthe  Company
\nknown as C.C.E.I. at Zurich.\n<\/p>\n
     By an order, dated August 24, 1962, the Magistrate held
\nthat 10\t out of\t the  20  Verladescheins  were\tinadmissible
\neither under  the  Evidence  Act  or  under  the  Commercial
\nDocuments  Evidence   Act  1939.  By  another  order,  dated
\nDecember 6,  1962, the\tMagistrate held that 9 out of the 10
\nVerladescheins were  admissible\t under\tSection\t 10  of\t the
\nEvidence Act.  Some other  letters and\tcorrespondence\twere
\nalso excluded  on the  ground that they could not be said to
\nhave been  written in furtherance of the conspiracy.\n<\/p>\n
     On December  12, 1962,  the Magistrate  found  that  no
\nother  witness\t for  the   prosecution\t was   present.\t He,
\ntherefore, passed this order
\n\t  “None of  the witnesses  are present.\t The case is
\n     very old.\tThere is  enough evidence for the purpose of
\n     charge  and   about   200\t witnesses   are   examined.
\n     Prosecution may  examine all  witnesses  as  they\tdeem
\n     proper after  the charge.\tProsecution closes its case.
\n     Accused statement recorded. Adjourned for arguments for
\n     charge to 13.12.1962.”\n<\/p>\n
     The Magistrate  then heard the arguments and thereafter
\non December  21, 1962,\ton the basis of the evidence already
\nrecorded, framed  charges against  Mithani  and\t his  6\t co-
\naccused. Under the first charge, Mithani (accused No. 2) was
\njointly charged\t with Accused  1, 3,  4, 5,  6\tand  7\twith
\ncriminal conspiracy  between September\t1957 and February 1,
\n1960 or thereabout, with intent to defraud the Government of
\nIndia of the duty payable on various contraband goods and to
\nevade the  prohibition\tand  restrictions  imposed  relating
\nthereto\t for  acquiring\t possession  of\t large\tquantity  of
\ncontraband goods  etc. It  was specifically  recited in\t the
\ncharge that accused No. 2 was. at the relevant time,
\n997<\/span>
\npartner of Shanti Lal and Chagan Lal & Co., Bombay, and also
\nconstituted Attorney  of Suresh\t Trading Co.,  Dee Deepak  &
\nCo., New  Delhi, and  also of  Eastern Trading\tCorporation,
\nBombay and had an interest in all these three concerns.\n<\/p>\n
     On\t February   19,\t 1963,\t the  State  filed  Criminal
\nRevisions Application  No. 107\tof 1963\t in the\t High  Court
\nagainst the  orders dated  August 24,  1962 and\t December 6,
\n1962 of\t the Magistrate,  whereby the  latter had refused to
\nadmit 11  Verladescheins out  of 20  in evidence. The State,
\nalso, made a grievance against the failure of the Magistrate
\nto frame  charges in  respect of certain alleged acts of the
\naccused. It  was contended  that the  Magistrate had  unduly
\ncurtailed the  period of  conspiracy,  while,  the  evidence
\nbrought on  the record\tby the\tProsecution showed that this
\nperiod was  longer than\t what the  Magistrate had taken into
\naccount.\n<\/p>\n
     On\t July\t17,  1964,  Mithani,  also,  filed  Criminal
\nRevision No.  574 of 1964 in the High Court, challenging the
\nMagistrate’s order,  dated December  6, 1962, whereby he had
\nadmitted 9  Verladescheins, Bills  of Lading, Invoices etc.,
\ninto evidence.\tIt  was\t further  alleged  in  the  Revision
\nPetition: “It  ought to\t have been  appreciated that all the
\nVerladescheins,\t Invoices   and\t Bills\t of   Lading   being
\ninadmissible, there  is no  evidence left  on record to make
\neven  a\t prima\tfacie  case  against  the  petitioner.”\t The
\nRevision petitioner,  inter alia,  prayed “that the order of
\nthe learned  Magistrate dated December 6, 1962, in so far as
\nit is  against the petitioner, and the charges framed by the
\nlearned Magistrate  against the petitioner, be set aside and
\nhe be discharged from the case.”\n<\/p>\n
     Revision Application  No. 107 by the State was heard by
\nMr. Justice  H.R. Gokhale  (as he  then was)  on August\t 19,
\n1964. It  was contended\t there on  behalf of the prosecution
\nthat all  the  Verladescheins  were  straightway  admissible
\nunder sub-section  (2) of Section 32, Evidence Act. Gokhale,
\nJ. Held\t that since the preliminary condition set out in the
\nprefatory part\tof Section 32, (Viz., that the persons whose
\nstatements are\tsought to  be admitted\tunder Section 32 are
\nsuch that  their attendance  cannot be\tprocured without  an
\namount of delay or expense, which under the circumstances of
\nthe case,  may appear  to the  Court to be unreasonable, had
\nnot been  satisfied these  Verladescheins  (Mates  receipts)
\nwould not  be admissible  under Section 32. In view of this,
\nfinding the  learned Judge  felt that “it really does not be
\ncome necessary\tto consider  that these\t Verladescheins were
\nnot prepared  in  the  ordinary\t course\t of  business”.\t The
\nlearned Judge  was careful  enough to  caution:\t “I  am\t not
\nsuggesting that\t for the  reasons all  these  documents\t are
\nfalse.” Indeed, he conceded that they may be
\n998<\/span>
\nrelevant  to   the  facts  in  issue,  and  added:  “If\t the
\nprosecution desires  to rely  upon  the\t evidence  of  these
\ndocuments the  prosecution certainly  will  be\tentitled  to
\nprove them or to prove the correctness of the description of
\nthe document  in the  ordinary way  without having report to
\nthe exception contained in Section 32.”\n<\/p>\n
     As regards\t the question  whether these  Verladescheins
\nwere admissible\t under Section\t10, the\t learned Judge\theld
\nthat “before considering this question, it would be wrong to
\nlook at\t these very  documents the admissibility of which is
\nin dispute”, and that “such a conclusion can be reached from
\nevidence, documentary,\toral or\t circumstantial,  but  apart
\nfrom the  disputed document  itself. It does not appear from
\nthe order  of the  learned Magistrate  that  there  was\t any
\nindependent material  from which  he had  formed the opinion
\nthat two or more persons had conspired together to commit an
\noffence.” The  learned Judge  significantly added: “If there
\nis any\tsuch material  or if  the prosecution  leads further
\nevidence and  if such  material is  brought on\trecord,\t the
\nlearned\t Magistrate  will,  at\tthe  appropriate  stage,  be
\nentitled to take this material into consideration and decide
\nwhether these  documents can be admitted under Section 10 of
\nthe Evidence  Act.” The\t learned Judge pointed out that this
\ncould include  an attempt  to take  out the  goods. In\tthis
\nconnection he  observed: “If  apart from the question of the
\nperiod during  which the  conspiracy extended  they are\t not
\nadmissible in evidence, because other conditions required to
\nbe satisfied  under Section 10 are not satisfied, then it is
\nanother matter. But I cannot accept his conclusion that they
\nwould not  be so admissible, because they do not fall within
\nthe period  of conspiracy.”  The learned Judge concluded: “I
\nhave no\t doubt that  the learned  Magistrate  will  have  to
\nconsider afresh whether the documents, which he has admitted
\nunder Section 32 or Section 10 are admissible or not. In any
\ncase,  the   order  which  he  has  made  admitting  certain
\ndocuments  under   Section  10\t or  Section   32   was\t  an
\ninterlocutory order  and  the  learned\tMagistrate  will  be
\nentitled to  reconsider the  position in  the light  of\t the
\nobservations in this judgment. The learned Magistrate on the
\nlight of  the view  which I  have taken,  will also consider
\nwhether it  is necessary  to frame additional charges and to
\npass an appropriate order.”\n<\/p>\n
     The Revision  Application No.  574 of  1964,  filed  by
\nMithani, was  rejected by a separate order, dated August 21,
\n1964 on\t the ground that in the view which the learned Judge
\nhad taken in Criminal Revision
\n999<\/span>
\nNo. 107 of 1963, it was not necessary to admit this Revision
\nApplication. It\t was, however,\tobserved that the Magistrate
\nwill  take   the  observations\t in   that   judgment\tinto
\nconsideration and consider “whether the interlocutory order,
\nagainst which  the present  Revision Application  is  filed,
\nneeds to be reviewed.”\n<\/p>\n
     The prosecution  filed Special Leave Petitions (965 and
\n966 of\t1965) in  this Court  against  the  judgment,  dated
\nAugust 19\/20,  1964 of\tMr. Justice Gokhale, and against the
\nHigh Court’s order refusing to grant certificate of fitness.
\nThis Court  on January\t27, 1966,  summarily dismissed\tboth
\nthese petitions. The prosecution then made an application to
\nthe Magistrate\tto take\t some photostat\t copies\t of  certain
\ndocuments. The\tMagistrate granted this application. Accused
\n1 challenged this order of the Magistrate in the High Court.
\nBy  its\t order,\t dated\tOctober\t 4,  1966,  the\t High  Court
\nrestricted the\ttime to\t prosecution  by  three\t months\t for
\ncalling the  Foreign Witnesses.\t After\texpiration  of\tthis
\nperiod,\t the  prosecution  on  January\t11,  1967  filed  an
\napplication in\tthe High Court for cancellation of Mithani`s
\nbail on\t the ground that he was tampering with the witnesses
\nand abusing  the liberty  granted to  him.  The\t High  Court
\ncancelled Mithani’s  bail and  Mithani surrendered  and\t was
\ncommitted to  jail custody on January 13, 1967. Mithani came
\nby special  leave against  the order cancelling his bail, to
\nthis Court  By order dated May 4, 1967, This Court dismissed
\nMithani’s appeal,  but restricted the time for examining the
\nGerman Witnesses  cited by  the prosecution  upto  June\t 26,
\n1967. Since  there was\tdelay in procuring the attendance of
\nGerman\tWitnesses  within  the\ttime  granted,\tMithani\t was
\nreleased on  bail by  an order\tdated July  26, 1967 of this
\nCourt. Thereafter, the prosecution applied to the Magistrate
\nto proceed with the case without the Foreign Witnesses.\n<\/p>\n
     On July  10,  1967,  the  prosecution  applied  to\t the
\nMagistrate for\tissue of  commission for  examination of the
\nGerman\tWitnesses  at  Hamburg\tor  Berlin  or\tLondon.\t The
\nMagistrate rejected  this application  by  his\torder  dated
\nAugust\t8,   1967.  Against   the  Magistrate’s\t order,\t the
\nprosecution, again,  went in  revision to  the\tHigh  Court,
\nwhich rejected\tthe same  by an\t order in  September,  1967.
\nAnother revision  petition filed  in the  High Court  by the
\nprosecution was\t dismissed by  the High\t Court (V.S. Desai &
\nWagle JJ) by an order dated August 9, 1968.\n<\/p>\n
     On\t December   2,\t1968,\tthe  prosecution   made\t  an
\napplication for examining a number of witnesses to establish
\nthe preliminary facts for admission of the Verladasheins and
\nother documents\t under\tSections  32(2)(3)  and\t 10  of\t the
\nEvidence Act  and under\t the Commercial\t Documents Act.\t The
\nMagistrate rejected  that application  by  his\torder  dated
\nJanuary 9, 1969.\n<\/p>\n
1000<\/span><\/p>\n
     By an  order dated\t February 26,  1969, the  Additional
\nChief Presidency  Magistrate, deleted charges 2 to 9 against
\nAccused 2  (Mithani), 3\t and 7,\t and ‘discharged’  them. The
\nfollowing extract from the Magistrate’s order will be useful
\nto appreciate its true nature:\n<\/p>\n
\t  “I therefore\thold that  with regard to overt acts
\n     in charges\t Nos 2 to 9 no charges can be framed against
\n     any of  the accused  and therefore\t charges Nos. 2 to 9
\n     will stand deleted.\n<\/p><\/blockquote>\n
\t  Accused Nos. 2, 3 and 7 are concerned only in some
\n     of the  charges Nos.  2 to 9. They are not concerned in
\n     charges Nos. 10, 11, 12 and 13.\n<\/p><\/blockquote>\n
\t  Therefore as\tno overt  act is held proved against
\n     them no  conspiracy can be inferred as against them and
\n     therefore charge  No. 1  of conspiracy  as against them
\n     must go.\n<\/p><\/blockquote>\n
\t  Therefore with regard to accused Nos. 2, 3 and 7 I
\n     hold that\tno case\t is made  out  against\tthem  and  I
\n     therefore hold  them not  guilty u\/s 167 r.w. 81 of the
\n     Customs  Act  for\tcontravention  of  Import  &  Export
\n     Control Act  1947 and 1955 and for conspiracy and order
\n     them to be discharged.”<\/p><\/blockquote>\n
     Against the  Magistrate’s\torder,\tdated  February\t 26,
\n1969, the  prosecution filed  Criminal Revision\t Application
\nNo. 565 of 1969 in the High Court.\n<\/p>\n
     By its  judgment dated December 16\/17, 1969, a Bench of
\nthe High  Court (consisting of\tVaidya and Rege JJ.) allowed
\nCriminal Revision  565 of 1969 mainly on the ground that the
\nMagistrate after  framing the  charge, had no legal power to
\ndischarge the  accused persons.\t It was\t observed that\t“the
\nentire complexion  of the  cases changed  on account  of the
\nretirement of  the Magistrate.\tThe new\t Magistrate who will
\nhear the matter, will have to find out whether he must alter
\nor vary\t the charge  and for  that purpose  to issue a fresh
\nprocess to the two living deleted accused, after taking into
\nconsideration the  evidence already  recorded by  the former
\nMagistrate…. and such other evidence he may have to record
\nhereafter.” The\t High Court concluded: “We are setting aside
\nthe order  of discharge on the ground that it is open to the
\nnew Magistrate to frame a charge against the deleted accused
\non considering the material; and also on the ground that the
\nformer Magistrate  had no  power to  discharge\tthe  accused
\nafter framing  the charge.”  The High Court further observed
\nthat, “whatever\t submissions the  accused want\tto make with
\nregard to not framing the charges are also open to them.” At
\nthat stage,  they did  not want\t and could  not consider the
\nevidence before the Magistrate. In the
\n1001<\/span>
\nresult, the  order dated February 26, 1969 of the Magistrate
\nwas set\t aside and  the case was restored to the file of the
\nMagistrate, except with regard to the deceased accused No. 7
\nfor being  dealt with  as early\t as possible,  in accordance
\nwith law  and in  the light  of the observations made by the
\nHigh Court.\n<\/p>\n
     Against this order, dated January 21, 1976, of the High
\nCourt setting aside the order dated February 26, 1969 of the
\nMagistrate discharging\tthe accused, the accused 2 (Mithani)
\nhas come in appeal before us.\n<\/p>\n
     The points\t canvassed  by\tShri  I.N.  Shroff,  learned
\ncounsel for the appellant, may be summarised as under:\n<\/p>\n
     (i) In  passing the then impugned order, the Magistrate
\nwas simply  acting in  consonance with\tthe observation\t and
\nimplied directions  contained in  the judgment, dated August
\n19\/20, 1964, of Mr. Justice H.R. Gokhale in Cr. R.A. No. 107
\nof 1964.  On the  contrary, the\t Bench\tof  the\t High  Court
\n(consisting of Vaidya and Rege JJ) has failed in its duty to
\nuphold the  aforesaid judgment\taf Mr. Justice Gokhale-which
\njudgment had  been upheld  by this  Court  while  dismissing
\nprosecution’s Special  Leave Petitions\t965 and 966 of 1975.
\nMr. Justice. Gokhale-so proceeds the argument-had held “that
\n10 Verladasheins  were inadmissible  under Section 32 and\/or
\nSection 10  of the  Evidence Act.”  The legal consequence of
\nthis finding  was that\tthe charges framed by the Magistrate
\non  December   21,  1962,   on\tthe   basis  of\t  the\tsaid
\nVerladescheins, were unsustainable in law and the Magistrate
\nhad to\texamine the  matter de\tnovo by\t ignoring  the\tsaid
\ncharges\t or   by  amending,  altering  the  same-as  may  be
\njustified on the remaining admissible evidence on record\n<\/p>\n
     (ii)  In\treviewing  and\t deleting  the\tcharges\t and
\ndischarging the\t appellant (Mithani)  and two other accused,
\nthe Magistrate was acting in accordance with the observation
\nof Gokhale  J. in  Cr. R.A.  574 of  1974, which  was to the
\neffect, that  it would be open to the Magistrate to consider
\nwhether the  interlocutory order against which that revision
\napplication was filed, needs to be reviewed.\n<\/p>\n
     (iii) Since  the  Magistrate  had\tunder  the  Code  of
\nCriminal Procedure,  no power  to delete the charges  framed
\nagainst the appellant and two others, it will be deemed that
\nin tho\teye of\tlaw those  charges still  existed  when\t the
\nMagistrate by  his order dated February 26, 1969, discharged
\nthe accused  Mithani and  two others.  This being  the case,
\nthis order  of “discharge”  ought to have been treated as an
\norder of ‘acquittal’.\n<\/p>\n
1002<\/span><\/p>\n
     (iv) (a)  In revision, the High Court was not competent
\nto set\taside this  order of  ‘acquittal’ and  direct, as it
\nwere, a retrial of the accused.\n<\/p>\n
     (b) Since the appellant had, in reality, been acquitted
\nby the\tMagistrate, he\tcould not  be retried  on  the\tsame
\ncharges because of the double jeopardy of autrefois acquit.\n<\/p>\n
     (v) There\thas been  gross laxity and delay on the part
\nof  the\t  prosecution  in  prosecuting\ttheir  case  and  in
\nproducing all  their evidence,\twhich is  nothing  short  of
\nabuse of  the process  of the Court. the complaint was filed
\non April 1, 1961. The order of “discharge” was passed by the
\nMagistrate on`February\t26, 1969,  and the  aforesaid  order
\ncame up\t for consideration in revision before the High Court
\nin January  1976. The  High Court’s  order dated January 21,
\n1976, directing\t de novo  proceedings against  the appellant
\nafter a\t lapse of  several years would be unjust and unfair,
\nparticularly  when   this  delay  was  attributable  to\t the
\nprosecution which  had, indeed,\t closed its  evidence before
\nthe framing  of the  charge and\t its request  to examine the
\nGerman Witnesses on commission stands declined.\n<\/p>\n
     As against\t this, Shri Soli Sorabji, learned Additional
\nSolicitor General  submits that\t the appellant (Mithani), in
\nfact, had  never filed any revision against the order of the
\nMagistrate, framing  charges against  him and  others. It is
\npointed out that in Cr.R.A. No. 574 of 1964 filed by Mithani
\non July\t 17, 1964  in the  High Court, the challenge was, in
\nterms, confined to the Magistrate’s order, dated December 6,
\n1962, whereby  he had  admitted 9  Verladescheins, Bills  of
\nLading, invoices  etc. into  evidence; and  that  the  order
\ndated  December\t 21,  1962,  framing  the  charges  was\t not
\nspecifically  challenged.   In\tany  case,  Gokhale  J.\t had
\nsummarily rejected  Mithani’s Criminal Revision by an order,
\ndated August  21,  1964.  According  to\t Shri  Sorabji,\t the
\nfurther observation  in that  order of\tGokhale\t J.  to\t the
\neffect that  it was  open to  the  Magistrate  to  consider,
\n“whether the  interlocutory order  against which the present
\nrevision application  is filed,\t needs to  be reviewed”, was
\nmade  only  in\trespect\t of  the  Magistrate’s\torder  dated
\nDecember 6,  1962 and not the order whereby the charges were
\nframed.\t It   is  further   submitted  that   Gokhale\tJ.’s
\nobservations and  directions in\t his judgment  dated  August
\n19\/20, 1964  in Cr.R.A.\t No. 107  of 1964, could not, by any
\nstretch of  imagination, be  construed\tas  authorising\t the
\nMagistrate  to\t reconsider  and  delete  the  charges,\t and
\ndischarge the  accused. On  the contrary,  the learned Judge
\nhad directed  amendment of  the charge so that the period of
\nthe conspiracy was not restricted to the period mentioned in
\nthe
\n1003<\/span>
\ncharges. It is further submitted that the Magistrate’s order
\narbitrarily  deleting  the  charges  and  “discharging”\t the
\naccused, was  patently illegal\tand the High Court was fully
\ncompetent and  justified to  set it aside in the exercise of
\nits revisional powers under Section 439 of the Code.\n<\/p>\n
     As regards\t delay\tin  the\t proceedings,  Shri  Sorabji
\nsubmits, it  was mostly\t due  to  circumstances\t beyond\t the
\ncontrol of  the prosecution;  that the\tcharge\tagainst\t the
\nappellant was  a grave\tone and\t the direction\tgiven by the
\nHigh Court  to take further proceedings, inter alia, against
\nthe appellant was not unjust and unfair.\n<\/p>\n
     We are unable to accept any of the contentions advanced
\nby Shri Shroff.\n<\/p>\n
     At the  outset, let  us have  a look  at  the  relevant
\nprovisions of  the Code\t of Criminal  Procedure, 1898, which
\nadmittedly governed  the pending  proceedings in  this case.
\nThe procedure  for trial  of warrant cases by Magistrates is
\ngiven in  Chapter XXI  of that\tCode. The  present case\t was
\ninstituted on  a criminal  complaint. Section  252  provides
\nthat in\t such a\t case, the  Magistrate shall proceed to hear
\nthe complainant\t (if any) and take all such evidence, as may
\nbe produced,  in support of the prosecution. Sub-section (2)
\nof that\t Section casts a duty on the Magistrate to ascertain
\nthe names  of persons likely to be acquainted with the facts
\nof the\tcase and  to  be  able\tto  give  evidence  for\t the
\nprosecution, and  to summon  all such  persons for evidence.
\nSection 253  indicates when  and in  what  circumstances  an
\naccused may be discharged: It says:\n<\/p>\n
\t  “253(1) If,  upon taking all the evidence referred
\n     to in Section 252, and making such examination (if any)
\n     of the  accused as\t the Magistrate thinks necessary, he
\n     finds that\t no case  against the  accused has been made
\n     out which, if unrebutted, would warrant his conviction,
\n     the Magistrate shall discharge him.
\n\t  (2) Nothing  in this\tsection shall  be deemed  to
\n     prevent a\tMagistrate from\t discharging the  accused at
\n     any previous  stage of  the case  if, for reasons to be
\n     recorded by such Magistrate, he considers the charge to
\n     be groundless.”\n<\/p><\/blockquote>\n
Section 254  indicates when  and  in  what  circumstances  a
\ncharge should be framed. It reads:\n<\/p>\n
\t  “254 when  such evidence and examination have been
\n     taken and\tmade, or  at any previous stage of the case,
\n     the
\n1004<\/span>
\n     Magistrate is  of opinion\tthat  there  is\t ground\t for
\n     presuming that  the accused  has committed\t an  offence
\n     triable under  this Chapter,  which such  Magistrate is
\n     competent to  try, and  which in  his opinion  could be
\n     adequately punished by him, he shall frame in writing a
\n     charge against the accused.”\n<\/p><\/blockquote>\n
Section 255  enjoins that the charge shall then be read over
\nand explained  to the accused, and he shall be asked whether
\nhe is  guilty or  has any  defence to  make. If\t the accused
\npleads guilty,\tthe Magistrate\tshall record  that plea, and
\nmay convict him thereon.\n<\/p>\n
     Section 256  provides that\t if the\t accused refuses  to
\nplead or  docs not plead, or claims to be tried, he shall be
\nrequired to  state at  the next hearing whether he wishes to
\ncross-examine any of the witnesses for the prosecution whose
\nevidence has  been taken,  and if  he says  he so  wants  to
\ncross-examine, the  witnesses named by him shall be recalled
\nand he\twill be\t allowed to further cross-examine them. “The
\nevidence of  any remaining  witnesses  for  the\t prosecution
\nshall next  be taken”  and thereafter  the accused  shall be
\ncalled upon to enter upon and produce his defence.\n<\/p>\n
     Section 257  is not  material. Section  258(1) provides
\nthat if\t in any\t case “in which a charge has been framed the
\nMagistrate finds  the accused not guilty, he shall record an
\norder of  acquittal. Sub  section (2) requires, where in any
\ncase under  this chapter  the Magistrate does not proceed in
\naccordance with\t the provisions\t of Section  349 or  Section
\n562, he shall, if he finds the accused guilty, pass sentence
\non him in accordance with law.\n<\/p>\n
     From the  scheme of the provisions noticed above, it is
\nclear that  in a  warrant case\tinstituted  otherwise  on  a
\npolice report,\t‘discharge’ or\t‘acquittal’ of\taccused\t are
\ndistinct concepts  applicable to  different  stages  of\t the
\nproceedings in\tCourt. The  legal effect  and  incidents  of
\n‘discharge’ and\t ‘acquittal’ are also different. An order of
\ndischarge in  a warrant case instituted on complaint, can be
\nmade only  after the  process has been issued and before the
\ncharge is  framed. Section  253(1) shows  that as  a general
\nrule there  an be  no order of discharge unless the evidence
\nof all\tthe prosecution\t witnesses has\tbeen  taken  and  he
\nconsiders for  reasons to  be recorded,\t in the light of the
\nevidence that  no case\thas been  made out.  Sub-section (2)
\nwhich authorises  the Magistrate to discharge the accused at
\nany previous stage of the case if he considers the charge to
\nbe groundless,\tis an  exception to  that rule.\t A discharge
\nwithout considering  the evidence  taken is  illegal.  If  a
\nprima facie case is made out the Magistrate
\n1005<\/span>
\nmust proceed  under Section 254 and frame charge against the
\naccused. Section  254 shows  that a charge, can be framed if
\nafter  taking\tevidence  or  at  any  previous\t stage,\t the
\nMagistrate, thinks  that there\tis ground for presuming that
\nthe accused  has committed  an offence\ttriable as a warrant
\ncase. Once  a charge  is framed, the Magistrate has no power
\nunder section  227 or  any other  provision of\tthe Code  to
\ncancel the  charge, and reverse the proceedings to the stage
\nof Section  353 and  discharge the  accused. The  trial in a
\nwarrant case starts with the framing of charge; prior to it,
\nthe proceedings\t are only  an inquiry.\tAfter the framing of
\ncharges if  the accused pleads not guilty, the Magistrate is
\nrequired to proceed with the trial in the manner provided in
\nsection 254  to 258,  to a  logical end.  Once a  charge  is
\nframed in  a warrant case, instituted either on complaint or
\na police  report, the Magistrate has no power under the Code
\nto discharge  the accused,  and thereafter,  he\t can  either
\nacquit or  convict the\taccused unless he decides to proceed
\nunder Section  349 and\t562  of\t the  Code  of\t1892  (which
\ncorrespond to Sections 325 and 360 of the Code of 1973).\n<\/p>\n
     Excepting where the prosecution must fail for want of a
\nfundamental defect,  such as  want of  sanction, an order of
\nacquittal must\tbe based  upon a  ‘finding  of\tnot  guilty’
\nturning on  the merits\tof the\tcase and the appreciation of
\nevidence at the conclusion of the trial.\n<\/p>\n
     If after  framing charges\tthe Magistrate\twhimsically,
\nwithout appraising  the evidence  and without permitting the
\nprosecution to\tproduce all  its evidence,  ‘discharges’ the
\naccused, such  an acquittal,  without trial, even if clothed
\nas ‘discharge’,\t will be illegal. This is precisely what has
\nhappened in  the instant  case. Here, the Magistrate, by his
\norder dated December 12, 1962 framed charges against Mithani
\nand two\t others. Subsequently,\twhen on\t the disposal of the
\nRevision  applications\tby  Gokhale,  J.  the  records\twere
\nreceived back,\the arbitrarily\tdeleted\t those\tcharges\t and
\ndischarged the\taccused, without  examining  the  “remaining
\nwitnesses” of  the prosecution\twhich he had in the order of
\nframing charges, said, “will be examined after the charge”.\n<\/p>\n
     It is  not correct\t as has\t been contended on behalf of
\nMithani, that  in adopting  this course\t the Magistrate\t was
\nonly acting  in accordance  with the observations\/directions
\nof  Gokhale  J.\t in  the  judgments  disposing\tof  Criminal
\nRevisions 107\/63  and 514 of 1964. A perusal of Gokhale, J’s
\norders in  these two Revision Applications-material portions
\nof which  have been  quoted earlier-will  show that there is
\nnothing in  those orders  which expressly  or by implication
\nrequired  the\tMagistrate  to\t delete\t the   charges\t and
\n‘discharge’ or acquit the accused.\n<\/p>\n
1006<\/span><\/p>\n
On the\tcontrary, the  learned High Court Judge (Gokhale J.)
\nhad accepted  the Revision  filed  by  the  prosecution\t and
\ndirected the  Magistrate to  amend the\tcharges in so far as
\nthey appear  to restrict the period of conspiracy to the one
\nbetween the  dates mentioned  in the charges. Gokhale J. had
\nfurther\t  directed    the   Magistrate\t to   consider\t the
\ncircumstantial and  other evidence of the prosecution with a
\nview  to   frame  additional   charges\tas  claimed  by\t the
\nprosecution.\n<\/p>\n
     Gokhale J’s  judgment in  Cr.R.A. 107  shows  that\t the
\nlearned Judge  did not\thold that  the verladesheins  or the
\nother documents\t in question  tendered by  the\tprosecution,
\nwere not  relevant  at\tall,  under  any  provision  of\t the
\nEvidence Act. All that was held by him was that before these
\ndocuments could\t be admitted  under Section 32(2) or Section
\n10 of  the Evidence  Act, some\tpreliminary facts  had to be
\nestablished by\tthe prosecution.  For instance,\t one of\t the
\nconditions precedent  for the  admissibility of\t a  previous
\nstatement of  a\t party\tunder  Section\t32(2)  is  that\t the
\nattendance of the witness who made that statement, could not
\nbe procured  without an amount of delay and expense which in
\nthe circumstances  of the  case, appeared to the Court to be
\nunreasonable. Similarly,  With regard  to the  invocation of
\nSection 10,  Evidence Act,  it was  observed that before the
\ndocuments concerned  could be  admitted\t under\tSection\t 10,
\nEvidence Act,  prima facie  proof, aliunde  should be  given
\nabout the  existence of\t the conspiracy.  On  the  contrary,
\nGokhale J.  clearly held  that the  documents, in  question,
\nwere relevant  to the  facts in\t issue, but  they had  to be
\nproved in  any of  the ways  recognised by the Evidence Act,
\nGokhale J.  never quashed  the charges already framed by the
\nMagistrate. It\tis true\t that the prosecution in its Special
\nLeave Petitions\t 965 and 966 contended that the observations
\nmade by\t Gokhale J.  with regard  to  the  admissibility  of
\nVerladasheins and  other  documents  are  of  “far  reaching
\nimportance and\tare likely to prejudice the prosecution” and
\nwill affect  the future\t course of the proceedings adversely
\nto the\tprosecution. However, apart from these Verladasheins
\nthere was  other circumstantial\t and oral  evidence  on\t the
\nrecord and  more evidence  was yet  to be  produced  by\t the
\nprosecution after  the charge.\tThe prosecution\t were  doing
\ntheir best  to secure  the evidence  of German\twitnesses in
\nEurope. They want to produce other evidence also, apart from
\nthe Verladasheins,  to show a prima facie case of conspiracy
\nso that\t in accordance\twith the  guidelines  laid  down  in
\nGokhale J’s  judgment, they  could make\t out a\tcase for the
\nadmissibility  of   the\t Verladasheins\t under\tSection\t 10,
\nEvidence Act.\n<\/p>\n
     A perusal\tof the\tcopy of\t the Revision Application No
\n574\/64 filed  by Mithani  in the  High Court, will show that
\nthe only order specifically challenged therein was one dated
\nDecember 6, 1962 whereby the
\n1007<\/span>
\nMagistrate had\theld that  9 Verladasheins  were  admissible
\nunder Section  10, Evidence  Act, although, incidentally, it
\nwas mentioned  that the\t charges framed\t as a consequence of
\nthe impugned  order dated  December 6,\t1962, should also be
\nquashed.  Even\t so,  Mithani’s\t Revision  Application\t(No.
\n574\/64) was summarily rejected by the learned Judge with the
\nobservation that  the Magistrate  could, in the light of the
\nobservations in\t the Judgment  in Cr.Rev.  A. 107  of  1963,
\n“consider, whether the interlocutory order against which the
\npresent Revision Application is filed needs to be reviewed.”
\nThe crucial  part of  the observation is that which has been
\nunderlined. It\tshows that  this observation  has  reference
\nonly to\t the  order  dated  December  6,  1962\twhereby\t the
\nMagistrate had held 9 Verladasheins admissible under Section\n<\/p>\n
10. In\tthis  observation,  the\t word  “order”\tis  used  in
\nsingular. It  shows that  the learned Judge, also, construed
\nthe Revision-petition of Mithani as one directed against the
\nMagistrate’s order  dated December  6, 1962, only. Only that
\norder of  the Magistrate has been exhaustively considered in
\nthe Revision Application 107 of 1964.\n<\/p>\n
     It is  thus manifest  that\t in  abruptly  deleting\t the
\ncharges and  ‘discharging’ the\taccused, the  Magistrate was
\nacting\tneither\t  in  accordance  with\tthe  observation  or
\ndirections of Gokhale J., nor in accordance with law.\n<\/p>\n
     Equally meritless,\t albeit ingenious  is  the  argument
\nthat since  the Magistrate  had no legal power to delete the
\ncharge the  order of  ‘discharge’ must\tbe construed  as  an
\norder of  “acquittal” so  that\tthe  High  Court  could\t not
\ninterfere with it in revision and direct a retrial. Assuming
\narguendo, the  Magistrate’s order  of discharge was an order
\nof ‘acquittal’,\t then also,  it does not alter the fact that
\nthis ‘acquittal’  was manifestly  illegal. It was not passed
\non merits, but without any trial, with consequent failure of
\njustice.  The  High  Court  has\t undoubtedly  the  power  to
\ninterfere with such a patently illegal order of acquittal in
\nthe exercise  of its  revisional jurisdiction  under Section
\n439, and  direct a  retrial. The  High Court’s\torder  under
\nappeal, directing  to Magistrate to take de novo proceedings
\nagainst the  accused was  not barred  by the  provisions  of
\nSection 403,  (of the Code of 1898), the earlier proceedings
\ntaken by  the Magistrate being no trial at all and the order
\npassed therein\tbeing neither  a valid\t“discharge”  of\t the
\naccused nor  their  acquittal  as  contemplated\t by  Section
\n405(1).\t The   Magistrate’s  order  (to\t use  the  words  of
\nMudholkar J. in Mohd Safi v. State of West Bengal was merely
\n“an order putting a stop to these pro-\n<\/p>\n
1008<\/span><\/p>\n
ceedings” since\t the proceedings, ended with that order. The
\nother contentions of the appellant, have been stated only to
\nbe rejected.\n<\/p>\n
     For all the reasons aforesaid, we have no hesitation in
\nupholding the  High  Court’s  order  under  appeal,  and  in
\ndismissing the\tappeal. Since  the case\t is  very  old,\t the
\nMagistrate shall proceed with the case with utmost despatch,
\nif feasible,  by holding  day to  day  hearings\t within\t six
\nmonths from today.\n<\/p>\n
N.V.K.\t\t\t\t\t   Appeal dismissed.\n1009<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ratilal Bhanji Mithani vs The State Of Maharashtra & Ors on 28 September, 1978 Equivalent citations: 1979 AIR 94, 1979 SCR (1) 993 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: RATILAL BHANJI MITHANI Vs. RESPONDENT: THE STATE OF MAHARASHTRA & ORS. DATE OF JUDGMENT28\/09\/1978 BENCH: SARKARIA, RANJIT SINGH BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-89141","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRatilal Bhanji Mithani vs The State Of Maharashtra & Ors on 28 September, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ratilal-bhanji-mithani-vs-the-state-of-maharashtra-ors-on-28-september-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ratilal Bhanji Mithani vs The State Of Maharashtra & Ors on 28 September, 1978 - 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