Lal Chand and Another vs Assistant Collector, Customs

S.M. Rizvi, J.—This criminal reference has been made by the learned Sessions Judge, Srinagar, in terms of Section 438 of the Cr. P.C.

seeking quashment of the order dt. 8-6-1987 passed by the Learned Chief Judicial Magistrate, Srinagar, whereby he has restored a complaint for

its fresh inquiry, which was earlier dismissed by him for won-prosecution.

A complaint appears to have been instituted against the petitioners' by the Assistant Collector, Customs for contravention of some provisions of

the Gold Control Act, hereinafter referred to as ""Act"", somewhere in 1984. The complainant absented himself to appear in the trial court

continuously for a few hearings, with the result that the complaint was dismissed on 14-6-1986 and the accused/petitioners' got discharged. After a

lapse of more than six months some lawyer appearing for the complainant filed an application signed by himself for revival of the complaint. The

learned Chief Judicial Magistrate asked him to produce the complainant on the next date for his examination. On 2-1-1987 the statement of the

complainant was recorded and a process was issued against the petitioners. They appeared and raised an objection to the maintainability of the

complaint on various grounds. The learned Chief Judicial Magistrate, however, by virtue of the impugned order held that as the order of dismissal

of the complaint fell neither u/s 247, nor u/s 253(2) nor u/s 259 of the Cr. P.C. therefore, there was no bar for initiating fresh proceedings against

them. Accordingly, he over-ruled the objection of the petitioners and proceeded further with the complaint.

Aggrieved, the petitioners filed a revision against the said order and the learned Sessions Judge, Srinagar, is of the view that the said order of the

learned Chief Judicial Magistrate was not in accordance with law, and hence this reference.

Heard learned Counsel for the parties. The record was also examined.

It may Be stated at the very outset, that Section 85, the penal section of the Act, whereunder the petitioners have been asked to face the inquiry

is a cognizable and non-compoundable offence. The allegation against the petitioners attracts the infraction of the offence under Clause (viii) supra

being a contravention of Sub-section (3) of Section 55 of the Act. As the value of the gold involved does not exceed one lakh of rupees, the

offence would, therefore, fall under Sub-clause (b) of Section 85(1) of the Act, which is punishable for a term which may extend to 3 years only

with or without fine. In Chap. XXIII of the Cr. P.C. (offences against other laws) the said offence is cognizable and non-compoundable. That

being so, the learned Chief Judicial Magistrate could not dismiss the complaint for non-prosecution. u/s 259 Cr. P.C. the complaint for the absence

of the complainant can be dismissed provided the offence is compoundable or non-cognizable. In non-compoundable offences, there can be no

discharge on the absence of complainant and the Magistrate shall enforce his attendance and that of his witnesses. The corresponding section for

summons cases is Section 247. Discharge when there is no case against the accused is made out u/s 253. Apparently, the action of the learned

Chief Judicial Magistrate in dismissing the complaint for the absence of the complainant does not fall under any of the sections. Despite that, he has

dismissed the complaint. Now, the question is whether he could revive or restore the complaint. In the Criminal Procedure Code, there is no

provision for restoration of a complaint, once it is dismissed rightly or wrongly. The only course open to the complainant was either to file a revision

against such order of the Magistrate or file a fresh complaint. Admittedly, he has not filed any revision. Instead his counsel has filed an application

for revival of the complaint in the garb of the complaint. It is here that the Magistrate appears to have fallen in error. He has not applied his mind to

the true definition of the complaint and its content. The term appears in several Sections (190, 195, 196, 198, 199, 203, 248, 250 etc.) and its

meaning has been the subject of many decisions. A criminal complaint is similar to the plaint in a civil suit. While all the facts need not be given, the

facts prima facie constituting the offence must be set out in the complaint clearly and accurately. u/s 97 of the Gold Control Act, no court can take

cognizance of any offence against that Act except on a complaint in writing made by a Gold Control Officer, not below the rank of a Collector of

Central Excise or of custom or any person authorised by him in writing in this behalf. The application filed by the counsel for the complainant,

therefore, could not be treated! as a complaint. It was not a complaint in terms of Section 97 supra. It did not set out the facts either which would

prima facie constitute the offence clearly and accurately. Had the learned Chief Judicial Magistrate probed into the contents of the application and

the mandate of Section 97 of the Act. He would not have treated it as a fresh complaint. He had the power to take such cognizance on a fresh

complaint provided it was so in its content and complied with the requirements of Section 97.

It is an established position of law that discharge of an accused for absence of complainant is not on merits. It is not a judgment. In warrant

cases, therefore, a second complaint is not barred on the same facts. But, the Magistrate has no inherent power to review his order of dismissal of

complaint and restore the case. So far as the accused in concerned, dismissal of a complaint for non-appearance of the complainant and his

discharge on the same ground is a final order, and in absence of any specific provision in the Code, a Magistrate cannot exercise any inherent

jurisdiction to restore the case, as he has no such inherent power. Filing of a second complaint is not the same thing as reviving a dismissed

complaint after recalling the earlier order of dismissal.

I have seriously gone into the contents of the application termed as complaint by the counsel for the complainant, and which has been treated as

such by the learned Chief Judicial Magistrate. In my opinion, it falls short of all the ingredients of a complaint and does not comply with the

mandate of Section 97 of the Act.

In these circumstances of the case, I need not go into other questions which have been raised by the learned Counsel for the petitioners during

the course of their arguments. According to them, the very filing of the complaint against the petitioners offends Article 20(2) of the Constitution as

they have been twice put in jeopardy on the same set of facts. They submitted that for contravention of some provisions of the Act, the concerned

department has already proceeded against them, which has culminated in the imposition of fine, by way of punishment. They in fact have raised the

plea of autrefois convict on the plea of double jeopardy, which operates as a bar to a second prosecution and punishment for the same offence. I

don't think it necessary to go into this question nor is it required to be gone into in this reference. It was not raised in any of the subordinate courts

either. I leave it to the petitioners to raise this plea, if need be, and in case any second complaint is filed against them by the complainant on the

same facts.

The reference merits to be accepted on the sole ground that the application filed by an incompetent person, though he was the counsel for the

complainant, could not constitute the complaint in terms of Section 97 of the Gold Control Act. The order impugned passed by the learned Chief

Judicial Magistrate, treating it as a complaint and processing it as such is, therefore, not sustainable in the eye of law.

The result is that the reference is accepted to the extent that the prosecution of the petitioners in terms of the impugned order dt. 8-6-1987

passed by the learned Chief Judicial Magistrate, Srinagar, is bad in law. The said order of the learned Magistrate is, therefore, hereby quashed.

Let the reference file be consigned to records. The record received from the courts below shall be sent back to the said courts.