Sh. P.N. Khanna and others vs Sarwan Singh

M.R. Sharma, J.—Car No RJQ-6022 driven by one Gurmel Singh was proceeding towards Jullundur on February 14, 1970. It was intercepted by a police party headed by M.M.P.I. Balwant Singh who searched the Car and recovered a sum of Rs. 4,18,000/- lying in an attached case, 13 gold. Sovereigns and one loaded pistol. It is the case of Sarwan Singh that the case belonged to him. The 13 gold sovereigns were recovered from one Bodh Raj who was also traveling in the same car. The said Balwant Singh lodged first information report No. 99 dated February 14,1970, at Police Station, Phillaur, under Sections 411, 414, 120-B, Indian Penal Cede, Section 20 of the Arms Act, Customs Act and Foreign Exchange Regulations Act. The Sections of the last mentioned two Acts under which the Respondents was sought to be proceeded against were not mentioned in the first information report, Sarwan Singh and his companions were produced before the Judicial Magistrate, Phillaur, who remaned them to police custody till March 1, 1970. The Respondents, however, moved the learned Sessions Judge, Jullundur, for being enlarged on bail. His application came up for hearing before the learned Additional Sessions Judge, Jullundur, who ordered on February 18, 1970 that the Respondent be released on bail. Thereafter the Respondent filed an application u/s 523, Criminal Procedure Code, for the return of the property seized from his possession. This application was opposed by the police and the Customs authorities. On October 3, 1970, the learned trial Magistrate passed orders that this property be handed over to the Customs authorities. The allegations made in the complaint, which is sought to be quashed. Show that on October 8, 1970, the Petitioners were present in the Court premise. As soon as the Respondent came out of the Court room he was taken into custody, put in a jeep and forcibly carried away from there. He was not informed of the offence in connection with which he was arrested. The Respondent represented to Petitioner No. 1 that he was already on bail and if the Customs officers wanted to arrest him in connection with any other bailable case, he was prepared to furnish sureties. It is alleged that the request made by the Respondent had no affect on the Petitioners. The Respondent was kept in custody for the whole night and allowed to leave on the following day. After his release, he got himself medically examined and sent telegraphic protests to the authorities.

On the aforementioned allegations, the Respondent filed a complaint in the Court of the learned Chief Judicial Magistrate, Jullundur, on October 5, 1970, who recorded the preliminary evidence and transferred the case on March 22, 1971, to the Court of Sh Bhagwan Singh, Judicial Magistrate 1st Class, Jullundur, for further proceedings.

Before the learned Judicial Magistrate, an objection was raise that the Petitioners were entitled to have the protection of Section 197, Criminal Procedure Code, and in the absence of section by the competent authority they could not be criminally prosecuted. This application was dismissed on 18th November, 1971(sic), and the Petitioners went in revision against that order which was also dismissed by the learned Additional Sessions Judge, Jullundur, vide his order dated April 18, 1973.

It is significant to mention that the Petitioners have nowhere adverted to these important facts in the petition for revision which has been tiled in this Court.

It appears that another application was filed before the learned trial Magistrate in which it was submitted that u/s 155 of the Customs Act, 1962, no criminal proceedings could be launched against the Petitioners. The learned trial Magistrate dismissed this application on April 26, 1974, by making the following observations:

The Learned Counsel for the accused has referred to various documents placed on the file by the accused, but at this stage only the allegations made in the complaint and the preliminary evidence brought on the record can be referred to for adjudging whether the accused were acting in good faith or acted or purported to act in the discharge of their duties. The documents placed on the file by the accused are yet to be proved and even otherwise giving a fair look to the documents what is available at this stage is that the accused have transgressed this power and it is not possible to hold if they acted in a good faith or acted or purported to act in the discharge or their official duties.

The Petitioners challenged this order in revisions. The learned Additional Sessions Judge, Jullundur, declined to interfere on the ground that no revision lay against an interlocutory order passed by the learned trial Magistrate. Feeling aggrieved against these orders, the Petitioners have come to this Court with a prayer that in exercise of the revisional powers the criminal proceedings instituted against them on the basis of the complaint be quashed.

From the above narration of facts, it is obvious that three questions have to be decided in this case, Firstly, whether the present revision petition is competent in view of Section 397(3) of the Criminal Procedure Code. Secondly, if no revision petition is competent, can the Petitioners be given relief by this Court under any other provision of law. Thirdly, whether the Petitioners have been able to make out a case for getting protection u/s 155 of the Customs Act.

this Court exercises revisional jurisdiction to correct the errors of law committed by the subordinate Courts and for doing justice between the parties. In the exercise of this jurisdiction the Court would lean in favour of a party only if it comes to the Court with clean hands and does not suppress the material facts. After all the revisional powers can be exercised by the High Court at its discretion. This discretion has to be exercised on the basis of well known principle, i.e. for eradicating injustice. In a criminal case, an accused person is not under a duty to speak and in that sense his omission to mention material facts in the petition for revision may not be considered as such a default as would disentitled him to be heard on merits if there is a legal bar against the institution of a criminal complaint against him. Again, revisional powers are conferred on this Court by Section 397 of the Criminal Procedure Code. These powers can be exercised subject to the conditions laid down in that section Sub-section (3) of that section provides that if an application for revision has been made by a party either to the High Court or to the Sessions Judge no second application for revision will be entertained on its behalf. Much as I would like to interfere, in the facts and circumstances of this case I feel helpless in view of the bar created by Section 397(3) of the Criminal Procedure Code. My finding on this point is that no second revision petition is competent. The matter has. however, come to my notice may be in an application for revisions and there is no bar against me to exercise jurisdiction under Article 227 of the Constitution provided is empowered to keep the subordinate tribunals within the bounds of their jurisdiction. If there is a legal bar to the institution of a criminal complaint and the learned trial Magistrate without bestowing his attention on the aspect of the case proceeds with the case on merits, it would be a case of erroneous exercise of jurisdiction on his apart. It is settled law that a question relating to jurisdiction of a Court has to be decided at the very outset so that the parties to the litigation may not be subjected to the inconvenience of summoning witnesses. When the Petitioners applied to the learned trial Magistrate that they were entitled to get the protection of Section 155 of the Customs Act, it was his duty to decide this matter at the initial stage instead of insisting that the Petitioners should participate in a protracted trial. The learned trial Magistrate, however, observed, that at that state he could not have a look at the documents produced by the Petitioners and had to give a finding on the basis of the complaint and the evidence led by the wrong approach. When an objection is raised before a criminal Court that the accused is entitled to get the protection of Section 492(sic), Criminal Procedure Code, of any other provision like section l55 of the Customs Act, the Court should instead of prolonging the trial decide this matter. I am of the view that the Petitioners have been able to make out a case that the order passed by the learned trial Magistrate tantamount to non-exercise of jurisdiction vested in him. In exercise of powers vested in me under Article 227 of the Constitution it is open to me to direct the learned trial Magistrate to exercise his jurisdiction for the deciding this matter as a preliminary issue.

It is not necessary to give any final decision on the 3rd point because the matter has to be considered by the learned Judicial Magistrate in accordance with the direction issued to him. It would be then open to either of the parties to challenge his decision in revision. The result of the foregoing discussion is that the learned trial Magistrate is directed to decide whether the Petitioners are entitled to get protection of Section 155 of the Customs Act or not. Before giving a decision on this point, the learned Judicial Magistrate well give adequate opportunity to the Petitioners to produce their evidence documentary or oral. With these observations, this petition stands disposed of.