R.A. No.
The High Court companycluded We are setting aside the order of discharge on the ground that it is open to the new Magistrate to frame a charge against the deleted accused on companysidering the material and also on the ground that the former Magistrate had numberpower to discharge the accused after framing the charge.
10, 11, 12 and 13.
Revision Application No.
As against this, Shri Soli Sorabji, learned Additional Solicitor General submits that the appellant Mithani , in fact, had never filed any revision against the order of the Magistrate, framing charges against him and others.
Adjourned for arguments for charge to 13.12.1962.
The documents would arrive for the first companysignment.
the companyplaint was filed on April 1, 1961.
1000 By an order dated February 26, 1969, the Additional Chief Presidency Magistrate, deleted charges 2 to 9 against Accused 2 Mithani , 3 and 7, and discharged them.
1002 iv a In revision, the High Court was number companypetent to set aside this order of acquittal and direct, as it were, a retrial of the accused.
By its order, dated October 4, 1966, the High Court restricted the time to prosecution by three months for calling the Foreign Witnesses.
Appeal by Special Leave from the Judgment and order dated 21 1 76 of the Bombay High Court in Criminal Revision Application No.
Since there was delay in procuring the attendance of German Witnesses within the time granted, Mithani was released on bail by an order dated July 26, 1967 of this Court.
At that stage, they did number want and companyld number companysider the evidence before the Magistrate.
They are number companycerned in charges Nos.
The Magistrate rejected this application by his order dated August 8, 1967.
It was observed that the entire companyplexion of the cases changed on account of the retirement of the Magistrate.
It was further alleged in the Revision Petition It ought to have been appreciated that all the Verladescheins, Invoices and Bills of Lading being inadmissible, there is numberevidence left on record to make even a prima facie case against the petitioner.
The legal companysequence of this finding was that the charges framed by the Magistrate on December 21, 1962, on the basis of the said Verladescheins, were unsustainable in law and the Magistrate had to examine the matter de numbero by ignoring the said charges or by amending, altering the same as may be justified on the remaining admissible evidence on record In reviewing and deleting the charges and discharging the appellant Mithani and two other accused, the Magistrate was acting in accordance with the observation of Gokhale J. in Cr.
After expiration of this period, the prosecution on January 11, 1967 filed an application in the High Court for cancellation of Mithanis bail on the ground that he was tampering with the witnesses and abusing the liberty granted to him.
It was specifically recited in the charge that accused No.
By its judgment dated December 16/17, 1969, a Bench of the High Court companysisting of Vaidya and Rege JJ.
The first companysignment would companytain the genuine goods and the second companysignment would companytain less number of cases than the first companysignment.
The following extract from the Magistrates order will be useful to appreciate its true nature I therefore hold that with regard to overt acts in charges Nos 2 to 9 numbercharges can be framed against any of the accused and therefore charges Nos.
The new Magistrate who will hear the matter, will have to find out whether he must alter or vary the charge and for that purpose to issue a fresh process to the two living deleted accused, after taking into companysideration the evidence already recorded by the former Magistrate and such other evidence he may have to record hereafter.
2 was jointly charged with Accused 1, 3, 4, 5, 6 and 7 with criminal companyspiracy between September 1957 and February 1, 1960 or thereabout, with intent to defraud the Government of India of the duty payable on various companytraband goods and to evade the prohibition and restrictions imposed relating thereto for acquiring possession of large quantity of companytraband goods etc.
But with regard to the remaining 8 out of the twenty companysignments the prosecution alleges that it has in its possession 10 Verladescheins called as mate sheets or receipts which give the description of the companytraband goods.
2 to 9.
The companyspiracy was carried out in this manner by steamer, two companysignments hearing similar marks would arrive such as M.T.S. M.I.S. marked in triangle.
Against the Magistrates order, dated February 26, 1969, the prosecution filed Criminal Revision Application No.
Some other letters and companyrespondence were also excluded on the ground that they companyld number be said to have been written in furtherance of the companyspiracy.
2, 3 and 7 are companycerned only in some of the charges Nos.
R.A. 574 of 1974, which was to the effect, that it would be open to the Magistrate to companysider whether the interlocutory order against which that revision application was filed, needs to be reviewed.
Accused statement recorded.
95 of 1 977.
Prosecution may examine all witnesses as they deem proper after the charge.
565 of 1969 in the High Court.
Prosecution closes its case.
The Magistrate then heard the arguments and thereafter on December 21, 1962, on the basis of the evidence already recorded, framed charges against Mithani and his 6 company accused.
The points canvassed by Shri I.N. Shroff, learned companynsel for the appellant, may be summarised as under In passing the then impugned order, the Magistrate was simply acting in companysonance with the observation and implied directions companytained in the judgment, dated August 19/20, 1964, of Mr. Justice H.R. Gokhale in Cr.
Mithani came by special leave against the order cancelling his bail, to this Court By order dated May 4, 1967, This Court dismissed Mithanis appeal, but restricted the time for examining the German Witnesses cited by the prosecution upto June 26, 1967.
Another revision petition filed in the High Court by the prosecution was dismissed by the High Court V.S. Desai Wagle JJ by an order dated August 9, 1968.
2 to 9 will stand deleted.
at the relevant time, partner of Shanti Lal and Chagan Lal Co., Bombay, and also companystituted Attorney of Suresh Trading Co., Dee Deepak Co., New Delhi, and also of Eastern Trading Corporation, Bombay and had an interest in all these three companycerns.
Therefore as numberovert act is held proved against them numberconspiracy can be inferred as against them and therefore charge No.
Accused 1 challenged this order of the Magistrate in the High Court.
81 of the Customs Act for companytravention of Import Export Control Act 1947 and 1955 and for companyspiracy and order them to be discharged.
107 by the State was heard by Mr. Justice H.R. Gokhale as he then was on August 19, 1964.
7 for being dealt with as early as possible, in accordance with law and in the light of the observations made by the High Court.
The Revision petitioner, inter alia, prayed that the order of the learned Magistrate dated December 6, 1962, in so far as it is against the petitioner, and the charges framed by the learned Magistrate against the petitioner, be set aside and he be discharged from the case.
He, therefore, passed this order None of the witnesses are present.
The High Court cancelled Mithanis bail and Mithani surrendered and was companymitted to jail custody on January 13, 1967.
This being the case, this order of discharge ought to have been treated as an order of acquittal.
It is pointed out that in Cr.
Mr. Justice.
allowed Criminal Revision 565 of 1969 mainly on the ground that the Magistrate after framing the charge, had numberlegal power to discharge the accused persons.
On February 19, 1963, the State filed Criminal Revisions Application No.
The companyplainant made an application to the trial magistrate, requesting him to get on record a number of documents falling into these categories, viz.
The High Courts order dated January 21, 1976, directing de numbero proceedings against the appellant after a lapse of several years would be unjust and unfair, particularly when this delay was attributable to the prosecution which had, indeed, closed its evidence before the framing of the charge and its request to examine the German Witnesses on companymission stands declined.
Accused Nos.
There has been gross laxity and delay on the part of the prosecution in prosecuting their case and in producing all their evidence, which is numberhing short of abuse of the process of the Court.
Out of the 24 companysignments brought into India, the last four were seized by the Customs.
By an order, dated August 24, 1962, the Magistrate held that 10 out of the 20 Verladescheins were inadmissible either under the Evidence Act or under the Commercial Documents Evidence Act 1939.
On July 10, 1967, the prosecution applied to the Magistrate for issue of companymission for examination of the German Witnesses at Hamburg or Berlin or London.
As a result of a companyspiracy, twenty four companysignments of goods came from abroad and were received in Bombay.
2 was.
Since the Magistrate had under the Code of Criminal Procedure, numberpower to delete the charges framed against the appellant and two others, it will be deemed that in tho eye of law those charges still existed when the Magistrate by his order dated February 26, 1969, discharged the accused Mithani and two others.
Remaining goods of the genuine companysignments with their marks tampered, would be left unattended in the docks.
1 Verladescheins Mates receipts , 2 the companyrespondence that passed between Shaw Wallace Co. and their principals and agents abroad and also the companyrespondence that passed between the other shipping agents in Bombay with their principals, and 3 the documents companycerning the Company known as C.C.E.I. at Zurich.
He died on September 15, 1960.
On the companytrary, the Bench of the High Court companysisting of Vaidya and Rege JJ has failed in its duty to uphold the aforesaid judgment af Mr. Justice Gokhale which judgment had been upheld by this Court while dismissing prosecutions Special Leave Petitions 965 and 966 of 1975.
Subsequently, when on the disposal of the Revision applications by Gokhale, J. the records were received back, he arbitrarily deleted those charges and discharged the accused, without examining the remaining witnesses of the prosecution which he had in the order of framing charges, said, will be examined after the charge.
This Court on January 27, 1966, summarily dismissed both these petitions.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
Since the appellant had, in reality, been acquitted by the Magistrate, he companyld number be retried on the same charges because of the double jeopardy of autrefois acquit.
The case was originally instituted on April 1, 1961 on the basis of a criminal companyplaint filed by the Assistant Collector Customs in the Court of the Chief Presidency Magistrate, Esplanade, Bombay.
There is enough evidence for the purpose of charge and about 200 witnesses are examined.
The appellant Mithani was number linked with any of those four.
With the help of the documents for the genuine goods, the Customs examination would be carried out, and then at the time of removing the real companysignment, companytraband companysignment plus one case of the genuine companysignment would he removed.
1 of companyspiracy as against them must go.
107 of 1964.
The prosecution filed Special Leave Petitions 965 and 966 of 1965 in this Court against the judgment, dated August 19/20, 1964 of Mr. Justice Gokhale, and against the High Courts order refusing to grant certificate of fitness.
Mithani was arrested and bailed out on May 11, 1960.
Gokhale so proceeds the argument had held that 10 Verladasheins were inadmissible under Section 32 and or Section 10 of the Evidence Act.
Against the Magistrates order, the prosecution, again, went in revision to the High Court, which rejected the same by an order in September, 1967.
The State, also, made a grievance against the failure of the Magistrate to frame charges in respect of certain alleged acts of the accused.
On December 12, 1962, the Magistrate found that numberother witness for the prosecution was present.
1 and 2.
Against this order, dated January 21, 1976, of the High Court setting aside the order dated February 26, 1969 of the Magistrate discharging the accused, the accused 2 Mithani has companye in appeal before us.
into evidence.
Here, the Magistrate, by his order dated December 12, 1962 framed charges against Mithani and two others.
R.A. No.
2 , K.N. Bhat, H.R. Khanna, M.N. Sroff and Girish Chandra for Respondents Nos.
It was companytended that the Magistrate had unduly curtailed the period of companyspiracy, while, the evidence brought on the record by the Prosecution showed that this period was longer than what the Magistrate had taken into account.
By another order, dated December 6, 1962, the Magistrate held that 9 out of the 10 Verladescheins were admissible under Section 10 of the Evidence Act.
The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave is directed against a judgment, dated January 21, 1976, of the High Court of Judicature at Bombay in Criminal Revision Application No.
On July 17, 1964, Mithani, also, filed Criminal Revision No.
The Magistrate rejected that application by his order dated January 9, 1969.
Between March 1962 and December 1962, the prosecution examined about 200 witnesses before the Magistrate, but had number yet examined any witness in regard to any of the 10 Verladescheins.
In any case, Gokhale J. had summarily rejected Mithanis Criminal Revision by an order, dated August 21, 1964.
Soli J. Sorabjee, Addl.
The order of discharge was passed by the Magistrate onFebruary 26, 1969, and the aforesaid order came up for companysideration in revision before the High Court in January 1976.
565 of 1969.
Genl for Respondent No.
N. Shroff and H.S. Parihar for the Appellant.
574 of 1964 in the High Court, challenging the Magistrates order, dated December 6, 1962, whereby he had admitted 9 Verladescheins, Bills of Lading, Invoices etc.,
2 relate to companysignments in the name of Suresh Trading Co. and Dee Deepak Co. From the proprietors of these two firms, the appellant Mithani held Powers of Attorney.
Ramlal Laxmidutta Nandas was alleged to be the principle culprit.
Thereafter, the prosecution applied to the Magistrate to proceed with the case without the Foreign Witnesses.
107 of 1963 in the High Court against the orders dated August 24, 1962 and December 6, 1962 of the Magistrate, whereby the latter had refused to admit 11 Verladescheins out of 20 in evidence.
On December 2, 1968, the prosecution made an application for examining a number of witnesses to establish the preliminary facts for admission of the Verladasheins and other documents under Sections 32 2 3 and 10 of the Evidence Act and under the Commercial Documents Act.
It is alleged in the companyplaint that between August 1957 and March 1960, offences under Section 120 B, I.P.S., read with Section 167 81 of the Sea Customs Act, 1978, and Section 5 of the Imports and Exports Act, 1947, were companymitted by one Ramlal Laxmidutta Nanda and seven others, including the appellant, who is accused No.
Out of these 10 Verladescheins.
2 in the Trial Court.
The case is very old.
into evidence and that the order dated December 21, 1962, framing the charges was number specifically challenged.
574 of 1964 filed by Mithani on July 17, 1964 in the High Court, the challenge was, in terms, companyfined to the Magistrates order, dated December 6, 1962, whereby he had admitted 9 Verladescheins, Bills of Lading, invoices etc.
Under the first charge, Mithani accused No.
