Judgment

ORDER: - Special leave granted.

2. This appeal is by special leave. The appellant who is Deputy Chief Controller of Imports and Exports filed a complaint in the Court of Chief Metropolitan Magistrate, Bombay alleging commission of offence under S. 5 of the Imports and Exports (Control) Act, 1947 by the respondents 1 and 2. The said case was got transferred to the Court of the Additional Chief Metropolitan Magistrate, 38th Court, Ballard Estate, Bombay and was numbered as 82/S of 1983. The respondent No. 1 is a private limited company with its registered office at Bombay and the respondent No. 2 is its Managing Director. To this complaint, proviso (a) of S. 200 of the Code of Criminal Procedure was applicable. Therefore, cognizance was taken of the offence alleged without examining the appellant. On 17-1-1983, an application was filed on behalf of the two accused persons for recall of the summonses and dismissal of the complaint. On 12th of May, 1983, the learned Magistrate dismissed the petition. The order of the learned Magistrate was assailed before the High Court and on 2-9-1983, the High Court dismissed it. Then the matter was brought to this Court by filing an application for special leave on 12-12-1983, this Court dismissed the leave application. The case set down for trial after charges were framed. An application was made to the trial Court at this stage to discharge the Managing Director, respondent No. 2 in exercise of inherent powers by contending that the company was prepared to admit its guilt and may be appropriately penalised and the Managing Director against whom there was no allegation of any criminal conduct should be discharged. The learned Magistrate by a reasoned order dated 17th February, 1986, dismissed the application and directed that the trial should proceed against both. That order was assailed by the respondents before the Bombay High Court by filing a criminal writ petition. The High Court by its order dated 10th July, 1986, which is impugned in this appeal, held :

"On perusal of the averments it is seen that at the time the learned trial Judge issued processed against the petitioners-accused, the Department and the State had merely filed a complaint case along with list of witnesses and documents. None of the statements of witnesses or copies of documents were produced before the trial Judge. The complainants verification statement is also not recorded. As such the order of issuance of process is clearly a result of non-application of mind by the trial Judge. Such order would mean that merely on filing a complaint the process could be issued. It would be unjust to the accused if process is issued against him by the Magistrate without first satisfying himself about the nature of the case and whether there exist sufficient grounds for proceeding with the case. Since this is not done, then in the instant case the process issued against petitioner No. 2 (Managing Director) is liable to be quashed on this ground alone. Without short circuiting other grounds it must be pointed out that perusal of the complaint and in particular page 23 of the complaint shows that the prosecution intends to charge petitioner No. 2 as the principal offender along with the petitioner No. 1 company. That is not possible for the simple reason that offence under S. 5 of the Imports and Exports (Control) Act is done principally by the licencee (Company in this case) and or by the abetter to the offence. There are no allegations in the complaint that the petitioner No. 2 either aided or abetted in the contravention of licence conditions by the petitioner No. 1 Company. As such on this ground also the process issued against petitioner No. 2 is liable to be and is quashed and set aside."

The criticism advanced by the learned Judge against the trying Magistrate is wholly untenable and is perhaps applicable to the learned Judge. If reference had been made to S. 200 Proviso (a) of the Code of Criminal Procedure, what has been