Harish Dwarkadas Gandhi vs G. B. Yadav, Asst. Dir. D. R. I. & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 324

IN THE HIGH COURT OF BOMBAY
H.H. Kantharia, J.
Harish Dwarkadas Gandhi..... Petitoner.
Versus
G.B. Yadav, Asst. Dir. D.R.I. another ..... Respondents.
Criminal Writ Petition No. 1014 of 1988, decided on 22-9-1988.
Advocate appeared :
N.H. Gurshani with Dr. Ashok Bathija, and S.H. Gursahani, for petitioner.
Azhar Khan, for respondent No. 1.
C.M. Kothari, P.P., for respondent No. 2.

Headnote:Sections 200 and 204-Complaint by public servant-Magistrates conclusion of existence of prima facie-Process may be issue without examining complainant.
       Section 204 envisages that if the Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, he shall issue process on certain conditions being satisfied with which we are not concerned in this case. In short a plain reading of Sections 200 to 204 of the Code shows that on receipt of a complaint, after following a certain procedure, is the Magistrate is satisfied that there is prima facie case to proceed, he may Immediately Issue process, either of summons or of warrant and if he is of the opinion that before issuing process an inquiry or investigation should be made into the allegations made in the complaint, then he may postpone the Issuance of process and hold an inquiry himself or get an investigation made into the allegations against the accused persons. And in such a situation if the offence with which the accused persons are charged is one that is exclusively triable by Court of Sessions, then he shall call upon the complainant to produce all his witnesses and examine them on oath before issuing process.
       It may be pertinent to note here that the proviso to Section 202 (2) of Section (1) and as such it can hardly be construed as controlling or fettering the discretion which vests in the Magistrate under sub-section (1). Therefore, the proviso in question is intended to qualify sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath if it appears to him that the alleged offence is triable exclusively by the Court of Session. But he has a discretion to postpone the issue of process. On an analytical examination of the provisions contained in Sections 200 to 204, it is abundantly clear that the proviso to Section 202 (2) comes into play only when the Magistrate postpones the issue of process and holds inquiry. In the instant case the Magistrate examined the complaint filed before him by a public servant and came to the conclusion that there was prima facie material to proceed against the accused persons and being thus satisfied he ordered the issue of process immediately without examining the complainant or the prosecution witnesses under Section 200 or 202 and, therefore, it cannot be said that his order of issuing process was tainted with any legal infirmity.
       Section 202-Evidentiary value of retracted statement to be seen during trial and not at time of issuing process.
       So long as the evidentiary value that can be attached to a retracted statement is concerned, it can be considered only at the stage of the trial and not at the time of issuing process.

JUDGMENT - H.H. KANTHARIA, J.:---While dealing with this petition under Article 227 of the Constitution read with section 482 of the Criminal procedure Code, 1973 (hereinafter referred to as' the Code') for quashing of process issued by the learned Chief Metropolitan Magistrate, Bombay, in Criminal Case No. 427/CW/1988 at the admission stage. I am reminded of the observations made by the Supreme Court in the case of (State of Maharashtra v. Champalal Punjaji Shah)1, (1981)3 S.C.C 610 as under :

"It is one of the sad and distressing features of our criminal justice system that an accused person, resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journeying back and forth, between the Court of first instance and the superior Court, at frequent interlocutory stages. Applications about to quash investigations, Complaints and charges on all imaginable grounds, depending on the ingenuity of client and Counsel. Not frequently as soon as a Court takes cognisance of a case requiring sanction or consent to prosecute, the sanction or consent is questioned or a improperly accorded, as soon as a witness is examined or a document produced, the evidence is challenged as illegally received and many of them are taken upto the High Court and some of them reach this Court too on the theory that' it goes to the root of the matter'. There are always petitions alleging `assuming the entire prosecution case to be true, no offence is made out'. And inevitably proceedings are stayed and trials delayed. Delay is a known defence tactic.”

This petition is a glaring example of the truth and substance contained in the above observations of the Supreme Court.

2. Short facts relevant for the purpose of disposal of this petition, at the admission stage itself, are as under :

The petitioner (Original Accused No. 6) claims to be a businessman carrying on business of exports of food stuff, garments, hardware, etc. under the name and style of M/s. Gopikant and Brothers. The Assistant Director in the Directorate are Revenue intelligence, Bombay, filed a criminal compliant against him and ten others in the Court of the learned Chief Metropolitan Magistrate, Bombay, alleging that on information, the D.R.I. Officers visited Gala No. 17, first floor, Suyog Industrial Estate, Vikhroli (East) where they found huge quantity of Hashish meant for being exported to London and the same was concealed in the drums containing 'Mango Chutney'. Their enquiry revealved that the said Gala No. 17 was hired by accused No. 5-Nitin K. Bhabnushali through a broke named Suryakant Bhavanji Sachde @ Babubai and the petitioner had a hand in enabling the said Nitin K. Babnushali in hiring the said Gala. The Officers of the D.R.I. opened the Gala on 2nd July, 1987 and recovered 550 plastics drums/carboys containing 4,365 Kgs. of Hashish valued at Rs. 2,619 crores, concealed in 194 plastic carboys. Further enquires made by the D.R.I. Officers revealed that there was a conspiracy among the eleven accused persons to export the Hashish to London by illegal means. Therefore, the Directorate of Revenue Intelligence charged them for offences punishable under sections 120-B of the Indian Penal Code read with sections 8(c), 20, 23, 25, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sections 135(1)(a), (b) read with section 135(1)(ii) and 135-A of the Customs Act, 1962 on 19th August, 1988. The Magistrate examined the complaint and having satisfied himself that there was prima facie material on the record to proceed against the accused persons, including the present petitioner, issued process of warrant in varying amounts against different accused persons by a reasoned order on the same day. It is the said order if issuance of process that has been challenged by the petitioner in this petition.

3. Mr. Gursahani, learned Counsel arguing the petition for

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1988 Supreme(Bom) 324

Cases Referred (2)