KHANWILKAR A. M. ,J.

( 1 ) HEARD Mrs. Mohite-Dere for the petitioner/complainant and Mr. M. L Bansal, Mr. P. B. Dave, Mr. R. M. Tiwari, Mr. N. B. Shah, Mr. Jadhav Mr. H. H. Dave, Mr. Nilesh S. Das and Mr. Ashok Singh for the accused.

( 2 ) ALL these matters can be disposed of by a common judgment as questions involved are identical.

( 3 ) BRIEFLY stated, the complainant filed separate complaints against the respondents accused before the Court of Metropolitan Magistrate, 19th Court, esplanade, Mumbai, which have been dismissed by a common order dated 8th March, 1999, discharging the respective accused for the reasons recorded in the said order. That decision is the subject-matter of challenge in the present petitions, at the instance of the complainant.

( 4 ) THE separate complaints filed against the respective accused were in respect of offences punishable under section 5 of the Import and Export (Control) act, 1947 (hereinafter referred to as the Act) and also Indian Penal Code (hereinafter referred to as i. P. C. ) being related offences such as under sections 420, 471, 468, 120-B etc.

( 5 ) THE allegations in the complaints are made on the basis of investigation carried out by the Central Bureau of Investigation (hereinafter referred to as c. B. I.)/special Police Establishment with regard to offence under section 5 of the Act. After the investigation was completed and as C. B. I, was not competent to file a report within the meaning of section 173 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code) in view of the bar of section 6 of the Act, the Investigating Officer of C. B. I, caused the complaint to be filed through the specified Authority under section 6 of the Act.

( 6 ) THE concerned Magistrate took cognizance of the offence under section 5 of the Act and other I. P. C. offences and issued process to the accused under section 204 of the Code. While the complaints were pending, the magistrate was of the view that the complaints could not be proceeded further in law. In his opinion, three questions were required to be answered before proceeding in the matters any further. The said three questions were formulated and the parties were called upon to address on the said aspects. The said questions were :"1) Under what provisions of law, A. P. P. can conduct these private complaints which are filed otherwise than on a police report? 2) Under what provisions of law, investigation papers are handed over to the agency other than police, instead of filing charge-sheet? 3) On which basis of law complaints other than police used the papers of investigation as the basis of filing the complaint?"

( 7 ) AFTER hearing the Counsel appearing for the parties, the Court proceeded to answer the issues in favour of the accused by inter alia, holding that offence under section 5 of the Act, in the setting in which it is placed, is a non-cognizable offence and as it was a non-cognizable offence, the C. B. I, could not have taken notice of the said offence reported to it and in any case, investigated into that matter, without obtaining prior permission of the Court. It has also observed that the Public Prosecutor could not have appeared for the complainant as the complaint filed was a private complaint. On the above reasoning, the Court proceeded to hold that the prosecution against the accused was vitiated and accordingly, proceeded to dismiss the respective complaints and discharged the accused named therein. This view is put in issue before this Court.

( 8 ) ACCORDING to the petitioners, the view taken by the lower Court that the alleged offence against the accused is a non-cognizable offence, cannot be sustained in law, and if that opinion was to be effaced, than the other reasons for dismissing the complaint would become unavailable, in which cases, the complaint as filed on behalf of the complainant will have to proceed in accordance with law It is next submitted that since the offence under section 5 is