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High Court Of Delhi
BHAVNESH KUMAR PAPPU - Appellant
Versus
UNION OF INDIA - Respondent
Criminal Miscellaneous (Main) 2139 of 1991
Decided On : 07/31/1992
Held: The Magistrate can discharge the accused even before the date fixed for hearing, if upon the material before him, he is satisfied that the accused cannot possibly be convicted of the offence. He has also to hold that the charge is groundless. The word "groundless" appearing in this sub section has not been defined but acting judiciously, a Magistrate has to come to the conclusion and for that he has to give reasonings. The word "groundless" has been interpreted to mean that the evidence is such that no conviction can be rested on it, and not that the evidence does not disclose any offence whatsoever. Therefore, while invoking the provisions of Sub Section (2) of Section 245, the Magistrate has to come to the conclusion on the basis of material placed before him that charge is groundless for what ever reason it may be. Moreover, the discretion used under Sub-Section (2) cannot be excercised arbitrarily. The word' charge' used in this sub section does not refer to framing of a charge. It is infact used in the sense of an accusation or allegation of an offence. Therefore, while exercising his power under Sub Section (2) the Magistrate will have to reappraise the evidence and the allegations made in the complaint based on the set of facts and material collected by the prosecution meaning thereby that he will have to reappraise the whole evidence which has already been gone into by the adjudicating authority. That is not the report of the decision of the Supreme Court in the case of Uttam Chand & Ors. v. Income Tax Officer, Central Circle referred to above. Therefore, it cannot be said that the petitioner should first approach the Magistrate under Section 245(2) and get himself discharged instead of coming to this Court. After one year of the filing of this petition the petitioner cannot be asked to go back and invoke the provision of Sub Section (2) and allow the Magistrate to give reasons and hold that the charge is "groundless" and thenischarge the accused, I think, asking now the petitioner to invoke the power of the Magistrate under Section 245 Cr.P.C., is nothing but a mockery of Justice. This petition was filed on 3rd October, 1991 when the adjudicating authority had already delivered the order dt. 29th August, 1991. The respondent appeared on 13th November, 1991 and now after almost a year, it will serve no purpose by asking the petitioner to go back to the trial court and get an order of discharge. Moreover, the petitioner is not asking to be discharged nor asking reappraisal of the evidence, which has already been gone into by the adjudicating authority. What he is asking in the present petition is quashing of the criminal proceedings. It is now settled by pronouncement of this Court as well as of Supreme Court that once Administrative Tribunal or Adjudicating Authority has exonerated the petitioner, then on the same facts and material criminal proceedings cannot continue and have to be ordered to be dropped. Therefore, there is no question of his seeking discharge. He is asking for quashing of these proceedings which in the eye of law are not maintainable. This to my mind, the High Court is the appropriate forum to do. (Para 8)
Result: Petition allowed.
( 1 ) A very interesting legal point has been raised by Mr. S. S. Dass, counsel for the respondent/union of India on the maintainability of this petition. According to him even though adjudicating authority has exonerated the petitioner, pursuance to which criminal action intialed by the respondent on the same facts and circumstances cannot be sustained, yet the petitioner should first approach the trial court under Section 245 (2) Cr. P. C. instead of invoking the inherent jurisdiction of this Court.
( 2 ) IN order to deal with this contention, in nutshell the case of the prosecution is that on 23rd April, 1988 two trucks Nos. HYO-7141 and HYO 2297 were intercepted by U. P. Police at Ghaziabad Delhi border. 167 gunny bags containing 6012 kgs. of synthetic yarn were seized from truck No. HYO-714. 1 and 149 gunny bags containing 5643 kns. of the same material were seized from truck No. HYO-2297. The seized trucks and the yarn were handed over by the police to the Directorate of Revenue Intelligence, New Delhi who seized the goods on 24th April, 1980 under the Customs Act, 1962. Kulwant Singh was the driver of Truck No. HYO-7141. He was arrested pursuant to the same. That that the truck driver Angrej Singh ran away on seeing the police. On interrogation it was found that the two trucks belong to Patiala Transport Company, New Delhi and Shri Ajaib Singh was the partner of the said Transport Company. Case was investigated and the statements of Kulwant Singh, Baldeep Singh alias Kala and Ajaib Singh were recorded. Statement of Shiv Ram sharma and Nihal Singh said to be the employees of the said Patiala Transport Company were also recorded. Residence of the petitioner was raided but nothing incriminating was found. On the basis of the statement of Shiv Ram Sharma and Nihal Singh personal driver of the car of Ajaib Singh, petitioner was implicated. Ajaib Singh in his statement stated that owner of the smuggled goods were Rajesh Gujral alias Rajan and Ramesh Kumar Wadhera. Kulwant Singh driver did not name the petitioner with the offence charged.
( 3 ) SHIV Ram Sharma in his statement had stated that a week before S. Ajaib Singh had instructed him that he should inform Rajan. or Pappu or Ramesh on telephone Nos. 514155 or 7213766 or 592063 as and when any truck coming from UP side reaches Delhi. Nihal Singh in his statement stated that Ajaib Singh had been transporting foreign goods illegally for Pappu, Rajan and for Ramesh. These goods belong to Pappu, Ramesh and Rajan. They had been keeping foreign goods in their godown at Sanjay Gandhi Transport Nagar, G. T. Kamal Raod. These facts and circumstances as well as the statements were placed before the adjudicating authority who vide its order dated 29th August, 1991 came to the conclusion that no case is made out against the petitioner. In the words of the adjudicating authority which are reproduced as follows:
"in respect of the liability of S/shri Rajan, Pappu and Ramesh Kumar Wadhera, there is no statement on record of either of these three person nor their involvement in the dealing of smuggled goods. The statement of the manager of the Transport Company, Shri Shiv Ram Sharma is only the evidence on record regarding involvement of these three persons. However, this evidence is not substantiated by any there evidence on record to cover the statement given by Shri Shiv Ram Sharma. Searches conducted on the residential premises of all the three persons, Shri Rajan, Shri Pappu and Shri Ramesh Kumar Wadhera also did not lead to recovery of anything incriminating. In the absence of any other corroborative or incriminating evidence I am considering to drop the proceedings against these three persons. "
( 4 ) HAVING come to the above conclusion, after considering the whole evidence, that the petitioner was not involved in the alleged prime, there is no other or further material with the respondents to cotinue with the criminal proceedings. The petitioner should not be allowed
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