Criminal Appeals Nos 15 and 35 of 1967
Appeals from the judgment and order dated October 12 1966 of the Bombay High Court in Criminal Revision Application No 289 of 1966
NSBindraRMParikh and SP Nayar for the appellants in Cr A No 15 of 1967 and the respondents in Cr A No 35 of 1967
NN Keswani for the appellants in Cr A No 35 of 1967 and the respondents in Cr A No 15 of 1967
KR Chaudhuri for the intervener in Cr A No 15 of 1967
The Judgment of the Court was delivered by Hegde J
These appeals by certificate arise from the decision of the High Court of Bombay in Criminal Revision Application No 238 of 1966 wherein the following questions of law arise for decision i Whether the prosecution from which these Criminal Revision Petitions arose is barred under article 20 2 of the Constitution as against accused Nos 1 and 2 in that case by reason of the decision of the Collector of Customs in the proceedings under the  ii Whether under any circumstance the finding of the Collector of Customs that the Ist and 2nd accused are not proved to be guilty operated as an issue estoppel in the criminal case against those accused  iii Whether the present prosecution amounts to an abuse of the process of the Court in view of inordinate delay in launching the same and consequently whether it is liable to be quashed  iv Whether section 1734 Criminal Procedure Code is applicable to the facts of this case and v Whether the documents mentioned in the petition filed by the 1st accused on August 3 1965 are required tO be summoned under section 94 Criminal Procedure Code  The aforementioned questions were raised before the trial Magistrate by the 1st accused by means of an application but 441 the learned Magistrate  found no substance in the pleas advanced in that application and accordingly he dismissed the same as per his order dated 251 1966
In revision a Division Bench of the Bombay High Court agreeing with the trial Magistrate negatived all but one of the contentions advanced on behalf of accused Nos 1 and 2
It did not agree with the learned Magistrate that there was no need at that stage to summon the statements of witnesses recorded Customs Act
It directed the learned Magistrate to summon hose statements and curiously enough it went further and directed him to see that the prosecution made available the copies of those statements to the accused before the commencement of the enquiry in the case
In so far as
the Other documents called for are concerned the High Court after indicating what according to it is the law on the subject left the matter to the discretion of the learned Magistrate
Criminal Appeal No 15 of 1967 is filed by the Assistant Collector of Customs Bombay and the State of Maharashtra and Criminal Appeal No 35 of 1967 is the appeal filed by accused Nos 1 and 2 in the case Case No 98 of 1965 in the Court of the Chief Presidency Magistrate Bombay
The appellants in Criminal Appeal No 15 of 1967 challenge the correctness of the decision of the Bombay High Court in so far as it went against them and the appellants in Criminal Appeal No 35 of 1967 challenge that decision in other respects
The prosecution case is that the accused persons and some other unknown persons had entered into a conspiracy at Bombay and other places in the beginning Of October 1959 or India and in pursuance of that conspiracy they had smuggled several items of foreign goods in the years 1959 and 1960
In that connection an enquiry was held by the Customs authorities
In the course of the enquiry some of the goods said to have been smuggled were seized
After the close of the enquiry those goods were ordered to be confiscated
In addition penalty was imposed on some of the accused
Thereafter on February 19 1965 the Assistant Collector of Customs Bombay after obtaining the required sanction of the Government flied a complaint against five persons including the appellants in Criminal Appeal No 35 of 1967 accused Nos 1 and 2 in the case under section 120 BIPC read with cls
37 75 76 and 81 of section 167 of the Act VIII of 1878 as well as under section 5 of the Imports and Exports Control Act 1947
Before the commencement of the enquiry in that complaint the 1st accused filed on August 3 1965 the application mentioned above
CI69 11 442 Now we shall proceed to examine the contentions set out earlier
Reliance on article 202 is placed under the following circumstances
In the enquiry held by the Collector of Customs he gave the benefit of doubt to accused Nos 1 and 2
This is what he stated therein As regards Ms Lamel Enterprises of which accused No 1 is the proprietor and accused No 2 is the Manager although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty
Since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthorised importation they escape on a benefit of doubt Despite this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons
Hence the question is whether that prosecution is barred under article 202 of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once
This article has no direct bearing on the question at issue
Evedently those accused persons want to spell out from this article the rule of autrefois acquit embodied in section 403 Criminal Procedure Code
Assuming we can do that still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence
In order to get the benefit of section 403 Criminal Procedure Code or article 202 it is necessary for an accused person to establish that he had been tried by a court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force
If that much is established it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he  might have been convicted under section 237
It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a prosecution nor the Collector of Customs a Court
In Maqbool Hussain vs The State of Bombay1 this Court held that the wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute 1  443 which creates the offence and regulates the procedure
This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under section 167 of the and an order for confiscation of goods had been passed was subsequently prosecuted before a criminal court for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act the proceeding before the Sea Customs authorities was not a prosecution and the order for confiscation was not a punishment inflicted by a Court or judicial tribunal within the meaning of article 202 of the Constitution and hence his subsequent prosecution was not barred
The said rule was reiterated in Thomas Dana vs State of Punjab1 and in several other cases
We shall not take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution
The issue estoppel rule is but a facet of the doctrine of autrefois acquit
In Sambasivan vs Public Prosecutor Federation of Malayaa Lord MacDermott enunciated the said rule thus The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication
The maxim Res judicata pro veritate accipitur is no less appliCable to criminal than to civil proceedings
Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial
And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence
That it was not conclusive of his innocence on the firearm charge is plain but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other
 The rule laid down in that decision was adopted  by this Court in Pritam Singh vs State of Punjaba and again in NR Ghose alias Nikhil Ranjan Ghose vs State of West Bengal4
1 2 at p 479
3 AIR 1956 SC 415
4  444 But before an accused can call into aid the above rule he must establish that in a previous lawful trial before a competent courthe has secured a verdict of acquittal which verdict is binding on his prosecutor
In the instant case for the reasons already mentioned we are unable to hold that the proceeding before the Collector of Customs is a criminal trial
From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos 1 and 2
This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same
It is urged on behalf of the accused that because of the delay in launching the same the present prosecution amounts to an abuse of the process of the Court
The High Court has repelled that contention
It has come to the conclusion that the delay in filing the complaint is satisfactorily explained
That apart it is not the case
of the accused that any period of limitation is prescribed for filing
the complaint
Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it
The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict
But by itself it affords no ground for dismissing the complaint
Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint
We also see no merit in the contention that the accused in this case are entitled to the benefit of section 1734 Criminal Procedure Code which provides that before the commencement of the enquiry or trial the officer in charge of the police station who forwards a report under section 173 Criminal Procedure Code should furnish or cause to be furnished to the accused free of cost a copy of the report forwarded under section 1731 Criminal Procedure Code of the first information report recorded under section 154 Criminal Procedure Code and all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions if any recorded under section 164 Criminal Procedure Code and the statements recorded under section 161 Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses
On a plain reading of section 173 Criminal Procedure Code it is clear that the same is wholly inapplicable to the facts of the present case
In the instant case no report had been sent under section 173 Criminal Procedure Code
Therefore that provision is not attracted
That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code followed up by a final report under section 173 Criminal Procedure Code
It may be remembered that sub section
4 of 445 173 was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 1955 presumably because of the changes effected in the mode of trials in cases instituted on police reports
Before the Criminal Procedure Code was amended by Act 26 of 1955 there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases
Till then in all
cases irrespective of the fact whether they were instituted on police reports or on private complaints the procedure regarding enquiries or trials was identical
In both type of cases there were two distinct stages ie the enquiry stage and the trial stage
When the prosecution witnesses were examined in a case before a charge is framed it was open to the accused to cross examine them
Hence there was no need for making available to the accused the documents mentioned in subs4 of section 173 Criminal Procedure Code
The right given to him under section 162 Criminal Procedure Code was thought to be sufficient to safeguard his interest
But Act 26 of 1955 as mentioned earlier made substantial changes in the procedure to be adopted in the matter of enquiry in cases instituted on police reports
That procedure is now set out in section 251A Criminal Procedure Code
This new procedure truncated the enquiry stage
Section 251 A Criminal Procedure Code says that the Magistrate if upon consideration of all the documents referred to in section 173 and making such examination if any of the accused as he thinks necessary and after giving the prosecution and the accused an opportunity of being heard considers the charge against the accused to be groundless he shall discharge him but if he is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case which he is competent to try
and which in his opinion could be adequately punished by him he shall frame in writing a charge against him
Under the procedure prescribed in section 251 A Criminal Procedure Code but for the facility provided to him under s1734of that Code an accused person would have been greatly handicapped in his defence
But in a case instituted on a complaint like the one before us and governed by sections 252 to 259 of the Criminal Procedure Code no such difficulty arises
Therein the position is as it was before the amendment of the Criminal Procedure Code in 1955
We are unable to agree with the learned fudges of the High Court that the legislature did not make available the benefit of s1734 Criminal Procedure Code in cases instituted otherwise than on police reports by oversight
The observations of the learned Judges in the course of their judgment that Even the great Homer occasionally nods
There is nothing to show that thelegislature has applied its mind to the question of the amendment of the procedure so far as the investigation of an offence 446 under the is concerned at the time when it was considering amendments to the Criminal Procedure Code is without any basis
In the first place it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly
Secondly from the history of the legislation to which reference has been made earlier the reason for introducing section 1734 is clear
The learned judges of the High Court were constrained to hold that s 1734 Criminal Procedure Code in terms does not apply to the present case
But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case they have directed the learned Magistrate to require the prosecution to make available to the accused the copies of the statements recorded from the prosecution witnesses during the enquiry under the Customs Act
They have purported to make that order under section 941 Criminal Procedure Code which to the extent material for our present purpose reads Whenever any Court   considers that production of any document or other thing is necessary or desirable for the purposes of any  enquiry trial or other proceeding under this Code by or before such Court  such Court may issue a summons  to the person in whose possession and power such document or thing is believed to be requiring him to attend and produce it
or to produce it at the time and place stated in the summons or order
 This section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person That much appears to be plain from the language of that section it was impermissible for the High Court to read into section 94 Criminal Procedure Code the requirements of section 1734 Criminal Procedure Code
The High Court was not justified in indirectly applying to cases instituted on private complaints the requirements of section 1734 Criminal Procedure Code
That apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate Whether a particular document should be summoned or not is essentially in the discretion of the trial court
In the instant case the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs authorities and shall make avail able to the defence Counsel the statement of the concerned witness as and when he is examined
In view of that assurance the learned Magistrate observed in his order The recording of the prosecution evidence is yet commence in this case and at present there are no male 447 before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial
As stated at the outset the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the heating of the case
The request made for the issue of the summons under section 94 Criminal Procedure Code is also omnibus The reasons given by the learned Magistrate in support of his order are good reasons
The High Court has not come to the conclusion that the documents in question if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required
It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences
Except for very good reasons the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents
Such interferences would unnecessarily impede the progress of eases and result in waste of public money and time as has happened in this case
For the reasons mentioned above we allow Criminal Appeal No 15 of 1967 and dismiss Criminal Appeal No 35 of 1967
In other words we restore the order of the learned Magistrate
GC Criminal Appeal No 15 of 1967 allowed
Criminal Appeal No 35 of 1967 dismissed


Summary:
The accused persons were charged with having entered into a conspiracy at Bombay and other places in the beginning of October 1959 or there about for the purposes of smuggling foreign goods into India and having in pursuance of that conspiracy smuggled several items of foreign goods in the years 1959 and 1960
In that connection an enquiry was held by the Customs authorities
In the course of the enquiry some of the goods said to have been smuggled were seized
After the close of the enquiry those
goods were ordered to be confiscated
In addition penalty was imposed on some of the accused
Accused No 1 and 2 were given by the Collector benefit of doubt on the ground that there was no conclusive evidence against them
Thereafter the Assistant Collector of Customs after obtaining the required sanction of the Government filed a complaint against five persons including Accused 1 and 2 under section 120 B IPC read with section 167 of the as well as under section 5 of the Imports and Exports Control Act 1947
Before the commencement of the enquiry the 1st accused filed an application before the Magistrate raising therein various questions of law namely i whether the prosecution of Accused 1 and 2 was barred by article 202 of the Constitution by reason of the decision of the Collector of Customs ii whether the finding of the Collector of Customs operated as an issue estoppel in the criminal case against Accused 1 and 2 iii whether the prosecution amounted to an abuse of the process of the Court in view of the inordinate delay in launching the same and iv whether section 2734 Cr
PC was applicable to the facts of the case and v whether the documents mentioned in the petition of Accused No 1 to the Magistrate could be summoned under section 94 Cr
The Magistrate dismissed the application of Accused No 1
In revision the High Court while agreeing with the Magistrate on other issues did not agree with him that there was no need at the stage to summon the statements of the witness recorded by the customs authorities in the enquiry under the 
It directed the Magistrate to summon those statements and to see that the prosecution made available copies of these statements to the accused before the commencement of the ennquiry in the case
Against the orders of the High Court the customs authorities as well as the accused appealed to this Court
HELD i In order to get the benefit of section 403 Criminal Procedure Code or article 202 it is necessary for an accused person to establish 439 that he had been tried by a court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said acquittal is in force
If that much is established
it can be contended that he is not liable to be tried again for any other offence for which a different charge from the one made against hun might have been made under section 236 or for which he might have been convicted  under section 237
It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a prosecution nor the Collector of Customs a Court
Therefore in the present case the plea of the accused based on article 202 could not be accepted
442 E G 
Maqbool Hussain vs State oBombay  and Thomas Dana vs State oPunjab  applied
ii Before the accused can call into aid the rule of issue estoppel he must establish that in a previous lawful trial before a competent court he has secured a verdict of acquittal which verdict is binding on his prosecutor
In the instant case since the proceeding before the  Collector was not a criminal trial it follows that the decision of the Collector did not amount to a verdict of acquittal in favour of accused Nos 1 and 2444 A B Sambasivan vs Public Prosecutor Federation of Malaya at p 479 Pritam Singh vs State of Punjab AjIR and NR Ghose  Nikhil Ranjan Ghose vs State of west Bengal   applied
iii The question of delay in filing the complaint may be a circumstance to be taken into consideration in arriving at the final verdict
But by itself it affords no ground for dismissing the complaint
444 D iv Section 173 Criminal Procedure is attracted only in a case in vestigated by a police officer under Ch
XIV of the Code followed by a final report
Section 1734 was incorporated into the Code by Central Act 25 of 1955 because of the changes effected in the mode of trials in cases instituted on police reports
Under the new procedure prescribed in section 251A of the Code but for the facility provided to him under section 1734 an accuse person would have been greatly handicapped in his defence
But in a case instituted on complaint like the present and governed by sections 252 to 259 of the Code no such difficulty
arises and the position is as it was before the amendment of the Code
in 1955
444 H 445 G The High Court was wrong in holding that the Legislature did not make available the benefit of section 1734 Criminal Procedure Code in cases instituted otherwise than on police reports by oversight
It is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly445 H v Section 94 1 does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person
It was impermissible for the High Court to read into section 94 Criminal ProcedUre COde the requirements of section 1734 of the Code
The High Court was wrong in indirectly applying to cases instituted on private complaints the requirements of section 1734
446 E F Further the High Court was not justified in interfering with the discretion of the learned Magistrate
Whether a particular document should be summoned or not is essentially in the discretion of the trial court
In the present case the reasons given by the Magistratefor his 440 order were good reasons
Unnecessary interference with the orders of the trial court results in waste of public money and time as had happened in the present case
447 D