1 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT S.B.CRIMINAL MISC. PETITION NO.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad. vs. Damodar Singh Rajpurohit. DATE OF JUDGMENT ::: 10.7.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.KS Nahar, for the petitioner. Mr.Harish Purohit, for the respondent. - - - - - BY THE COURT: REPORTABLE Heard learned counsel for the parties. This criminal misc. petition under Section 482 Cr.P.C. has been preferred to challenge the order of Revisional Court (Additional Sessions Judge No.1, Jodhpur) dated 4.10.2004 by which the revision petition against the order of Special Court (Economic Offences), Jodhpur dated 12.7.2001 was dismissed. 2 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit The facts in brief are that a complaint under Section 135 of the Customs Act, 1962 (for short 'the Act of 1962') was submitted in the Special Court (Economic Offences), Rajasthan, Jaipur which was transferred to the Court of Additional Chief Judicial Magistrate (Economic Offences), Jodhpur. In the complaint, the petitioner and one Raskhan were arrayed as accused. As per the prosecution case, on 1.3.1992 in the night, the officers of the customs department intercepted one Fiat car at about 5:15 AM (in the morning of 2.3.1992) and they tried to stop the vehicle, then instead of stopping the vehicle, the driver increased the speed to run away. The customs officers followed the fiat car and ultimately stopped that car. In the said car, 4 persons were sitting. Immediately when the car was stopped by the customs officials, all the 4 persons ran in different direction. To prevent them from running, air fire was made and ultimately, out of 4 persons, 2 persons, who were accused in the trial court, were caught. Two other persons succeeded in escaping. In the vehicle, 22 bricks of silver in one packet, 42 silver bricks in another and from one door of the car, 421 gold biscuits with foreign mark were recovered. Both the accused were interrogated but they could not give any satisfactory 3 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit explanation for possessing the said articles and ultimately, they admitted that those silver and gold articles were brought from foreign country illegally. The car had number on its plate as RJ 19 C 2332. The articles were got examined. The statements of both the accused were recorded under Section 108 of the Act of 1962. A complaint was filed against these two accused for commission of offence under Sections 135(1)(a), 135 (1)(b) and 135(1)(t) of the Act of 1962. After hearing the arguments for framing the charge, the trial court vide order dated 12.7.2001, after considering the statement of the accused respondent Damodar Singh given under Section 108 of the Act of 1962, held that the respondent was driver of the vehicle in question and he was engaged to drive the vehicle for going to Jaisalmer and further to Devikot. The trial court observed that the respondent stated that he was afraid of other accused that he may be killed by them in case he will open his mouth. From the statement of the respondent, the trial court reached to the conclusion that the driver respondent had no knowledge that in the vehicle, other persons are carrying contrabands and transporting silver and gold articles illegally. On the basis of the above finding, the trial court discharged the respondent from the 4 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit charge referred above. However, Raskhan was charged under Section 135(1) of the Act of 1962. The department preferred revision petition before the Court of Sessions Judge which was ultimately dismissed by the learned Additional Sessions Judge No.1, Jodhpur vide order dated 4.10.2004. Hence, this misc. petition under Section 482 Cr.P.C. Learned counsel for the petitioner vehemently submitted that the trial court proceeded under wrong assumption and looked into the defence set up by the accused at the time of framing of charge instead of presuming the allegation to be true of the prosecution so as to give opportunity to prosecution to prove the case. It is submitted that it is settled law that at the stage of framing of a charge, the defence of the accused could not be looked into. Learned counsel for the petitioner further submitted from the statement of accused petitioner under Section 108 of the Act of 1962 that the prosecution case stands fully proved by the admission of the accused petitioner. Learned counsel for the respondent vehemently submitted that once the revision petition is dismissed 5 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit by the revisional court, then the petition under Section 482 Cr.P.C. is not maintainable as it would amount to entertaining the second revision petition. Learned counsel for the respondent further vehemently submitted that one of the co-accused who also had same set of allegations against him has already been acquitted by the appellate court though he was convicted by the trial court. It is submitted that it is a case of the year 1992 and more than 16 years have passed. It is submitted that in view of the fact that the co-accused has been acquitted by the court below after trial and in appeal, therefore, no useful purpose can be served by holding trial against the respondent. Learned counsel for the respondent further submitted that in fact, it was a case of no evidence and the respondent who was a poor driver, unemployed and engaged for one trip, has been trapped either by the persons who were engaged in the illegal activities or because of his misfortune that he became the driver of these persons. It is submitted that there is no allegation except that he was driver in the vehicle. It is submitted that the driver could not have any knowledge of the articles which were hidden in the vehicle. It is further submitted that the statement of 6 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit the respondent under Section 108 of the Act of 1962 and the statement of co-accused Raskhan are of same nature and the allegation of the prosecution is that Raskhan also ran from the vehicle, therefore, the allegation against Raskhan were also of being present in the vehicle in which these goods were found. In view of the above reason, learned counsel for the respondent submitted that this misc. Petition may be dismissed. I considered the submissions of learned counsel for the parties and perused the record also. The allegations against the accused are that he was running car in question wherein gold and silver in huge quantity were there. It was the time of midnight that the vehicle was going and when the customs officials tried to stop the vehicle, the vehicle ran fast. It is the defence of the respondent that he ran fast at the instructions of co-passengers who hired him for running the vehicle. Then in the statement under Section 108 of the Act of 1962, the respondent admitted that he tried to ran away from the place immediately after stopping the vehicle and he admitted that the custom officials fired in air, then only, he stopped. The illegal commodities were recovered from the vehicle 7 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit in question which were not in open but kept hidden in the vehicle. The explanation given by the respondent under Section 108 of the Act of 1962 at the most can be disclosure of defence of the respondent on which he can rely upon during trial, when his turn comes for defending his case. The explanation itself cannot be a ground for holding that that explanation is a gospel truth and the prosecution allegations are false. In totality, looking to the entire events and the conduct of the petitioner, there was sufficient material for framing the charge. At this juncture, it will be appropriate to observe that at the time of framing of the charge, the Court is not required to examine as to whether on the basis of the evidence on record, the accused can be convicted or not ? It is true that the powers under Section 482 Cr.P.C. are not readily exercised by the High Courts and particularly, when the two courts below have reached to the conclusion that it is not a fit case to proceed against the accused but when the very basis and foundation on the basis of which the courts proceeded appears to be just contrary to the settled legal position and when it appears that the allegations are of grave nature, then to see that justice be done and when dropping of the proceedings is against public 8 SB Criminal Misc. Petition No.495/2005 Adhikshak (Abhiyojan) Kendriya Utpad vs. Damodar Singh Rajpurohit interest, then the Court can certainly exercise the powers under Section 482 Cr.P.C. as non-exercise of the powers by the Court under Section 482 Cr.P.C. may also result into miscarriage of justice and that justice to public and sometimes that may cause injustice to the country. Looking to the above facts, this Court is of the view that the order passed by the revisional court dated 4.10.2004 and the order passed by the trial court dated 12.4.2001 cannot be sustained and deserves to be set aside, hence, set aside. The trial court is directed to frame charge against the respondent under Section 135(1) of the Act of 1962 and proceed with the trial. The record be sent to the trial court forthwith. The accused shall appear before the trial court on 4.8.2008. The trial court is expected to complete the trial expeditiously and preferably on or before 31.12.2008 in view of the fact that the matter is old one. Consequently, this misc. petition is allowed. (PRAKASH TATIA), J. S.Phophaliya