Directorate Of Revenue ... vs Kanwarjit Singh And Anr.
2005 Latest Caselaw 536 Del

JUDGMENT

Manju Goel, J.

1. This is a revision petition under Sections 397/401 of the Code of Criminal Procedure (in short the `Code") for setting aside the order of ACMM dated 8.12.1998.

2. The facts of the case are as under:

On 6.1.1988 the officers of the Directorate of Revenue Intelligence (in short `DRI'), Delhi intercepted the truck bearing No.DIL-1677 at Kundli on Delhi-Haryana border and the truck and the occupants thereof were escorted to the office complex of the DRI where the search of the truck resulted in recovery of 520 gold biscuits worth Rs.2.12 crores. After the conclusion of inquiry under Section 108 of the Customs Act and completion of investigation a complaint for offence under Section 135 of the Customs Act, 1962 and Section 85(1)(a) of the Gold (Control) Act, 1968 was filed. The respondent No.1, Kanwarjit Singh, was declared a proclaimed offender on 2.4.1990. During the pendency of the proceedings before the ACMM, New Delhi a petition before the Punjab and Haryana High Court being Crl.Misc.No.350/93 was filed which was decided on 20.10.1993 holding therein that the ACMM, New Delhi did not have the jurisdiction to take cognizance of the offence committed at Kundli within the State of Haryana. The DRI was restrained from giving effect to the warrants of arrest issued against respondent No.1 by the ACMM, New Delhi. It was, however, ordered that the order would not debar the DRI from seeking legal remedies against the petitioner (respondent No.1 herein) before the proper forum. This judgment was challenged before the Hon'ble Supreme Court. However, the Special Leave Petition was dismissed vide an order dated 6.5.1996. A review petition was also dismissed vide an order dated 15.1.1997. Thereafter the DRI moved an application on 26.6.1997 before the ACMM praying for appropriate orders in view of the judgment of the High Court of Punjab and Haryana. Respondent No.2, Virsa Singh, also obtained a similar order from the Punjab and Haryana High Court in Crl. Misc. No.7603-M/95 on 25.7.1997. The Special Leave Petition over this order was dismissed as withdrawn. The respondent Nos.1 and 2 moved the ACMM for dropping the proceedings in view of the judgment of the Punjab and Haryana High Court. The petitions of the DRI as will as of the accused were decided on 8.12.1998 by the impugned order. In view of the judgment of the Punjab and Haryana High Court which had attained finality, the ACMM directed that the proceedings against Kanwarjit Singh and Visra Singh had already been ropped by the Punjab and Haryana High Court and, therefore, they were discharged. The application of the DRI for direction was dismissed.

3. It is contended in the application that the ACMM made a mistake in appreciating the judgment of the Punjab and Haryana High Court and that she committed an error in dismissing the application of the DRI. It is contended that the ACMM should have returned the complaint with all documents and annexures for presentation of the same before the court of competent jurisdiction. It is further pointed out that although these two respondents, namely, Kanwarjit Singh and Visra Singh, were discharged, no orders were made in respect of other accused in the case and the proceedings continued as against them.

4. On behalf of the respondents, the petition is contested. It is contended on behalf of the respondents that the judgment of the Punjab and Haryana High Court has become final on dismissal of the SLP against this judgment in both the matters and nothing mode is required to be done. It may be stated here that the concluding part of the judgment of the Punjab and Haryana High Court gives the clue to the solution to the case. The relevant part is:

"15. Since there is a manifest defect of jurisdiction in the Court of the ACMM, New Delhi to take cognizance of the offence committed at Kundli within the State of Haryana, the execution of the warrants against the petitioner will amount to interfering with his liberty otherwise then in due course of law. The respondents are, thus, restrained from giving effect to the warrants of arrest issued against the petitioner by the Court of ACMM, New Delhi and from arresting him and also from proceeding further with this complaint. This order, shall however, not debar the respondents from seeking legal remedies against the petitioner before the proper forum. With these directions, this petition stands disposed of."

5. The Punjab and Haryana High Court merely held that there was a defect in jurisdiction and that the petitioner before it could not have been arrested by virtue of the warrants issued by the ACMM, New Delhi. It did not hold that there was no sufficient evidence against him nor did it hold that the the accused was innocent.

6. The way in which a defect in jurisdiction has to be handled is to be found in the provisions of Section 201 of the Code, which is as under:

"201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall,-

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect.

(b) if the complaint is not in writing, direct the complainant to the proper Court."

7. The ACMM was required to resort to the provisions of Section 201 of the Code which required that a complaint filed in a court not competent to take cognizance has to be returned for presentation to the proper court. Had the ACMM done so, the direction of the Punjab and Haryana High Court given in the judgment mentioned above would have been properly complied with. Apart from the directions in the judgment of the Punjab and Haryana High Court, the Code also required the Magistrate to return the complaint of the DRI as per the provisions of Section 201 of the Code.

8. The learned counsel for the DRI makes a request that the ACMM be directed to return the complaint and further to hold that the impugned order of dropping the proceedings be not treated either as an order of discharge or as an order of acquittal. I full agree with the learned counsel for the DRI. The respondents could not have escaped prosecution simply because of a mistake in presenting the complaint in the proper forum. The provisions of the law as well as the directions of the Punjab and Haryana High court both require that the petitioners be prosecuted at the appropriate forum. I, therefore, set aside the impugned order of the ACMM dated 8.12.1998 whereby the ACMM had declined the prayer for treating the order dropping the proceedings as an order of discharge only to the extent directed by the Punjab and Haryana High Court. I direct that the order of dropping of proceedings be read to mean an order of return of the complaint under the provisions of Section 201 of the Code. The petitioner may present the complaint at the appropriate forum for trial according to law.

9. The trial court record has been received. I find that by an order dated 22.2.2001 the successor ACMM decided an application filed by the complainant, i.e., the petitioner, for appropriate orders for return of the complaint and the successor ACMM directed the Ahlmad to return the original complaint with all the original relevant documents filed by the complainant along with the complaint in original after retaining a photocopy of the same. Thus, no more orders regarding the return of the complaint is required to be passed. The complaint may be presented before the court having jurisdiction over the matter. The revision petition is disposed of with these directions.