Madras High Court

M/S.Sree Aravind Steels Limited vs The Assistant Commissioner on 2 September, 2025

                                                                                        CRL RC(MD)No.864 of 2025


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                          RESERVED ON                  : 25.08.2025



                                          PRONOUNCED ON                : 02.09.2025

                                                          CORAM:

                                  THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

                                            CRL RC(MD)No.864 of 2025
                                                              and
                                            CRL MP(MD)No.9181 of 2025


                    1.M/s.Sree Aravind Steels Limited,
                      Trichirappalli, D92-94, Industrial Estate,
                      Thuvakudi, Trichirappalli.
                      Rep. by its Managing Director,
                      Arun Shankar.

                    2.Arun Shankar                              ... Petitioners /Accused Nos.1 & 3
                                                               Vs.

                    1.The Assistant Commissioner,
                      GST and Central Excise I
                        Division,
                      No.1, Williams Road,
                      Cantonment,
                      Tiruchirappalli-620 001.                   ... 1st Respondent /Complainant

                    2.M/s.Arudra Steel Rolling Mills (P)
                         Ltd.,
                      (I) No.14-A, EVR Road, Puthur,
                           Trichirappalli,
                      (ii) No. B-1, Ashoka Akshara
                             Apartments,
                      No.21, Vellaimmal Street, Kilpauk,
                      Chennai-600 010.



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                                                                                         CRL RC(MD)No.864 of 2025


                    3.M.Andaperumal,
                      General Manager,
                      C/0. Paragon Steel (P) Ltd.,
                      New Industrial Development Area,
                      Kanjikode, Palghat,
                      Kerala-678 621.                  ... Respondents 2 & 3 /
                                                                   Accused Nos. 2 & 3

                    (P.Sreenivasalu Reddy, (Since Deceased) )



                    PRAYER: Criminal Revision Petition is filed under Section 438 r/w 442
                    of BNSS, to call for the records of the proceedings in Crl.M.P.No.12824
                    of 2025 in C.C.No.05 of 2009 pending before the learned Chief Judicial
                    Magistrate, Tiruchirappalli and quash the order dated 18.06.2025 and
                    grant stay of the proceedings in C.C.No.5 of 2009, pending in the filing
                    of the learned Chief Judicial Magistrate, Trichirappalli, pending disposal
                    of this petition filed by the petitioner.

                                         For Petitioner            : Mr.S.Murugappan

                                                                     For Mr.S.Chandrasekar

                                         For Respondents : Mr.N.Dilip Kumar,
                                                           Standing counsel

                                                            ORDER

The present Criminal Revision Case is filed, challenging the order

dated 18.06.2025, passed by the learned Chief Judicial Magistrate,

Trichirappalli, in Criminal M.P.No.12824 of 2025 in C.C. No.5 of 2009,

whereby the petition filed by the complainant/Assistant Commissioner,

GST and Central Excise, Trichirappalli, under Sections 294 r/w 173(5)

Cr.P.C., 1973, seeking permission to mark the order-in-original dated

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09.08.2023 as an additional document was allowed. The revision

petitioners herein are Accused Nos.1 and 3 in C.C. No.5 of 2009.

2. It is submitted by both the counsels that the 3rd respondent did

not participate in the trial in Criminal M.P.No.12824 of 2025 before the

learned Chief Judicial Magistrate, Trichirappalli. That apart, he is only

the General Manager of the 2nd respondent company and he is not a

necessary party to this case. Memo has also been filed to that effect.

Recording the same, notice to R-3 is dispensed with.

3. Case of the Prosecution/Complainant:

A complaint was originally lodged in 2006 on the strength of

show-cause notices dated 17.08.2004 and 20.10.2004, culminating in

an adjudication order dated 30.12.2005 passed by the Commissioner of

Central Excise. On appeal, the Customs, Excise and Service Tax

Appellate Tribunal (herein after referred to as “CESTAT”) Chennai, set

aside the said adjudication order, holding that excise duty cannot be

demanded from two different entities for the same goods, while leaving

liberty to the department to issue fresh notices. Pursuant thereto, two

fresh notices dated 24.07.2007 were issued, and after due

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representation by Accused Nos.1, 3 and 5, a fresh order-in-original was

passed on 09.08.2023 by the Joint Commissioner, GST, Trichirappalli.

Since this order directly concerns the accused still facing trial, the

complainant sought to mark the same under Section 294 Cr.P.C., 1973,

on the premise that the accused cannot dispute its genuineness.

4. Case of the Accused/Revision Petitioners:

The complaint itself was launched on the basis of the 2004–2005

notices and the order-in-original dated 30.12.2005, all of which were

quashed by the CESTAT in 2007. The sanction order dated 2006 was

founded only on those quashed proceedings; therefore, no subsequent

adjudication order can be relied upon unless fresh sanction is obtained.

The adjudication order dated 09.08.2023 was not in existence when the

sanction order was passed. Introduction of such subsequent documents

would fundamentally alter the substratum of the prosecution. Sections

173(5) and 294 Cr.P.C., 1973, have no application to private complaints

under the Central Excise Act, 1944. Reliance was placed on Assistant

Collector of Customs v. L.R. Malvani1, which clarified that provisions

of Section 173 Cr.P.C. are confined to police reports. The attempt to

bring in documents generated after 2006 is misconceived, as they were

11999 (110) ELT 317 (SC)

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never before the sanctioning authority. Further, the Chief Judicial

Magistrate erred in observing that the 2023 order “was in existence at

the time of complaint,” which is factually incorrect.

5. Findings of the Learned Trial Court:

The Chief Judicial Magistrate extracted Section 294 Cr.P.C.,

1973, and in the absence of any formal proof of admitted documents,

observed that the defence had not disputed the genuineness of the 2023

adjudication order. Invoking Section 173(5) Cr.P.C., the Trial Court held

that since the prosecution had inadvertently omitted to file the

adjudication order, the same could be introduced without causing

prejudice to the accused. It concluded that marking such a document

would aid in “finding the truth” and accordingly allowed the petition.

6. Arguments of the Petitioner’s Counsel:

6.1. This revision petition challenges the order passed by the

Chief Judicial Magistrate allowing the prosecution to mark a document

under Sections 294 read with 173(5) CrPC, 1973. The document in

question, which is the fresh adjudication order dated 09.08.2023 did

not exist when the complaint was filed in 2006. The original complaint

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was based on two show-cause notices issued in 2004 and 2005, which

culminated in an adjudication order dated 30.12.2005. That order,

along with the show-cause notices, was later set aside by the CESTAT in

its order dated 08.03.2007, holding that two manufacturers cannot be

liable for the same goods. The CESTAT permitted the department to

issue fresh show-cause notices and proceed in accordance with law.

6.2. Subsequent Adjudication and Complaint Chronology:

The department issued fresh show-cause notices dated

24.07.2007 to Aravind Steel and Arudhra Steel. A civil miscellaneous

application in CMA(MD)No.3235 to 3238 of 2007 was filed before this

court against the CESTAT order dated 08.03.2007 and the Division

Bench by order dated 05.01.2021, left the legal issue open, directing

adjudication to proceed. The Joint Commissioner, after remand, passed

a fresh adjudication order on 09.08.2023. The prosecution seeks to now

mark this 2023 adjudication order in the pending prosecution initiated

in 2006.

6.3. Section 173(5) Cr.P.C., 1973, Not Applicable:

The 2023 adjudication order was not part of the original

documents perused by the sanctioning authority in 2006 and was not

in existence when the complaint was filed. Section 173(5) applies only to

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cases instituted on a police report and not to private complaints under

special enactments like the Central Excise Act, 1944. Cited Assistant

Collector of Customs v. L.R. Malvani2, which held that 173(4) and by

extension 173(5) do not apply to such cases. Counsel for respondent

conceded this legal point.

6.4. Impropriety of Sanction Based on Later Events:

The sanction order issued in 2006 was based on the original

adjudication which no longer exists. The 2023 adjudication order

imposes liability only on Aravind Steel (A-1) whereas the earlier order

had imposed joint and several liability on A-1 and A-2. Hence, the 2023

order has to be placed before the sanctioning authority to obtain fresh

sanction. Marking the 2023 document without fresh sanction would

render the prosecution illegal. Cited circulars dated 09.08.1990 and

15.06.2007, require sanctioning authority to examine all relevant

documents. Referred to State of Bihar v. P.P. Sharma3, and

Assistant Commissioner of Customs, Chennai v. Athishta Rajan4,

on the necessity of valid sanction.

2 Supra 1

3 MANU/SC/0542/1992

4 2017 (352)E.L.T.333(Mad)

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6.5. Errors in Trial Court Order:

The Chief Judicial Magistrate erroneously held that the 2023

adjudication order was in existence at the time of filing the complaint

this is factually incorrect. Petitioner's counsel pointed out

contradictions in the counter filed by the prosecution on one hand

admitting the order wasn’t foreseen, and on the other suggesting it was

considered by the sanctioning authority.

6.6. Prejudice to the Accused:

The marking of this document would substantially prejudice the

petitioners because it imposes liability solely on A-1, shifting the nature

of the prosecution case. A fresh complaint, if at all, should be filed after

obtaining proper sanction based on the 2023 adjudication.

7. Arguments of the Respondent’s Counsel:

7.1. Concession on Section 173(5) CrPC:

Conceded that the application was erroneously filed under

Section 173(5) Cr.P.C, 1973, which is not applicable to private

complaints. Maintained that despite the error in provision of law relied,

the admissibility of the document is unaffected.

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7.2. Two Parallel Proceedings:

Explained the bifurcation between adjudication and prosecution

proceedings. The original adjudication (2005) was set aside by the

tribunal in 2007. Fresh show-cause notices issued in July 2007

culminated in the 2023 adjudication. The Hon'ble Division Bench of this

Court in CMA Nos. 3235 to 3238/2007 recorded that the department

was proceeding with the fresh show-cause notices and left the legal

issue open.

7.3. Relevance and Admissibility of 2023 Order:

The adjudication order dated 09.08.2023 was passed after due

process. The prosecution only seeks to mark it as evidence its probative

value will be tested at trial. The order is not disputed; therefore, under

Section 294 Cr.P.C., 1973, formal proof is not necessary.

7.4. No Prejudice Caused to the Petitioners:

The 2023 order only strengthens the prosecution’s case. If the

accused claim it helps them, they may rely on it during the trial. The

prosecution merely wants the record to reflect the latest development

and shift in liability. The accused is not prejudiced as the trial court can

still assess the impact of this document.

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7.5. Distinction Between Sanction and Approval:

Contended that under the Central Excise Act, obtaining sanction

is not mandatory only administrative approval is required. The 1990

and 2007 circulars merely create internal checks and balances, not

statutory mandates.

Cited Panchamal Plastics v. Deputy Commissioner of Central

Excise5, to contend that sanction is not mandatory.

7.6. Adjudication and Criminal Prosecution are Independent:

Cited Rimjhim Ispat Ltd. v. Union of India6 (SC, 24.07.2025),

to assert that adjudication and criminal prosecution can proceed

independently and simultaneously. Completion or outcome of

adjudication is not a sine qua non for initiating prosecution.

7.7. Correct Provision is Section 244 Cr.P.C.,1973:

Since the case is instituted otherwise than on a police report,

Section 244 CrPC (warrant cases) applies. “All such evidence” under

Section 244(1) includes additional documents not part of the complaint.

Cited C. Ramesh v. State of Karnataka7, to assert that additional

materials can be brought on record. Section 294 Cr.P.C., 1973, allows

5 2017 (346) ELT 539

6 2025(32) Centax 465 (SC)

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admission of uncontroverted documents without formal proof.

7.8. Analogy with Civil Decree in Cheque Bounce Cases:

Argued by analogy: in cheque bounce prosecutions (Section 138

NI Act), if a civil decree is later passed, that decree can be brought on

record. Similarly, the 2023 adjudication order can be placed before the

criminal court.

7.9. Delay and Trial Pending Since 2006:

Highlighted that the criminal prosecution has been pending since

2006 and one accused has died. Requested that the marking of the

2023 order not be treated as a fatal procedural error and that trial

should proceed without stay.

8. Points for Determination:

(i) Whether Section 173(5) Cr.P.C., 1973, can be invoked in a

prosecution launched under the Central Excise Act, 1944, based on a

private complaint?

(ii) Whether the adjudication order dated 09.08.2023, passed long

after the sanction order, can be introduced in the pending prosecution

7 2025 SCC OnLine Kar 207

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without fresh sanction?

(iii) Whether the Trial Court was justified in permitting the

marking of the 2023 order under Section 294 Cr.P.C., 1973?

9. Heard the learned counsel for the petitioner the learned

counsel for the respondent and carefully perused the materials available

on record.

10. Analysis:

10.1. Applicability of Section 173(5) Cr.P.C., 1973, Section 173(5)

Cr.P.C., 1973, is attracted only to cases instituted on police reports. The

instant case is not based on a police report but on a private complaint

under the Central Excise Act, 1944. The Supreme Court in

Assistant Collector of Customs v. L.R. Malvani8, has categorically

held that Sections 173(4) and 173(5) have no application to such

complaints and the relevant portions are extracted as follows:

“12. 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

8 Supra 1

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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 Section 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 i.e. 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 sub-section(4) 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

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reports. That procedure is now set out in Section 251(A), 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

s.173(4) of 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.

13. We are unable to agree with the learned Judges of the

High Court that the legislature did not make available the benefit

of Section 173(4), Criminal Procedure Code in cases instituted

otherwise than on police reports by oversight. The observations of

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the learned Judges in the course of their judgment that "Even the

great Homer occasionally nods. There is nothing to show that the

legislature has applied its mind to the question of the amendment

of the procedure so far as the investigation of an offence under

the Sea Customs Act 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 173(4) is

clear. The learned judges of the High Court were constrained to

hold that Section 173(4), 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.”

The concession by the prosecution itself before this Court that

invocation of Section 173(5) was erroneous fortifies this position.

10.2. Sanction Requirement:

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Prosecution under the Central Excise Act, 1944, requires prior

sanction/approval from the competent authority. The sanction order

dated 2006 was granted on the basis of the adjudication completed in

2005. That order having been quashed by CESTAT, the substratum of

sanction itself stands effaced. The subsequent order dated

09.08.2023 imposes liability differently and was never placed before the

sanctioning authority.

(i) In State of Bihar v. P.P. Sharma9, the Hon’ble Supreme

Court has held as follows:

“27. The sanction under section 197 Cr. P.C. is not an

empty formality. It is essential that the provisions therein are to

be observed with complete strictness. The object of obtaining

sanction is that the authority concerned should be able to

consider for itself the material before the investigating officer,

before it comes to the conclusion that the prosecution in the

circumstances be sanctioned or forbidden. To comply with the

provisions of Section 197 it must be proved that the sanction

was given in respect of the facts constituting the offence

charged. It is desirable that the facts should be referred to on

the face of the sanction. Section 197 does not require the

sanction to be in any particular form. If the facts constituting the

offence charged are not shown on the face of the sanction, it is

9 Supra 3

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open to the prosecution, if challenged, to prove before the court

that those facts were placed before the sanctioning authority. It

should be clear from the form of the sanction that the

sanctioning authority considered the relevant material placed

before it and after a consideration of all the circumstances of

the case it sanctioned the prosecution.”

(ii) In Assistant Commissioner of Customs v. Athishta Rajan10,

the Hon’ ble Supreme Court reiterated that sanction must be based on

all relevant facts and documents; otherwise, prosecution is vitiated and

the relevant portion is extracted as follows:

“12. Even though the court below held that a sanction

order passed by the Commissioner of Customs was filed along

with complaint, but it was not marked before the Court as an

evidence. The existence of valid sanction is pre-requisite to take

cognizance of offence alleged to have been committed under the

Customs Act. Any case instituted without a proper sanction must

fail because this being a manifest defect in the prosecution, and

the entire proceedings are rendered void ab initio. The Hon'ble

supreme Court in number of cases held that the grant of sanction

is not a mere formaly, but a solemn and sacrosanct act which

affords protection to a persons against frivolous prosecution and

the Court shall also consider whether before granting sanction,

10 Supra 4

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the sanctioning authority was aware of the facts constituting the

offence and apply its mind before granting sanction for

prosecution.”

(iii) The Circular :15/90-CX.6 dated 09.08.1990 which provides

with the guidelines for prosecution under the Central Excises & Salt

Act,1944, mandates as follows:

“2. The guidelines so far issued are not being revised and

incorporated in this letter. These are as unders -

(i) Prosecution should be launched with the final approval

of the Principal Collector after the case has been carefully

examined by the Collector in the light of the guidelines.

(ii) Prosecution should not be launched in cases of

technical nature, or where the additional claim of duty is based

totally on a difference of interpretation of law. Before launching

any prosecution, it is necessary that the department should have

evidence to prove that the person, company or individual had

guilty knowledge of the offence, or had fraudulent intention to

commit the offence, or in any manner possessed mens rea

(mental element) which would indicate his guilt. It follows,

therefore, that in the case of public limited companies,

prosecution should not be launched indiscriminately against all

the Directors of the company but it should be resticted to only

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against such of the Director like the Managing Director, Director

in charge of Marketing and Sales, Director (Finance) and other

executives who are in charge of day-to-day operations of the

factory. The intention should be to restrict the prosecution only to

those who have taken active part in committing the duty evasion

or connived at it. For this purpose, the Collectors should go

through the case file and satisfy themselves that only those

Chairman / Managing Directors/ Directors / Partners /

Executives / Officials against whom reasonable evidence exists

of their involvement in duty evasion, should be proceeded

against while launching the prosecution. For example, Nominee

Directors of financial institutions, who are not concerned with

day-to-day matters, should not be prosecuted unless there is

very definite evidence to the contrary. Prosecution should be

launched only against those Directors/Partners/Officials etc.

who are found to have guilty knowledge, fraudulent intention or

mens rea necessary to bind them to criminal liability.”

(iv) The Government of India, Ministry of Finance (Department of

Revenue ) Central Board of Excise & Customs ,New Delhi vide letter in

M.F.(D.R.)Letter F.No.208/21/2007-CX.6, dated 15.06.2007, has given

instructions regarding launching of prosecution and arrest under the

Central Excise Act,1944, and the relevant portion of the same is as

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follows:

“2. I am directed to say that as per the Central Excise Act,

1944, and Central Excise Officer not below the rank of Inspector

with prior approval of the Commissioner can arrest any person

under section 13 whom he has reason to believe is liable to

punishment under the Central Excise Act or the rules made

thereunder. Further prosecution can be launched under section 9

for the offences covered under section 9(1) of the Act. As per

provisions of section 9AA, prosecution may be launched against

any person, Director, Manager or any other person who is

responsible for conduct of business of the company/firm and is

found guilty of the offences under the Act/Rules. It has been

provided that prosecution may be launched in cases involving

duty amount of Rs. 25 lakh or more. However, prosecution can

be considered in case of habitual offenders irrespective of

monetary limit prescribed, if circumstances so warrant. As per

the procedure laid down for launching of prosecution, the

Commissioner of Central Excise should process and forward the

proposal to the Chief Commissioner (or the Director General of

Central Excise Intelligence as the case my be) in cases which are

fit for launching of prosecution. As per the instructions issued in

this regard, the Chief Commissioner or DG, (CEI) has power to

sanction prosecution. It is also mentioned that the decision to

launch prosecution should be taken by the adjudicating authority

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immediately after the passing of adjudication order.”

Hence, without fresh sanction, the 2023 order cannot be pressed

into service.

10.3. Prejudice to the Accused:

The prosecution contends that the order is not disputed and

therefore can be marked under Section 294 Cr.P.C., 1973. However,

admissibility is not equivalent to relevancy. Merely because a document

is genuine does not mean it can be introduced if it was not part of the

foundation of the prosecution. The 2023 order materially alters the

liability of the accused. Permitting its introduction without fresh

sanction would cause serious prejudice.

10.4. Independence of Adjudication and Prosecution:

It is true that adjudication and prosecution are independent

proceedings as held in Radhe Shyam Kejriwal v. State of West

Bengal11 and reaffirmed in Rimjhim Ispat Ltd. v. Union of India12.

However, independence does not mean that documents created long

after sanction can be retrospectively introduced to sustain an existing

prosecution.

11 (2011) 3 SCC 581

12 6 extracted supra

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11. Accordingly , it is the considered opinion of this court that,

the learned Chief Judicial Magistrate has committed a grave error in

invoking Sections 173(5) and 294 Cr.P.C., 1973, to permit the marking

of the 2023 adjudication order. The impugned order proceeds on the

erroneous premise that the 2023 order was in existence at the time of

complaint, which is demonstrably incorrect. In the absence of fresh

sanction, the subsequent order cannot form part of the existing

prosecution.

12. In final, the Criminal Revision Case is allowed. The order